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 CAVEAT - The Answers and Opinions expressed on this page are general in nature, and the Answers and Opinions that our office would most likely give you.You should also be aware that many of the Answers and Opinions expressed on this page represent our opinion and do not necessarily reflect the views of the entire legal community! |
McKimmey Law Office, P.C. - 07/05/00 11:35:08
My URL:http://www.geocities.com/jmckimmey
My Email:mckimmey@juno.com
City: Shawnee
State: Oklahoma
Zip Code: 74801
Subject: RESPONSE TO BARBARA - Inheritance
Comments:
In Oklahoma, if your father left no surviving spouse, then any of the children may Petition the Court for probate of the estate.
Where real property is involved distribution cannot be made without a probate if the house was solely in your father's name.
As to the insurance policies, those would be payable to a named beneficiary, not the estate; unless the estate was the named beneficiary.
In probate the personal representative would be able to reach any ‘papers' or other documentation of property that belonged to your father at the time of his death.
The brother wanting the house would not be able to get the house as his portion of the estate unless an equal ‘value' of property would be available to the other siblings; and only if the ‘personal representative' and the other siblings agreed to suc an arrangement.
Apparently the home has been vacant for the past two years - or someone is occupying the house since your father's death. Who is responsible for maintenance, taxes, insurance, etc. on the home? Is rent being collected?
What is the status of the other property of your father - furniture, tools, automobile, etc.
You do need to begin a probate.
You may call our office and we will attempt to answer any other questions you may have.
Barbara Boise - 07/01/00 17:28:56
My Email:bboise65@hotmail.com
City: Shawnee
State: Oklahoma
Zip Code: 74801
How You Found Us: looked up probate/estate
Subject: inheritance
Comments:
My father passed away in May of 1998. Although he told me had a will, we were unable to find one. It was never recorded at the court house. My brothers and myself made the decision to let my oldest brother handle the estate (no papers signed or anything). It has been two years and he still has not done anything. (Estate is worth at least $150,000. I was just notified from an insurance agent, my brother has been cashing in his portion of the policies. We were under agreement (all 4 of us) that the money wou d all be put into an account and then split 3 ways. One of my brothers has decided to take the house instead of any money. (The house is valued at more than any of us would get). I need to know if there is any legal thing I can do to get him to turn the p perwork over to me or an attorney. He is very unstable right now, I dont know what he might do. I've contacted the banks where my father still has accounts, and the accounts have not been touched. If you can help, I would greatly appreciate it.
McKimmey Law Office, P.C. - 06/30/00 11:21:45
My URL:http://www.geocities.com/jmckimmey
My Email:mckimmey@juno.com
City: Shawnee
State: Oklahoma
Zip Code: 74801
Subject: RESPONSE TO KENNY68 - Common Law Marriage
Comments:
If your father already had a wife, he was not legally competent to enter into a common law marriage contract with the other woman - in Oklahoma or anywhere else.
See our website: www.geocities.com/jmckimmey/CommonLaw.html
One Husband and One Wife are all that are allowed at any given time.
Absence, or inability to locate a spouse, does not dissolve any marriage, once created. If your father was never divorced from his other wife, then he is still married. The present significant other is a 'legal stranger' and has no authority to make decisions for him by virtue of any 'common law marriage' status.
However, your father does have the power to grant her such legal authority to act for him by power of attorney - medical authorization form - etc. - even possibly in some rare cases by verbal instructions to third persons to honor the directions of thi other woman.
Medical providers however will insist upon a written document.
If your father is not mentally competent to make rational decisions then any one of the children - or other interested party may seek to establish a guardianship over him. The Guardian would then be able to make the decisions allowed by the Court in its Order appointing a Guardian.
In appointing a Guardian the Courts generally give preference to a spouse, then to children -
In such a proceeding the other woman would first be required to prove the existence of a valid common law marriage in order to have preference.
Many courts in states that do not recognize the creation of a common law marriage within the State, may choose not to recognize one created outside the state when it becomes an issue.
Another wrinkle in your case is that if his real wife cannot be found, and the other woman attempts to prove a common law marriage you may very well face a problem in court of proving that he is still married to someone else, and that no divorce ever occurred.
