Jerry Ray Bowen was a felon and probable gang member who apparently shot his sawed-off shotgun at his girlfriend’s car as she drove away following a violent break up. Not surprisingly, the police wanted to locate Bowen and his sawed-off shotgun.  The police had heard that Bowen “might be staying at his foster mother’s home,” and obtained a search warrant for her home and any weapons found there.

Augusta Millender, the foster mother, and other members of her family were home when the SWAT team arrived to execute the search warrant.  At 5:00 a.m. they were ordered to leave their home while the police searched for Bowen and his sawed-off shotgun, neither of which were found at the Millender home.  What police did find, however, was Ms. Millender’s own (not-sawed-off) shotgun, and a box of .45 caliber ammunition.  These items were seized.

Ms. Millender, who had been at home sleeping when the SWAT team burst through her front door, filed suit against the police for violating her Constitutional rights, specifically, her right to be free from unreasonable searches and seizures under the Fourth Amendment.

Civil rights claims against police can be uphill battles, but in the right circumstances, the cases are definitely worth pursuing.  Often, the existence of a search warrant forecloses suit under the Fourth Amendment and allows the police to rely on “sovereign immunity” to avoid responsibility for their misconduct. In the Millender case, however, the 9^th Circuit Court of Appeals held that the police were not immune from suit because even though a judge signed the search warrant, the evidence that Bowen or his shotgun would be found in the Millender home was so scant that no reasonable officer should have believed that there was probable cause in the first place.

Victims of civil rights violations by police officers face a tough battle when they seek compensation from the government.  Pursuing these claims requires skill and experience.  At Douglas, Leonard & Garvey, we have brought cases against police officers and other governmental officials to protect our clients’ constitutional rights.

You know you are about to be fired for doing the right thing, or because you complained about sexual harassment.  You have emails or memos from your boss or co-workers which you know will prove the truth of your allegations.  Can you take them with you if you are fired or when you quit after the retaliation becomes too much for you to endure?

The answer, of course, is that it depends.  The wisdom of taking materials you obtained or where given access to through your employment, so that they might be used in a lawsuit, varies with the circumstances.  If your employer has a policy prohibiting taking work-related materials home with you, or using them for any non-work-related purpose, then sending e-mails home or taking documents with you on the way out may have a negative impact on your case.

When there is a policy against personal use or removal of work-related material, and your employer discovers in the course of your lawsuit that you removed work-related materials from your employer’s premises, it is sometimes possible for the employer to effectively “re-fire” you even after you have left their employment, for violating a company policy.  In those cases where this rule (which is termed the “after-acquired evidence rule”) is applicable, your former employer may be able to use it against you to substantially limit your ability to recover certain damages, particularly lost wages and benefits.

Therefore, if you know your employment situation is looking bleak due to sexual harassment, illegal discrimination, or retaliation for your doing the right thing, you should contact a trustworthy employment lawyer with real trial experience.  One of the things you should discuss, if possible, before you resign or before your employer has a chance to terminate you, is whether to make copies of e-mails and other documents that might help your case.

As a result of a new state law, New Hampshire released its first report on hospital infections occurring during 2009.  The report examines infections that were developed after heart, colon and knee surgeries.

The good news is that the report showed patients developed 134 infections last year while being treated for another condition, which is a number lower than state officials expected based on national data.  On the cautionary side, the report noted a few hospitals did have higher rates for certain procedures that would warrant changes to their current infection prevention practices.

The report was prepared based upon a state law that required disclosure of infection rates.  New Hampshire is among 27 states that require public disclosure of hospital infection rates by each hospital.

This law is an important step in helping protect patients.  There are many stories of patients going into the hospital to be treated for one condition but then develop an infection.  Such infections and complications therefrom can require lengthy and expensive hospitalizations and even can cause death from these unrelated problems.

To view a copy of the link go to New Hampshire Department of Health and Human Services, http://www.dhhs.state.nh.us

A person does not have to be actually driving a car to be convicted of driving while intoxicated in New Hampshire.  There have been numerous cases in which the police have prosecuted drivers who have either pulled over and fallen asleep and not even left the parking lot.

Under New Hampshire law, a person can be charged with DWI if he or she is in “actual physical control” of a vehicle.  “Actual physical control” does not require the driver to be in motion.  People are routinely arrested for being in a car and in possession of the keys while intoxicated.

It sometimes happens that a person does not realize that he or she has had too much to drink until they have begun driving.  From a public safety perspective, the rational thing for the government to encourage a person to do is to pull over and call for help or to sleep it off.  Unfortunately, a car pulled over to the side of the road is likely to attract the attention of the authorities.  If a person is found in a car, in a public place, in possession of the keys, then a DWI arrest and prosecution is likely to follow.

The most highly publicized of these not-driving-while-intoxicated cases involved the former police chief on the Town of Stratham, New Hampshire. According to newspaper reports, the police chief was arrested while sitting in a car parked at the beach.  He allegedly later explained that his wife had recently passed away, and while grieving he drove to one of her favorite places and had a few drinks.  He said he had no intention to drive in his condition.  The prosecution accepted this explanation and ended up dropping the charges.  This was a good decision by the prosecution, but we are left to wonder whether the same degree of understanding would have been given to an ordinary person who was not in the law enforcement field.

