The private club concept is far from dead, as the United States Fifth Circuit Court of Appeals proved in 1995 when it upheld the private association right of members of a number of social clubs in the City of New Orleans.

In the case of Louisiana Debating and Literary Association v. City of New Orleans, 43 F.3d 1483 (5th Cir. 1995), the Court considered the constitutionality of a city ordinance that had been passed in late 1991 "to eliminate and prevent discrimination" by prohibiting discrimination in "entities" which were considered "public accommodations." The ordinance went on to define a public accommodation as any club which had more than 75 members, provided regular meal service, and "regularly received payment for dues, fees, use of space, facilities, services, meals or beverages, directly or indirectly, either from or on behalf of nonmembers or members for or in the direct or indirect furtherance of trade or business or from or on behalf of any persons who claim such payment as a business expense for tax purposes . . ."

Although the ordinance exempted "distinctly private entities," it required them to be listed in a registry kept by the City. In order to be listed, the "entity" had to apply, go through a public hearing, and prove that it was "distinctly private." Once it met those requirements, the club would receive a certification that would be good for three years, after which it would have to re-apply and go through the process again. Even the certification did not protect the club's status, because during any three-year period in which it was certified, the City or any interested person could initiate a complaint seeking to have the club's "distinctly private" status revoked.

All this was too much for four New Orleans social clubs which sought an injunction in federal court, claiming the ordinance violated their constitutional right to freedom of association.

"When all is said and done," said the United States Court of Appeals, "the City claims primarily that the Clubs are not private,, and are therefore subject to application of [the ordinance], because, notwithstanding their private trappings, long history and exclusivity, they control and dominate business in the City; that despite undisputed evidence to the contrary, the Clubs' business is business."

"But," continued the Court, "the right of private association protects the choice of individuals and organizations to enter into and maintain certain intimate human relationships . . . against undue intrusion by the State . . ." And the rule for determining what constitutes a private association has been laid down by no less an august body than the United States Supreme Court which "considered several factors, including (1) the organization's size; (2) its purposes; (3) the selectivity in choosing its members; (4) the congeniality among its members; (5) whether others are excluded form critical aspects fo the relationship; and (6) other characteristics that in a particular case may be pertinent."

Whether membership in a club helps or hurts a person's business is not one of the factors to be considered. "Obviously," said the Court, "business benefit might spring from any association, meeting or encounter. It is well known that ofttimes it is 'not what you know but who you know;' and people often prefer, in any event, to do business with friends or acquaintances. But this fact alone cannot be the basis for whether a club receives private association protection under the First Amendment. If it were, no club could be private for the purposes fo that protection."

In the end, the United States Fifth Circuit Court of Appeals noted that the four clubs' members shared common social interests and backgrounds; that the criteria the clubs used in selecting members included character, relationships and acquaintances, congeniality, and compatibility. And, like the membership criteria, the processes were very restrictive: "Only existing members may propose a new member, and a proposal does not ensure admission. The Clubs engage in a fairly rigorous screening process to determine whether the prospective new member meets the clubs's criteria. * * * Obviously, the Clubs are not similar to the Jaycees or Rotary. Relatively small in size, they seek to maintain an atmosphere in which their members can enjoy the comradery [sic] and congeniality of one another. * * * Accordingly, they enjoy the fullest protection of their right of private association."

Joseph A. Tringali is an attorney at law, consultant and author of "I Was That Baby," and "Yachting Customs and Courtesies." He was Mayor of North Palm Beach, and currently serves as a Florida Assistant Attorney General. He obtained his Juris Doctor degree from the University at Buffalo in 1970. His website is http://www.josephatringali.com

Featured as a legal resource by Resources For Attorneys, a legal and lifestyle resources directory.

Reducing murder to manslaughter is a task that presents itself in many murder cases. Depending on your state or jurisdiction you may be able to reduce murder to manslaughter by eliminating the element of "malice." Classically, this is where the defendant acts by being provoked into a sudden quarrel or into a state of mind known as the "heat of passion." The mental state of "heat of passion" is not just one emotion. It can be anger, jealously, or any other agitated state of mind in the normal range of human behavior.