Some courts take the view that with the passage of time, and the living patterns and habits established by one of the parties there may be a presumption that there was a divorce. i.e. Either of the parties may have actually obtained a divorce n any county or state where he or she met the residency requirements - and you may be required to prove the negative, that there was no divorce, in order to establish the children's right to preference in the appointment of a guardian.
Such a presumption is not common, however, and usually clicks in only after the parties to the new marriage have children and a long term relationship!
Note: Such a presumption does not exist with governmental agencies such as Social Security or Veteran's Administraton. Those agencies insist upon seeing the divorce decree. See our example on our website.
Nonetheless, you need to discuss the possibility of a Guardianship Proceeding with an attorney in your area.
- 06/29/00 17:01:43
My Email:kenny68_1@excite.com
City: baxter springs
State: kansas
Zip Code: 66713
Subject: common law marriage
Comments:
Recently my father was severely injured.
The woman he lives with off and on had him taken to a hospital in oklahoma because they recognized common law marriage.
They live in his home which is in Baxter Springs, Kansas.
He is presently legally married to another woman anyway.
She is making some pretty off the wall judgement calls concerning medical treatment.
Is there anything that we as his children can do about this?
The legal wife cannot be located some of these decisions are life or death and we have been told that waiting will improve the odds. She refuses to wait.
We understand that he is a grown man capable of making his own choices but at this time he cannot make rational decisions
McKimmey Law Office, P.C. - 06/27/00 10:17:32
My URL:http://www.geocities.com/mckimmey
My Email:mckimmey@juno.com
City: Shawnee
State: Oklahoma
Zip Code: 74801
Subject:RESPONSE To MARLIN - Suit Against Bank
Comments:
If you have already in fact been sued on a note wherein the bank is seeking foreclosure you should already have retained an attorney in your area to handle this matter.
If you are able to prove that the bank 'agreed' to renewal of the notes - or even agreed to extend greater credit - but failed to do so then you may have a valid defense to the foreclosure.
Usually such agreements might be made where there is a 'balloon' payment due at the end of a specified period. i.e., the loan is not amortized for the full payment within a given period - with the balance due on a specific date.
However, such agreements are generally difficult to prove since these are generally 'off the cuff' statements by a bank officer - not in writing and generally not in your bank file.
In order to take advantage of such a defense you should also be prepared to prove that every payment to the point when the note should be renewed was timely made - and that in all other respects you have complied fully with the terms and conditions of he note.
As stated at the beginning - you need to discuss your defense to the suit and all of your options with your attorney in your area.
Marlin - 06/25/00 12:09:46
My Email:triplep@dialnetwork.com
City: Ashkum
State: Illinois
Zip Code: 60911
How You Found Us: Lycos search
Subject: law suit against bank
Comments:
Is it possiable to sue a bank for allowing you to overextend yourself, the bank knowing everything you have and what you are doing with moneys loaned. and letting you believe loans would be renewed every year, then not renewing and foreclosing, and can fo closure be stopped in its tracks.
McKimmey Law Office, P.C. - 06/24/00 11:20:24
My URL:http://www.geocities.com/jmckimmey
My Email:mckimmey@juno.com
City: Shawnee
State: Oklahoma
Subject: RESPONSE TO JO ANN - Class of 55
Comments:
We're going to relive the good ole days at the reunion - July 21, 22, 23, here in Shawnee.
Go Wolves!
Do Hope You make it.
Wish you'd left your E-Mail for the Directory - and even more hope you'll take time to leave a message on our Class of 55 Message Board.
Some of our classmates are reliving the good ole days right there! - Some interesting reading, and some neat pictures!
Jo-ann class of 55 - 06/24/00 02:12:31
City: Eufaula
State: Ok
Zip Code: 74432
How You Found Us: visiting class of 55 web site
Subject: You have come a long way from the days out on Harrison at the drive in. Those were the good ole days.
Comments:
McKimmey Law Office, P.C. - 06/24/00 11:20:24
My URL:http://www.geocities.com/jmckimmey
My Email:mckimmey@juno.com
City: Shawnee
State: Oklahoma
Subject: RESPONSE TO JANIS - Wills
Comments:
If the Will has been probated and the property has been distributed in probate, then yours is more a question of property law than one about Wills.
In a probate property is distributed to heirs subject to any defects in title or claims of other persons claiming an interest in the property.
