Thread of legal hubbub

PFiDC
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Postby PFiDC » Tue Aug 25, 2020 3:40 pm

Anyone familiar with landlord/tenant law in PA? My old landlord has 6 more days to send me my deposit minus any charges. I have a feeling he won't send anything. PA law says they have to return the deposit and or a list of charges before 30 days or else the tenant is due twice the deposit amount. Is there anything else to that? Do I just file in small claims after the 30 days? I've sent written notice of my new address which is all I can see I have to do regarding this issue.

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Postby tifosi77 » Tue Aug 25, 2020 5:20 pm

If anything is being sent via the USPS, it could take a while.

My vet sends out reminder cards about vaccinations 2 weeks prior to expiration so you can get a refresh before the thing actually times out. We took the dog in for daycare 2 weeks ago, and they said her rabies vax had expired on Aug 4, but we never got a reminder card. So we scheduled the vax and had that done last week and all's good. Saturday, we got the reminder card, postmarked 8/23.

Now, it's entirely possible that the vet simply didn't send out the reminder in time and that they sent out the reminder 3 days after we actually had the vax administered. But it's also possible the piece was sent per usual and then sat unsorted for 6 weeks.

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Postby NTP66 » Fri Aug 28, 2020 10:43 am

@Shyster / @dodint: I have a question regarding the incidents in Kenosha (shootings) that I thought probably fares better in this thread, for obvious reasons. If it doesn't belong, feel free to not answer. When it comes to self-defense, are there any qualifications when it comes to the use of lethal force? Or do you simply need to 'fear for your own life' to make it justifiable? To be specific, I'm referring to the video and reports from the first shooting, where the shooter is being chased by a guy who throws a trash bag at him, not the two people he shot later on.

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Postby PFiDC » Fri Aug 28, 2020 3:58 pm

If anything is being sent via the USPS, it could take a while.

My vet sends out reminder cards about vaccinations 2 weeks prior to expiration so you can get a refresh before the thing actually times out. We took the dog in for daycare 2 weeks ago, and they said her rabies vax had expired on Aug 4, but we never got a reminder card. So we scheduled the vax and had that done last week and all's good. Saturday, we got the reminder card, postmarked 8/23.

Now, it's entirely possible that the vet simply didn't send out the reminder in time and that they sent out the reminder 3 days after we actually had the vax administered. But it's also possible the piece was sent per usual and then sat unsorted for 6 weeks.
True. And I'm going to give it an extra couple of weeks just in case.

I also went through my leases and totalled up the amount I should have paid him over the 2 years. I overpaid $1335 total over 2 years. This includes all deposits and the electric bill which was in his name for the first 10 months of my time there. He owes me $1335 plus my deposit minus damages (of which there were none the damn place was better off when I left than when I moved in). I have a feeling I'm screwed on the overpayment.

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Postby Shyster » Fri Aug 28, 2020 4:32 pm

@Shyster / @dodint: I have a question regarding the incidents in Kenosha (shootings) that I thought probably fares better in this thread, for obvious reasons. If it doesn't belong, feel free to not answer. When it comes to self-defense, are there any qualifications when it comes to the use of lethal force? Or do you simply need to 'fear for your own life' to make it justifiable? To be specific, I'm referring to the video and reports from the first shooting, where the shooter is being chased by a guy who throws a trash bag at him, not the two people he shot later on.
Generally, for self-defense using deadly force, one must have a reasonable belief that one is facing the imminent threat of death or serious bodily harm (which also includes rape). Depending on the state, there might also be an obligation to retreat if one can retreat in safety. Under Wisconsin law, "The actor may not intentionally use force which is intended or likely to cause death or great bodily harm unless the actor reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself."

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Postby PFiDC » Fri Aug 28, 2020 4:51 pm

And, watching the videos, he can probably win with that defense.

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Postby NTP66 » Fri Aug 28, 2020 4:58 pm

Thanks Shyster. :thumb:

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Postby dodint » Fri Aug 28, 2020 5:41 pm

Proportionality. You can generally only respond with similar force, you cannot escalate your response and still be protected by the doctrine (Sally slaps Ron; Ron shoots Sally. Ron has committed murder).