If a person is intentionally killed but the defendant was provoked or was in the heat of passion due to some provocative circumstance of the alleged victim, the killing is said to be mitigated to voluntary manslaughter. The defendant cannot just set up his or her own standard of conduct. The situation causing the heat of passion must be such that a reasonable person under the circumstances would have been provoked to act out of passion rather than logic. The classic example given in law schools is where a person comes home unexpectedly and finds their spouse in bed with another person. This is the type of act that could cause any reasonable person to act out of passion and emotion rather than logic.

Usually these cases happen in times of great stress and emotion and a psychologist or psychiatrist should be employed to see if any factors of the mental state of the defendant or victim can be used to reduce the offense to manslaughter. How mental state factors can be used depend upon the laws of the jurisdiction in which the case is being tried.

If it can be shown that the killing was unintentional, but reckless, in some states the case can be reduced to involuntary manslaughter. Involuntary manslaughter carries a significantly lower penalty than voluntary manslaughter. Sometimes what looks like a murder, an intentional killing, is really an accident under extremely stressful circumstances. Note that in some states an unintentional killing, if extreme enough, can be murder. Generally that type of act must be more than recklessness. Typically, to make an unintentional act murder there must exist a callous disregard for human life. In some states those types of acts are called "depraved heart murders."

As an example, a female was charged with murder when she stabbed her husband in the chest with a steak knife. They were in the kitchen making dinner and got into an argument. Because the knife hit a major artery near the heart, he died within minutes. The defendant told two different stories about what happened. She said it was an accident and she didn't mean to kill him. She was prosecuted for murder and taken to trial.

The defense noticed that the location and angle of the wound seemed odd for an intentional stabbing. The blade went in at an angle rather than vertical. This didn't seem consistent with how a person intentionally stabbing another would have stabbed. Also, the blade went right between the ribs in a soft area of cartilage. It seemed unlikely that a non professional could have known this vulnerability and hit it so precisely.

The defense retained a well-known pathologist who totally agreed and testified that all of the circumstances were consistent with an accident and inconsistent with patterns of known stabbings. A psychiatrist also testified to the woman's exaggerated startle response because of beatings from a prior relationship. The defense theory was that she accidentally stabbed her boyfriend when he quickly advanced towards her in the argument. She over-reacted and, without consciously knowing it, thrust her knife hand forward. The knife went through the butter-soft cartilage and pierced the artery. The jury found her not guilty of murder and found her guilty of involuntary manslaughter. Had she not been under the influence of drugs, the jury might have found the act to be a pure accident and totally excused her.

To show that a killing is either voluntary manslaughter or involuntary manslaughter, a thorough investigation, analysis, and reconstruction is mandated. Even if the act was not the type that would justify reducing a murder to manslaughter, the fact that the defendant was in the heat of passion could eliminate premeditation and deliberation and reduce the degree of the murder.

By: William F. Nimmo
William F. Nimmo is a highly regarded San Diego criminal defense attorney who has successfully defended residents statewide for nearly three decades. He has been a San Diego criminal trial lawyer of the year and has been awarded the Directors' Award for Excellence by the San Diego Criminal Defense Bar Association.

Featured as a legal resource by Resources For Attorneys

Private social clubs have endured a great deal of criticism in the past several decades for two reasons: first for the use of the word 'social' which many people consider an affectation, and second for the continued insistence of many clubs on being considered 'private.' Neither of these criticisms is entirely justified. 'Social' is merely the proper word for a convivial group of people, and although 'private' has in some cases has been used as a pretext for outright wrongful discrimination, but it doesn't necessarily mean that.

All private clubs have a right to select their own members, just as individuals have the right to select their own friends. The American Yacht Club was founded in the nineteenth century by financier Jay Gould because members of the New York Yacht Club would not accept him for membership.

No one hesitates to compliment the new bride on her 'discriminating' taste in china, and every parent urges his or her children to 'be discriminate' in the choice of their associates. So what's wrong with 'discrimination?' Nothing. And everything.

The discrimination we so often read about is actually what the United States Supreme Court has called 'invidious class discrimination:' it means the exclusion of an entire group of people for no other reason than their 'class' especially when that 'class' is based on race, gender, religion, ethnicity or any other arbitrary standard which has no legitimate purpose. Can you choose not to have dinner with people who wipe their noses on their sleeves? Certainly. Can you pass a law excluding all Yahoos from restaurants because you once sat across from an Yahoo who wiped his nose on his sleeve? Certainly not. (Those who are extraordinarily sensitive on the subject of discrimination should note there are no 'Yahoos' in the original sense of the word. The name comes from the classic work, Gulliver's Travels by Jonathan Swift. Yahoos were a subjugated race who lived in the land of the Houynhnms. The Yahoos were viewed by the Houynhnms as the lowest class of society.)