The law that allows the police to charge a person for being in “actual physical control” of a vehicle creates a very real problem for the driver who does not realize that he or she is impaired after driving part way to their destination.  The best advice is to call a friend or a cab before getting in the car in the first place.

The vast majority of N.H. divorces are no-fault, based on irreconcilable differences.  The most often cited grounds in fault-based divorces are shown here:

	2000	2004	2008
TOTAL DIVORCES	5,970	5,106	4,913
Irreconcilable differences	5,920	5,042	4,847
TOP THREE FAULT-BASED:
Adultery	26	19	27
Extreme cruelty	7	9	9
Abandonment	2	1	10

For additional information, visit N.H. DIVISION OF VITAL RECORDS ADMINISTRATION at : http://www.sos.nh.gov/vitalrecords/

Facebook, Twitter, etc. are fast becoming a popular tool for employers looking for information about future employees.  The social networking sites, according to one source, are used by 45% of employers to screen potential job candidates.  At least a third of those employers have rejected an applicant because of information they discovered from  social networking sites where the future employee talked about drug and alcohol use, nudity, bad mouthed a former employer, bragged about misconduct or made discriminatory remarks.    This is another reminder that postings on the internet are available for many people to see – even those you don’t intend to read it or use the information.  All of those folks who are having fun on the internet should realize that it may cost them a future job because for employers it’s fast, free and easy and there is a treasure trove of ridiculous information posted by people.  Young people especially enjoy putting their wild and crazy times on the internet for the rest of eternity.  Social networking sites, including profiles, will tell an employer most information they might want to do know but are afraid to ask such as, gender, marital status, religion, age, and even a photograph to help show ethnicity, race, etc.

For future employees, beware of what you decide to post on the internet because it may come back in many ways.

A husband in a divorce could enforce a postnuptial agreement protecting his interest in Florida real estate, Massachusetts’ highest court ruled on July 16, 2010. The parties had entered into a postnuptial agreement after 19 years of marriage in response to problems that had developed in their relationship.  Under the agreement, the wife relinquished any interest in approximately $5 million in Florida real estate owned by the husband through his family’s businesses.

When the parties later divorced, the husband argued that the postnuptial agreement was enforceable because it was negotiated by independent counsel for each party, based on full financial disclosures, and fair given that the husband was obligated to pay the wife $5 million.

The Massachusetts court rejected the notion that postnuptial or “marital” agreements are categorically unenforceable and stated:

“Marital contracts are not the product of classic arm’s-length bargaining, but that does not make them necessarily  coercive. …”

“Such contracts may inhibit the dissolution of a marriage, or may protect the interests of third parties such as children from a prior relationship.  In any event, a marital agreement will always be reviewed by a judge to ensure that coercion or fraud played no part in its execution.”

New Hampshire legislation allows for premarital agreements but the legislation, when enacted decades ago, deleted a provision for post-marital agreements.  Thus, the same result here is not clear given our legislative history.

Last year was wet, with many rainy weekends.  This year has been sunny and dry and has brought out motorcycles in greater numbers.  The early warm weather has made this year more rideable.  Unfortunately, with the warm weather, the State police report that more motorcycle operators have died in New Hampshire this year than this point in 2009.  If the number of fatalities continues at that rate, the total deaths for 2010 will surpass that State’s average of 27 motorcycle operator fatalities.

There are many factors involved in the crashes but we all need to be aware of motorcycles on the roadway to reduce the risks to motorcycle operators.

Budget cuts have left the entire court system in New Hampshire at a dangerous point that is hurting victims.  Because state budget cuts have eliminated judges and court staff, jury trials have been cancelled and cases take longer to move through the system.  For example, this means civil (non-criminal) cases by a patient harmed by medical malpractice or an accident victim seeking compensation won’t have a jury trial for more than a year.

The elimination of civil jury trials benefits insurance companies.  And it doubly impacts those people injured because they have to wait for their day in court – a year or two sometimes – and defendants, like insurance companies, are less inclined to offer reasonable settlements with no trial scheduled.  It is common for insurance companies to try and settle claims with the pressure of facing a jury trial.  Without facing a jury trial, insurance companies are in a position to make unreasonably “low” offers.

Justice is not being done when victims of an auto accident, a wrongful death, medical malpractice or employment discrimination are compelled to accept “low” settlement offers.  Insurance companies will take advantage of the cancellation of civil jury trials.

Researchers at the American Association for Justice identified the “worst insurance companies for consumers.  The list includes companies across different types of insurance, including homeowners and auto insurers, health insurers, life insurers and disability insurers.

The report identifies the “Ten Worst Insurance Companies” as:

1.         Allstate

2.         Unum

3.         AIG

4.         State Farm

5.         Conseco

6.         WellPoint

7.         Farmers

8.         UnitedHealth

9.         Torchmark

10.       Liberty Mutual

The report concludes that many insurance companies do all they can to maximize profits and rid themselves of claims.  To read the complete report, click on the link: Ten Worst Insurance Companies in America