You didn't ask but might be interested in regaining the right to defend when you are the initial aggressor. You cannot goad someone into attacking you and then claim self-defense. But if you do goad someone and then successfully communicate an earnest intent to withdrawal from the conflict, you have regained the right to defend yourself if they continue to advance. The aggressor role has shifted twice.

All of this is a mix of statutory mandate and court interpretations in each individual state. But the stuff discussed above is pretty high level and common in most jurisdictions.

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Postby Shyster » Fri Aug 28, 2020 5:57 pm

:thumb: to that explanation

Wisconsin's specific statute as to provocation says:
(2) Provocation affects the privilege of self-defense as follows:
(a) A person who engages in unlawful conduct of a type likely to provoke others to attack him or her and thereby does provoke an attack is not entitled to claim the privilege of self-defense against such attack, except when the attack which ensues is of a type causing the person engaging in the unlawful conduct to reasonably believe that he or she is in imminent danger of death or great bodily harm. In such a case, the person engaging in the unlawful conduct is privileged to act in self-defense, but the person is not privileged to resort to the use of force intended or likely to cause death to the person's assailant unless the person reasonably believes he or she has exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm at the hands of his or her assailant.
(b) The privilege lost by provocation may be regained if the actor in good faith withdraws from the fight and gives adequate notice thereof to his or her assailant.
(c) A person who provokes an attack, whether by lawful or unlawful conduct, with intent to use such an attack as an excuse to cause death or great bodily harm to his or her assailant is not entitled to claim the privilege of self-defense.

So Sally slaps Ron, and Ron pulls a knife and screams "I'm going to kill you!" If Sally can get away, she must, but if she cannot do so, then Sally could draw her gun and shoot Ron and still claim self-defense even though she provoked the fight.

But, Sally slaps Ron with the hope and expectation that Ron will attack her. Ron pulls a knife and screams "I'm going to kill you!" Sally draws her gun and shoots and kills Ron. Sally has committed murder and cannot claim self-defense because she had the intent to use her slap attack as an pretense to shoot Ron.

There is also often an exception for criminal activity. Ron decides to burgle a house. While inside, he is confronted by homeowner Sally, who starts shooting at him. Ron draws a gun and shoots back, wounding Sally. Ron cannot claim self-defense against Sally because Ron was in the process of committing a felony, and his presence in Sally's house was illegal.

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Postby NTP66 » Fri Aug 28, 2020 5:57 pm

Thanks dodint, I appreciate the insight. I didn’t ask, but now that you mention it, I should have.

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Postby dodint » Fri Aug 28, 2020 6:28 pm

No problem @NTP66

I page you on case you missed Shyster's expansion on the idea. You simultaneously posted and might have looked past it.

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Postby NTP66 » Fri Aug 28, 2020 7:03 pm

No problem @NTP66

I page you on case you missed Shyster's expansion on the idea. You simultaneously posted and might have looked past it.
Good call, because I did indeed miss the post. This is certainly going to be an interesting case moving forward, because I don’t think it’s as clear cut as I’ve seen some say it is.

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Postby tifosi77 » Fri Aug 28, 2020 7:14 pm

There is also often an exception for criminal activity. Ron decides to burgle a house. While inside, he is confronted by homeowner Sally, who starts shooting at him. Ron draws a gun and shoots back, wounding Sally. Ron cannot claim self-defense against Sally because Ron was in the process of committing a felony, and his presence in Sally's house was illegal.
No one picked up on my question in the PDT, so I'll use this to reframe it.

Does unlawful possession of the firearm act as an aggravating factor, either in charging or sentencing? In other words, does it satisfy the criminal activity exception?

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Postby dodint » Fri Aug 28, 2020 7:29 pm

Just looking at the individual charges in this case, most of the charges include this:

Modifier: 939.63(1)(b) Use of a Dangerous Weapon

So, without looking at the statutory scheme I would presume so. But you asked about 'unlawful' possession so I probably missed the mark.

Actual charges/case: https://wcca.wicourts.gov/caseDetail.ht ... de=details

I am on my phone or I would dig deeper into both prongs of your question

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Postby Shyster » Fri Aug 28, 2020 7:33 pm

No one picked up on my question in the PDT, so I'll use this to reframe it.