In your case it sounds like your sister is claiming that she owns the property by virtue of some sort of adverse possession since she has lived there for 15 years.
In order to prove adverse possession she must prove that her occupation was open, exclusive, hostile and adverse to the title to the true owner - and that she held the same under some color of title for a statutory length of time - In Okl homa it is 15 years - other states have adopted different periods of time. Flordia may be 15 years, but you need to check on that.
If your sister lived on the property with the permission of your mother then her occupation was not adverse and she should not prevail in a suit brought on those grounds.
Unfortunately in these days anyone can sue anyone for almost anything.
You do need to contact an attorney in your area who is versed in real estate law.
You should feel free to shop around for an attorney with the right qualifications, at a reasonable price.
Janis Castillo - 06/23/00 18:13:35
My Email:bugsy@pcola.gulf.net
City: Pensacola
State: Florida
Zip Code: 32526
How You Found Us: Under Law.com
Subject: Wills
Comments:
My mother left a will stating that she wanted to leave her property to her children and that she wanted it sold and the money divided equally between her children. She made the will at an attorneys office. I am the representive of her will.She passed way last year and I had the will probated. After the will was probated, My brother-in-law and sister wanted all the property and now is suing us for it.
My sister and husband live on the property and have lived there for fifteen years in the house next door to my mother. There are two houses on the property. My mother let them live there for free.
What I would like to know is, how they can sue us, when there was a will? My mother did not want to leave it to them. Thats why she made the will. I thought a will that was fixed by a lawyer would be good and there would be no problems. We have got en our summons and now have to find a lawyer.
Thank you for any information you can give me.
Janis Castillo
McKimmey Law Office, P.C. - 06/16/00 22:39:22
My URL:http://www.geocities.com/jmckimmey
My Email:mckimmey@juno.com
City: Shawnee
State: Oklahoma
Zip Code: 74801
Subject: RESPONSE TO K.J. - Common Law Marriage
Comments:
Thanks For the Question, but we do refer you to our webpage: www.geocities.com/jmckimmey/CommonLaw.html
You Should Find a Full discussion of the Oklahoma requirements for the formation of the Marriage that page.
If in truth and fact there has been a Common Law Marriage, then that is as good as a marriage gets!
The process of dissolving such a marriage is Divorce!
McKimmey Law Office, P.C. - 06/16/00 22:34:28
My URL:http://www.geocities.com/jmckimmey
My Email:mckimmey@juno.com
City: Shawnee
State: Oklahoma
Zip Code: 74801
Subject: RESPONSE TO H. Largent
Comments:
If I understand you, the only children are you and your sister - there was no spouse. Unless there are some children of deceased children, then there would be no difference in the distribution of the estate.
With, or without a will, you and your sister should share the whole estate.
As to the State getting the property - Only in the very, very rarest of circumstances would the property 'escheat' to the State.
The State only has an interest for the payment of Inheritance Taxes.
If your Dad died in July, 1999, there would not be any estate taxes due unless its value exceeded $275,000.00 - if you and your sister were the only heirs.
As to brining the Will into Court - I would suggest you do so - not to seek the probate of the Will, but as an evidentiary matter to show that the 'late found will' is not inconsistent with the wishes of the deceased.
You need to talk to the attorney handling the probate for more assurance in this matter.
H. Largent - 06/16/00 04:47:13
My Email:hlarturtle@yahoo.com
City: Shawnee
State: ok
Zip Code: 74901
How You Found Us: looked for probate in OK
Subject: wills/probate
Comments:
My dad in Shawnee last July, his estate is in probate with out a will right now. A final court date has not been set. I hear that w/o a will the state gets most of it, true? My sister and I have found dad's will now, is it too late to bring it forth and ill it save the estate for us? We are the only heirs, he had no wife and no other children and the will gives us each an equal share. What should we do now? I'm sure we should do it really quick, if it will help us, so if you could tell me soon, I would really appreciate it.
KJ - 06/15/00 02:37:25
My Email:emtsong@aol.com
City: Little Rock
State: AR
Zip Code: 72204
How You Found Us: search engine
Subject: Oklahoma Common Law Marriage statues
Comments:
I would appreciate information about Oklahoma's Common Law marriage requirements. Also what the process for desolving the agreement. Thanks You.