Taking that example from one extreme to the other reveals the differences between the concept a 'private' club and how it differs from a 'place of public accommodation.' Can you refuse to invite any Yahoo to your home for dinner because you once had an unpleasant experience with a Yahoo who wiped his nose on his sleeve? Again, you certainly can. It's your home. What if you and your spouse have dinner once a week with two other couples in each other's homes? Can you keep all Yahoos out of your group for the same reason? Sure. Now what if you expand your cozy little clique to the entire block? What if you start soliciting for new members? And then what if the informal block club starts to collect dues and receives a federal tax exemption? Then what if one of the members of your dinner group - an insurance agent - begins offering discounts to everyone who is a member of 'The Block Club?' Can you legitimately exclude that one Yahoo family who recently moved in down the street? Can you exclude them merely because they are Yahoos? Remember, there a very few 'bright line' rules in the law. Legal problems, like coffee, slowly slip from scalding hot to disgustingly cold. Few people have difficulty distinguishing the extremes; lawsuits come from the area in the middle.

The questions raised concerning 'The Block Club' and the fate of the newly-arrived Elbonians are not new; they were considered and answered in a 1983 case from the New York Court of Appeals called United States Power Squadrons v. State Human Rights Appeal Board. (The case first went to the Appellate Division of the New York Supreme Court, which also ruled in favor of the defendant, State Human Rights Appeal Board. The opinion of the Appellate Division can be found at 84 A.D.2d 318 and 445 N.Y.S.2d 565. The Court of Appeals opinion can be found at 59 N.Y.2d 401, 452 N.E.2d 1199, 465 N.Y.S.2d 871). Check with your local law library.

"It all started in 1973," said New York's highest court, when three women attempted to join three local units of United States Power Squadrons. They met all of the qualifications of membership except one: they were female and membership was open to males only. In other words, the ladies were that year's Yahoos.

The ladies brought an action in the New York State Division of Human Rights, which ruled that United States Power Squadrons was as a 'place of public accommodation' under New York law and it was therefore prohibited from discriminating on the basis of gender. The Squadron then appealed to the courts.

The Squadron first claimed it was not a 'place of public accommodation' as that term was defined in New York law because it did not have its own 'place.' 'Wrong,' replied the Court. "Public accommodations are customarily supplied at fixed places, but not necessarily so. * * * It is a term of convenience, not limitation." Home delivery services and services performed in the customer's home may be places of public accommodation.

'Well, then,' argued the Squadron, 'the law doesn't apply to us because we're a private club.' 'Wrong again,' responded the Court. Private clubs don't solicit for members; in fact, "The essence of a private club is selectivity in its membership. It must have a 'plan or purpose of exclusiveness.' * * * Organizations which routinely accept applicants and place no subjective limits on the number of persons eligible for membership are not private clubs." The Court went on to explain that in determining whether a club is private, it would consider whether the club (1) has permanent machinery established to carefully screen applicants on any basis or no basis at all; i.e., membership is determined by subjective, not objective factors; (2) limits the use of the facilities and the services of the organization to members and bona fide guests of members; (3) is controlled by the membership; (4) is nonprofit and operated solely for the benefit and pleasure of the members; and (5) directs its publicity exclusively and only to members for their information and guidance.

'And, by the way,' opined the Court, 'there are lots of other things private clubs don't do: they don't teach safe boating to the public; they don't volunteer time to teach in public schools or prisons; they don't enter into agreements with the federal government to correct their charts; they don't act as agents of the Department of Environmental Conservation; and they don't get tax exemptions for their members' dues.'

'Well,' argued the Squadron, 'this is still America, and under the First Amendment we can freely associate with whom we choose.' 'Really, really wrong,' responded the Court. "It is much too late in the day to challenge the constitutionality of civil rights legislation generally," and we're not going to allow you to challenge the way it applies to you. "Private discrimination may be characterized as a form of freedom of association under the [First] amendment, but 'the constitution places no value on it'" and you are not "entitled to affirmative protection to further [your] discriminatory practices."

In short, in 1983 the highest court in New York State found Untied States Power Squadrons to be 'a place of public accommodation' which could not discriminate in selecting its members from among the people who met the minimum requirement of passing the safe boating examination.