Does unlawful possession of the firearm act as an aggravating factor, either in charging or sentencing? In other words, does it satisfy the criminal activity exception?

I don't think so. The Wisconsin statute says that one loses self-defense if a person "engages in unlawful conduct of a type likely to provoke others to attack him or her and thereby does provoke an attack." The question would be whether carrying a rifle in public would be something likely to provoke an attack. Since open carry is legal in Wisconsin and people wouldn't have known he was underage, I don't think that would count.

Also, it's not clear to me that carrying was illegal. The open-carry statute has an exception for rifles and shotguns and refers to other sections of law. One of those refers to stuff like sawed-off shotguns, so it doesn't apply. The section for restrictions on hunting and firearm possession by minors (Wis. Stat. 29.304) has rules for those under 12, those 12 to 14, and those 14 to 16, but it doesn't say anything about those 16 to 18, either in terms of hunting or possession and control in general. I might be missing something else, but I don't see anything that I read as prohibiting a 17-year-old from open carrying a rifle (a handgun would be a different matter).

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Postby tifosi77 » Fri Aug 28, 2020 7:38 pm

I thought the Wisconsin statute on carrying a rifle defined the upper age limit of a minor as 14-17?

I also thought the WI law required a minor (as defined) be in the presence of an adult when carrying?

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Postby Shyster » Fri Aug 28, 2020 7:58 pm

Wis. Stat. 948.60 (captioned "Possession of a dangerous weapon by a person under 18") says in subsection 3(c):
This section applies only to a person under 18 years of age who possesses or is armed with a rifle or a shotgun if the person is in violation of s. 941.28 or is not in compliance with ss. 29.304 and 29.593.


Section 941.28 refers to sawed-off shotguns and SBRs. Section 29.593 refers to requirements for a safety certificate for hunters. Section 29.304 (captioned "Restrictions on hunting and use of firearms by persons under 16 years of age") reads in full:
(1) Persons under 12 years of age.
(a) Prohibition on hunting. No person under 12 years of age may hunt with a firearm, bow and arrow, or crossbow.
(b) Restrictions on possession or control of a firearm. No person under 12 years of age may have in his or her possession or control any firearm unless he or she is enrolled in the course of instruction under the hunter education program and he or she is carrying the firearm in a case and unloaded to or from that class under the supervision of his or her parent or guardian, or by a person at least 18 years of age who is designated by the parent or guardian, or is handling or operating the firearm during that class under the supervision of an instructor.
(c) Restrictions on obtaining hunting approval. Except as provided under par. (d), no person under 12 years of age may obtain any approval authorizing hunting.
(d) Restrictions on validity of certificate of accomplishment. A person under 12 years of age may obtain a certificate of accomplishment if he or she complies with the requirements of s. 29.591 (4) but that certificate is not valid for the hunting of small game until that person becomes 12 years of age.
(2) Persons 12 to 14 years of age.
(a) Restrictions on hunting. No person 12 years of age or older but under 14 years of age may hunt unless he or she is accompanied by his or her parent or guardian, or by a person at least 18 years of age who is designated by the parent or guardian.
(b) Restrictions on possession or control of a firearm. No person 12 years of age or older but under 14 years of age may have in his or her possession or control any firearm unless he or she:
1. Is accompanied by his or her parent or guardian or by a person at least 18 years of age who is designated by the parent or guardian; or
2. Is enrolled in the course of instruction under the hunter education program and is carrying the firearm in a case and unloaded to or from that class or is handling or operating the firearm during that class under the supervision of an instructor.
(3) Persons 14 to 16 years of age.
(a) Restrictions on hunting. NoWis. Stat. 948.60 person 14 years of age or older but under 16 years of age may hunt unless he or she:
1. Is accompanied by his or her parent or guardian or by a person at least 18 years of age who is designated by the parent or guardian; or
2. Is issued a certificate of accomplishment that states that he or she successfully completed the course of instruction under the hunter education program or has a similar certificate, license, or other evidence satisfactory to the department indicating that he or she has successfully completed in another state, country, or province a hunter education course recognized by the department.
(b) Restrictions on possession or control of a firearm. No person 14 years of age or older but under 16 years of age may have in his or her possession or control any firearm unless he or she:
1. Is accompanied by his or her parent or guardian or by a person at least 18 years of age who is designated by the parent or guardian;
2. Is enrolled in the course of instruction under the hunter education program and is carrying the firearm in a case and unloaded to or from that class or is handling or operating the firearm during that class under the supervision of an instructor; or
3. Is issued a certificate of accomplishment that states that he or she successfully completed the course of instruction under the hunter education program or has a similar certificate, license, or other evidence satisfactory to the department indicating that he or she has successfully completed in another state, country, or province a hunter education course recognized by the department.
(4) Parental obligation. No parent or guardian of a child under 16 years of age may authorize or knowingly permit the child to violate this section.
(4m) Hunting mentorship program. The prohibition specified in sub. (1) (a) and the restrictions specified in subs. (1) (b) to (d), (2), and (3) do not apply to a person who is hunting with a mentor and who complies with the requirements specified under s. 29.592.
(5) Exception.
(a) Notwithstanding subs. (1) to (3), a person 12 years of age or older may possess or control a firearm and may hunt with a firearm, bow and arrow, or crossbow on land under the ownership of the person or the person's family if no license is required and if the firing of firearms is permitted on that land.
(b)
1. In this paragraph, “target practice" includes trap shooting or a similar sport shooting activity regardless of whether the activity involves shooting at a fixed or a moving target.
2. The restrictions on the possession and control of a firearm under sub. (1) do not apply to a person using a firearm in target practice if he or she is accompanied by his or her parent or guardian or by a person at least 18 years of age who is designated by the parent or guardian.