McKimmey Law Office, P.C. - 06/12/00 13:54:00
My URL:http://www.geocities.com/jmckimmey
My Email:jmckimmey@yahoo.com
City: Shawnee
State: Oklahoma
Zip Code: 74801
Subject: RESPONSE TO MARK - False Arrest - Civil Rights Violationse
Comments:
Welcome to the real world of the Criminal Justice System!
Unfortunately jail operators have no real means of separating the 'good guys' from the 'bad guys' in their jails - a combination of underfunding and overcrowding. - and lack of interest by the public, until one of the 'good guys' gets first hand experi nce.
As to your complaint that no one would tell you why your license was suspended - there is no requirement in law that you be informed of any of the details supporting a warrant for your arrest - only the reason for your arrest. You will get that inform tion when criminal charges are actually filed!
In your case the officer apparently checked the computer and it showed only that your license was suspended - and probably did not show the reasons for the suspension.
A law enforcment officer may generally rely upon the computer generated report that your license was suspended, and may therefore make a lawful arrest for the offense of 'driving under suspension' - which was committed in his presence.
As to false arrest or Civil Rights Violations: Generally a law eforcement officer may rely upon the validity of a warrant for arrest valid on its face ( which he does not have to have in his possession ), and may rely upon the computer generate information concerning the status of your driver's license.
If, in truth and fact, the computer generated report showed your license to be suspended, and the information matched your description and driver's license number, birth date, etc., then there would be no 'false arrest' - even if your license had not a tually been suspended!!!!
Whether or not the license was suspended is a matter of fact to be determined at the trial of the case.
If, however, the computer information used by the officer to justify the arrest obviously did not match you - or if there was no report that you had been suspended then you may very well have an action for false arrest and civil rights violations.
Now, to a soap box issue!
Since you mention a new automobile in your letter, and recent change of address, you may need to check with the State Department of Financial Responsibility to find out if your license may have been suspended just because you dropped coverage o an old automobile - or changed insurance carriers.
In many states, including Oklahoma, the law requires that Insurance Companies report to the State whenever an automobile liability policy lapses - or when an automobile covered by a policy has been dropped from the policy.
The State then is supposed to send you Notice of the cancellation and give you an opportunity to explain why the policy has been cancelled, has lapsed, or why an automobile is no longer covered.
If you don't respond then the State may issue an Order suspending your driver's license.
There are many valid reasons for you to drop or cancel an insurance policy, i.e., change of insurance companies, sale of automobile, etc. - but the State may suspend your license even though you do have insurance, just because you have not properly responded to a notice concerning a policy that no longer covers a former automobile, or if you've changed companies!
You may never even know that your license was suspended until you get stopped as in your case.
In our humble opinion this practice of the State is just another example where it presumes that we are all lawbreakers, and that big brother needs to know exactly why we do anything!
Mark Marchione - 06/11/00 02:48:28
My Email:mark.marchione@dana.com
City: Danville
State: KY
Zip Code: 40422
How You Found Us: internet search
Subject: false arrest, civil rights violation
Comments:
6/10/00Hi,
My name is Mark Marchione, and I work as the controller for the Dana Corporation, Victor Reinz facility in Danville, KY. I recently transferred here form South Bend, IN, where I worked as a cost accountant for Dana. I moved here two weeks ago after a cepting the controllership offer.
An incident happened to me yesterday, 6-9-00, as I was returning home to South Bend to visit my family. I was driving too fast on interstate 1-27, and was pulled over by a Danville policeman. I said to myself, "OK - I was going to fast. I'll pay for the ticket and slow it down from now on" The policeman, however, after taking a tremendously long time to run the license through, returned to my car and said that my license was suspended and that I was under arrest. This seemed very strange to me, as I had no prior knowledge of my license ever being suspended. In fact the only thing I knew to be on the license was a speeding ticket back in 1998, which I promptly paid. I told the officer that this had to be a mistake, and asked him to give me the rea ons of why my license was suspended. He told me that he could not provide these reasons.
Anyway, I was forced to leave my vehicle and was told to put my arms in front of my body unto the vehicle. I was then handcuffed and put in the back of the squad car. My vehicle, a $28,000 2000 Dodge Intrepid, was simply left on the side of the road ntil I returned to get it; around 4:00 am the next day.