This case should not in any way be taken as a criticism of United States Power Squadrons, which is an outstanding nationwide organization of powerboaters and sailors. U.S.P.S. is made up of some 50,000 public-spirited individuals who have provided and continue to provide valuable services to their fellow-citizens. Nor were they doing anything that wasn't being done by many other clubs at that time. The Kiwanis Clubs, Rotary Clubs, and Jaycees all had similar policies and all ended up with the same result.

But the Power Squadrons case - like the Kiwanis, Rotary and Jaycees cases - serves as a warning to all clubs to 'be what you are.' If you are a national, public-service club which exists primarily for the benefit of the public as well as your own members, take pride in that distinction and follow the rules laid out for 'public accommodations.' If, on the other hand, you are a 'distinctly private' club that wants to remain that way, be private: don't enter into agreements with the government to teach safe boating, or run blood drives, or lease underwater land, or obtain tax benefits for your members. Treat the club as an extension of your living room. And remember, if the question arises, the burden of proving your 'distinctly private' status is on you.

- from Yachting Customs and Courtesies, Joseph A. Tringali, Copyright 2002.

Joseph A. Tringali is an attorney at law, consultant and author of "I Was That Baby," and "Yachting Customs and Courtesies." He was Mayor of North Palm Beach, and currently serves as a Florida Assistant Attorney General. He obtained his Juris Doctor degree from the University at Buffalo in 1970. His website is http://www.josephatringali.com

Featured as a legal resource by Resources For Attorneys, a legal and lifestyle resources directory.

The crime of battery is governed by California Penal Code Sections 242 and 243. Battery is defined as "any willful and unlawful use of force or violence upon the person of another." (PC 242) Battery is defined as "simple" battery and battery with serious injury. The punishments

Before a jury deliberates, the jury is read "jury instructions" by the judge, defining the rules of law that must govern their decisions as to guilt or innocence. The California criminal jury instructions (CALJIC) define battery.

Simple Battery

CALJIC 16.140 defines the elements that must be proved to make a finding of battery. This means that where these elements are not so proved, there cannot be a finding of guilty. The elements are:

"1. A person used force or violence upon the person of another; and 2. The use was willful [and unlawful]."

Simple battery is a misdemeanor, punishable by a fine up to $2,000 or by imprisonment in a county jail up to 6 months, or by both fine and imprisonment.

Battery with Serious Bodily Injury

CALJIC 9.12: Battery with Serious Bodily Injury is defined as:

"Every person who willfully and unlawfully uses any force or violence upon the person of another resulting in the infliction of serious bodily injury, is guilty of the crime of battery with serious bodily injury in violation of Penal Code section 243, subdivision (d) of the Penal Code."

When a battery is committed against any person, resulting in serious bodily injury, the battery is punishable by imprisonment in the county jail not exceeding one year or imprisonment in the state prison for 2, 3, or 4 years. This means that this crime is a "wobbler," so named because it can be prosecuted and punished as either a misdemeanor or a felony.

Defenses

The use of lawful self-defense or defense of others may be used against a charge of either degree of battery. Where one reasonably believes that they are facing imminent bodily injury, they are allowed to defend themselves with the enough of a degree of force to ward off the imminent injury. Thus, this would make it lawful self-defense. The standard utilized is that of reasonableness. It must be reasonable, by an objective person's standard, that the threat was there and the means used was reasonable.

Battery is a general intent crime, meaning that the person committing the battery must intend their own actions, independent of the outcome. For example, if a person commits a battery, such as socking someone in the face in a fight, but misses the intended target and hits a bystander, then his original intended action of throwing the punch is all that is needed to make a finding of battery. But if the person reasonably believed that using his arm and fist to sock someone was necessary in order to avoid imminent physical injury, then the battery charge is incorrect because the force used was lawful.

The burden of proof in a battery case belongs to the prosecution. The prosecution must make a finding of guilty beyond a reasonable doubt. If the jury finds reasonable doubt in the defense's theory of self-defense, then the judge will instruct the jury that they must make a finding of not guilty.

By: Darren Kavinoky, http://www.nocuffs.com

Darren Kavinoky is a Los Angeles-based criminal defense lawyer who practices throughout California. He is the Managing Shareholder of The Kavinoky Law Firm, an 11-lawyer criminal defense firm that handles criminal defense matters exclusively.

Featured as a Legal Resource by Resources For Attorneys.