I don't see anything in that section that refers to those who are 16 to 18. A person who is under 16 may only have possession of a firearm in the presence of a parent or guardian or while hunting with a certificate of accomplishment, but that requirement is not placed on those older than 16. Also, the "parental obligation" portion of the statute also refers only to those "under 16 years of age." So I do not read this statute as placing any restrictions on those older than 16, and Wis. Stat. 948.60 says that persons under 18 can carry rifles and shotguns so long as they are in compliance.

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Postby Shyster » Thu Oct 01, 2020 4:13 pm

As of this morning, my record before the Pennsylvania Supreme Court has improved from 2–0 to 3–0. The Supreme Court ruled 5–2 to affirm the 2018 decision of the Commonwealth Court, which had ruled in favor of my client.

Un – de – feat –ed!

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Postby Troy Loney » Thu Oct 01, 2020 4:18 pm

As of this morning, my record before the Pennsylvania Supreme Court has improved from 2–0 to 3–0. The Supreme Court ruled 5–2 to affirm the 2018 decision of the Commonwealth Court, which had ruled in favor of my client.

Un – de – feat –ed!
Must feel good.

what kind of law do you practice?

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Postby AuthorTony » Thu Oct 01, 2020 4:19 pm

Very cool. Congrats, shyster!

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Postby dodint » Thu Oct 01, 2020 4:39 pm

Awesome!

Glad I already got your autograph before you got famous.

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Postby Shyster » Thu Oct 01, 2020 5:03 pm

what kind of law do you practice?
Primarily commercial and business litigation, with a focus on appellate practice, but I also do other forms of civil litigation, including real estate, government law, constitutional law, and similar areas. Even a little tax law, as much as I hate that. This case had to do with the voting requirements for municipal entities and how many affirmative votes are necessary to pass a motion under the Pennsylvania Municipality Authorities Act when multiple members of an authority's board have recused themselves.

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Postby tifosi77 » Thu Oct 01, 2020 5:05 pm

Shyster is the only 5AFer who footnotes his posts. :wink:

Good for you.

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Postby Troy Loney » Fri Oct 02, 2020 6:24 am

what kind of law do you practice?
Primarily commercial and business litigation, with a focus on appellate practice, but I also do other forms of civil litigation, including real estate, government law, constitutional law, and similar areas. Even a little tax law, as much as I hate that. This case had to do with the voting requirements for municipal entities and how many affirmative votes are necessary to pass a motion under the Pennsylvania Municipality Authorities Act when multiple members of an authority's board have recused themselves.
Good deal. I could definitely see those boards playing fast and loose with the rules.

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Postby Shyster » Thu Nov 05, 2020 5:07 pm

Congratulations to dodint on his admission to the United States District Court for the Western District of Pennsylvania.

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