I was taken to the Danville Police station for mug pictures, fingerprinting, etc. I continued to insist that a mistake had been made, and that this was insane to treat me like a criminal. No one, however, was willing to listen to a word I said.
I was then taken to the jail where I was stripped of all of my personal belongings, including my clothes. I was placed into a black & white prisoner uniform and then escorted to cell 219. As I was booked by the tenant at the jail, I was told that I could place bond to get out. Unfortunately, I had no relatives whatsoever in Danville, KY, as I just relocated from South Bend, IN. The jail tenant then advised me that I could talk to a prison officer, who might drop the bail alltogether, or go to the ell and wait for someone to bail me out. He did say, however, that bail was not likely to be dropped alltogether. He said that this had never happened in the past.
I was very confused at this point, as I still had no idea why I was here in the first place. Let me tell you, do not let yourself be at the mercy of these personnel who are employed at jails and police stations. The intelligence of these individual is highly questionable.
The story continues as I was placed into a cell for the next 8-10 hours. In the cell, I was threatened with rape & violence. The cell was completely full of people I would consider criminals who were worthy of being in such a place. I lay helpless o the concrete floor hoping that I would be able to leave. My family finally arrived at 2:00 am, after driving six hours through traffic. I was finally able to leave the cell and retrieve my possessions that had been taken from me. I was bailed out with $209, and given a statement to appear in Court July 11, 2000.
I am writng you today, because I sincerely feel that my rights have been violated. I have never felt more embarrassed and humiliated in my entire life. I fact, this is one of those events that remains with you forever. I am asking you if there is an possible way to present a lawsuit on these individuals here. I feel that an example should be made here. I will do whatever it takes to see this one through. I feel that a false arrest case or violation of civil rights case would be very possible here
Again, at no time during this entire ordeal did anyone offer me valid reasons for why my license was suspended. In fact, I feel that it is not suspended at all, or suspended by mistake if anything. I feel that these are the issues that need to be co pletely resolved before someone is placed in jail.
Please E-mail or call me as soon as possible. I will be at work first thing Monday morning. (Work Phone 606-238-2559)
Thank you,
Mark Marchione
McKimmey Law Office, P.C. - 06/09/00 11:39:55
My URL:http://www.geocities.com/jmckimmey
My Email:mckimmey@juno.com
City: Shawnee
State: Oklahoma
Zip Code: 74801
Subject: RESPONSE TO RUTH - False Arrest
Comments:
This would not be a 'false arrest'.
If the warrant for arrest was validly issued then the arrest was authorized by law - and therefore not a false arrest.
Law enforcement officers making an arrest have a right to rely upon the validity of a warrant which is valid on its face - and they would not have any liability for making the arrest.
Unfortunately the type of problem you recite is not that uncommon.
Many times warrants may be issued by mistake - or more commonly a warrant may have already been served or withdrawn, but the information that the warrant has been withdrawn never reaches the officers who have notice of the existence of the warrant.
It may, in some instances, be possible to bring an action against the state or municipality for the negligence of it's employee which may have caused you damage.
District Attorneys generally have what is called prosecutorial immunity from suit for most of what they do in acting in that capacity. Whether this type of negligence falls within that area will be a question of law.
Whether you may have an action against any State or municipality will depend upon the laws of the State where the incident happened - in this case, Oregon.
You also asked about suing the attorney. If his negligence caused you damage then you may bring a lawsuit against him.
You should discuss your options with an attorney in your area more conversant with Oregon Law than I am.
ruth coen - 06/08/00 21:16:13
My Email:rcoen@providence.org
City: Medford
State: Oregon
Zip Code: 97504
How You Found Us: Just lucky
Subject: false arrest
Comments:
My son had a reckless driving charge. He obtained an attorney who said they would notify him when he was to appear in court. Several months went by and the police came to our house with a warrant for his arrest for not showing up in court. His attorney said that the D.A. never notified them, and the letter of notification to us was never received because they (the D.A.'s office mailed to the wrong address and was returned to them.
My son ended up having to be handcuffed, arrested and taken to jail for the night.
When word got out to DA's office from attorney, they kicked him our of jail really fast... This is false arrest - is it not? and can we sue the D.A.'s office or the attorney.
The attorney was paid up front for services and my son still ended up in ail.
Would appreciate advice.
Ruth Coen
McKimmey Law Office, P.C. - 05/22/00 15:46:16
My URL:http://www.geocities.com/jmckimmey
My Email:jmckimmey@yahoo.com
City: Shawnee
State: Oklahoma
Subject: RESPONSE TO DAWN - Adoption & Name Change
Comments:
You did not say whether or not you were ever married to the natural father of the child, or to any other person, so I will start with a little black letter law applicable in Oklahoma.
If the child was born within 10 months of the date of a divorce between you and any person, then there is a 'presumption' in law that the person you were divorced from is the natural father of the child. This presumption is 'rebuttable', either by yo or the purported father.
On the other hand, if the child is one 'born out of wedlock', i.e., you were not married, nor divorced within 10 months of the birth, then in "theory", the child may be adopted by another person without the consent of the natural father.
However, in either case, the 'natural father' or the 'presumed natural father' must be given 'Notice' of any pending adoption proceeding - and be given an opportunity to be heard in the proceedings.
You will definitely need an attorney for 'adoption proceedings'. Every time the legislature meets - or the Supreme Court makes a decision on adoption, the proceedings to adopt become more complicated and unwieldy.
As to a name change - this is a far more simpler procedure, but it is our opinion that it might be the better practice to give the natural father notice of those proceedings, even though the child never bore his name.
We are also going to make a comment.
Since you are not presently married to the person who may be planning to adopt the child we would strongly recommend that no adoption take place until you and your new husband have been married for several years!
An adoptive parent immediately takes on the legal responsibilities of full support of the child - in the event of subsequent divorce.
And the adoptive parent immdeiately acquires a right to request, and perhaps obtain custody and visitation, in the event of a subsequent divorce.
We strongly recommend that 'newly weds' never inititate adoption proceedings.
Dawn - 05/20/00 22:55:36
My Email:dawn-jarrod-bailey@msn.com
City: McLoud
State: OK
Zip Code: 74851
How You Found Us: surfing
Subject: adoption/namechange
Comments:
I wanted to know my rights on adoption or name change for my daughter. There is no father listed on the birth certificate. Also has never seen the father. She is now nearly 4 and a half years old. I am about to get married and want to know what I woul have to do for my husband to adopt my daughter.
McKimmey Law Office, P.C. - 05/20/00 11:03:25
My URL:http://www.geocities.com/jmckimmey
My Email:jmckimmey@yahoo.com
City: Shawnee
State: Oklahoma
Zip Code: 74801
Subject: RESPONSE TO SCOTT THURMAN - Prenuptial Agreement
Comments:
Our office strongly recommends that persons getting married recognize that marriage is a contractual relationship having long term economic consequences. - Much like entering into a business partnership.Anytime there is a disparity between the resources of the parties they should have a prenuptial agreement describing the separate property of the parties, and what should happen to the property in the event of divorce or the death of one of the partie .
Such an agreement would cover separate property owned by the parties prior to the marriage, but in most cases not the income of the parties after the marriage - or property acquired after the marriage.
See our webpage: www.geocities.com/jmckimmey/prenuptial.html.
However, a 'prenuptial' agreement is an agreement that must be made 'pre' nuptial - before the marriage.
If the parties actually entered into an 'oral' agreement prior to the marriage, it might be possible in some rare instances to 'document' the prior oral agreement by a 'written instrument' after the marriage. Such a written instrument might serve as n acknowledgment of the prior oral agreement.
However, this would be highly unusual and subject to real dispute in the event of death or divorce.
If I'm not mistaken, Nevada is a 'community property' state and the rules would be different from Oklahoma.
Since marriage and property is a matter of state law your relationship is governed by the Laws of Nevada.
You should contact an attorney in your own community to determine whether or not the type of agreement you referred to could be prepared.
SCOTT THURMAN - 05/19/00 18:57:54
My Email:SGTHURM@AOL
City: HENDERSON
State: NEVADA
Zip Code: 89012
How You Found Us: INTERNET
Subject: PRE NUPTIAL
Comments:
IF TWO PEOPLE ENTER INO A MARRIAGE RATHER QUICKLY DUE TO A PREGNACY, IS THEIR AN AGREEMENT THAT CAN BE PUT INTO PLACE AFTER THE MARRIAGE. NOT ONLY FOR PROPERTY THAT WAS SEPERATE BEFORE THE MARRIAGE BUT ALSO FOR EARNING POTENTIAL, MEANING SOMEONE MAKE A S GNIFICANT AMOUNT MORE THAN THE OTHER
McKimmey Law Office, P.C. - 05/19/00 11:48:09
My URL:http://www.geocities.com/jmckimmey
My Email:jmckimmey@yahoo.com
City: Shawnee
State: Oklahoma
Subject: RESPONSE TO KJ - Fourteenth Amendment - Equal Protection
Comments:
Yes - it is unconstitutional or illegal for a government entitiy to create a rule, law, or other standard that would deny, one class or group a protection, that is available to another.
However, the Fourteenth Amendment is a much debated Amendment, and many Federal Judges do not agree on what constitutes a denial of 'equal protection' - or the denial of 'due process', also a part of the Fourteenth Amendment.
Whether a 'denial of equal protection' has occurred in any given instance is a 'factually determinative' issue - depending upon the specific facts, in a specific case, considering specific circumstances.
In your example you referred to an apparent difference in the difference between the 'equal protection' offered to persons who are incarcerated versus those who are not.
Unfortunately there is no 'blanket' answer to this question and the 'specifics' of your example would have to be thoroughly examined to make a determination - and a 'best guess' of what a court would decide in a particular instance.
If the question has monetary value then you should contact an attorney in Arkansas to determine whether your claim has merit.
Thanks for asking.
KJ - 05/17/00 17:11:09
State: Arkansas
How You Found Us: surfing the net
Subject: Equal protection of law
Comments:
The fourteenth amendment guarantees equal protection to the law, does this mean that it is unconstitutional or illegal for a government entitiy to create a rule, law, or other standard that would deny, one class or group a protection, that is available to another? For example, persons who are incarcerate may have a claim/protection that a person who is not incarcerated would not be entitled to. Although the person not in custody's claim is extremely meritous, it is denied simply and only because of this di ference. Is this legal?
McKimmey Law Office, P.C. - 05/15/00 12:13:37
My URL:http://www.geocities.com/mckimmey
My Email:mckimmey@juno.com
Subject: RESPONSE TO YVETTE - Disorderly Conduct
Comments:
Unfortunately cases where the person calling for help through '911' winds up going to jail is all too common - and generally the charge is 'disorderly conduct'.
'Disorderly Conduct' is one of those offenses like 'Public Drunk' that grants law enforcement officers the legal right to make an arrest based on purely 'subjective observations' - and to obtain convictions on very little testimony.
Generally a homeowner, or occupant of the home has an absolute right to tell anyone - including a police officer, if he has no lawful business there, or if the lawful business has been concluded - to leave the home, and may in most instances use such force as is reasonably necessary to eject the 'trespasser' - .
In Oklahoma, and in many states, such force may include 'deadly force'.
However, in your case you 'invited' the police into your home and the original entry was not a 'trespass'.
At the point where they began to abuse the privilege by their words and actions you had a lawful right to withdraw your invitation and had a lawful right to request that they leave - and to use force and language to enforce the ejectment.
However, police officers, once lawfully inside the premises ( at your invitation ) had a lawful right to make a warrantless arrest for any offense committed in their presence.
In your case, they apparently allege that you committed the offense of 'disorderly conduct' in their presence, thereby justifying the arrest.
As to whether you had your rights violated. - Quite likely, if the facts were as you stated.
Apparently the police officers did not choose to charge you with any violations of '911' privileges, or any regulations involving the use of '911'.
It is quite possible that the arrest was pre-textual if no offense had been committed other than you telling the officers to leave. Telling them to leave should never, ever, constitute an offense! - even if rudely done!
My suggestion is that you contact an attorney in your city to discuss the case, including a review of exactly what constitutes the offense of 'disorderly conduct' in your city; a review of record of the officer(s) involved; and obtain a copy of the ncident report, including the statements of all officers present.
McKimmey Law Office, P.C. - 05/15/00 11:38:13
My URL:http://www.geocities.com/mckimmey
My Email:mckimmey@juno.com
Subject: RESPONSE TO TERESA - Unlawful Entry
Comments:
Your facts are rather sketchy and it is diffult to determine exactly what happened.
If your sister made a false affidavit or statement that caused you to be arrested then she may be guilty of a criminal offense in your state - and subject to civil liability to you.
If the police officer that arrested you did so on the basis of a valid warrant then you have no cause of action against him.
You should contact an attorney in you city to discuss the facts of the incident; and of the arrest; and to defend you on the charges.
Teresa Christia - 05/11/00 17:54:11
My Email:chr04@co.henrico.va.us
City: Glen Allen
State: VA
Zip Code: 23060
How You Found Us: Internet
Subject: Unlawful Entry
Comments:
My sister took out a warrant for unlawful entry which supposedly occured Easter Sunday. Myself, boyfriend (daughter's father) and her grandfather had a visit with my daughter (sister has temporary custody) on Easter Sunday--it was scheduled. We stayed f om 5:20 p.m. to 6:30 p.m. Two weeks later (May 8, 2000) I was arrested for unlawful entry. Can I do anything about this?
Mr&Mrs Ron Stoking - 05/11/00 06:04:38
My URL:http://netscape.com
My Email:hanna59@swbell.net
City: Enid
State: Oklahoma
Zip Code: 73701
How You Found Us: internet
Subject: civil action
Comments:
we need a Lawyer. please e-mail us for time and date. Thank You
YVETTE GRIFFIN - 05/11/00 03:44:11
My URL:http://BTCONLINE.NET
My Email:LUCKEDOG@BTCONLINE.NET
City: WAYNESVILLE
State: GA
Zip Code: 31566
How You Found Us: LINKS
Subject: DISORDERLY CONDUCT IN MY OWN HOME
Comments:
I WAS ARRESTED IN MY HOME.THE REASON IT HAPPENED IS BECAUSE I CALLED 911.THE MAN I HAVE BEEN WITH FOR OVER 5 YEARS SCARED ME.HE WAS SPITTING UP BLOOD AND PASSED OUT FAST,SO I HOLLARD FOR ANYONE IN THE HOUSE TO CALL 911.WHEN I FINALLY GOT HIM TO COME TO,HE TOLD ME TO CANCLE THE 911 CALL.I DID,THEN HE SCARED ME AGAIN.I HOLLARD ONCE MORE,CALL 911.2CALLS WEREMADE FOR THEM TO COME THAT NIGHT.WHEN THE AMBULANCE GOT HERE,ALSO 3 COP CARS CAME.THIS IS A SMALL TOWN.BY THE TIME THEY GOT TO THE DOOR,MY BOYFRIEND HAD L FT OUT THE BACKDOOR.HE REFUSED TO GET MEDICAL HELP.I TOLD THEM THIS.THEY WENT OUT BACK TO LOOK FOR HIM.THEY COULD NOT FIND HIM.ALL THE COPS COME INTO MY HOUSE.ONE OF THEM ACCUSED ME OF COSTING THE TAXPAYERS MONEY AND WASTING THERE TIME ON THE 911 CALL.I W S NOT RESPONSIBLE FOR MY BOYFRIND LEAVING THE SCENE.AFTER THE COP ACCUSSED ME OF THIS,I TOLD THEM TO LEAVE MY HOME.THE SAME COP TOLD ME IF I DIDNT HUSH AND LISTEN TO HIM,HE WOULD ARREST ME.ITOLD HIN NO,AND FOR THEM TO LEAVE.HE ARRESTED ME.I THOUGHT I HAD RIGHT TO TELL THEM TO LEAVE.HE ARRESTED ME BECAUSE I TOLD HIM TO LEAVE AND CHARGED ME WITH DISORDERLY CONDUCT.I NEVER CUSSED HIM OR ANYTHING.HE TOLD MY SISTER DONT BOTHER GETTING ME OUT OF JAIL ,BECAUSE I WAS STAYING THE NIGHT. SHE KEPT ASKING THEM WHAT AVE I DONE.IWAS ARRESTED IN FRONT OF MY SON.THEY DIDNT LET ME OUT OF JAIL UNTILL THE NEXT DAY.DID I GET MY RIGHTS VIOLATED?I FEEL LIKE I HAD EVERY RIGHT TO ASK THEM TO LEAVE.THANKYOU,YVETTE
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