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Judge Joan Shkane -Legal Myths and Reality

Legal Myths and Reality

This is a continuing discussion of Legal Myths and Reality because an informed citizen is always the most successful citizen:

MYTH: A person cannot gift property that does not yet exist.
REALITY: New York State’s highest Court declared in 1961 that a valid gift may be made of property that does not exist yet at the time of the gift. This ruling came from a lawsuit regarding the right to turn the play “Pygmalion” into a musical. The musical that it became was “My Fair Lady”, a real blockbuster both on stage and in film. Gabriel Pascal obtained the rights to produce the musical version of “Pygmalion”. Before his death, he wrote a letter to his secretary confirming that he was giving her a share of his profits from the yet unproduced musical stage version. After his death, arrangements were made to produce the musical. The secretary sought to share in the profits based on the letter giving a gift of a portion of the musical show that was not in existence at the time of the gift. The Court upheld her right to the gift saying that it was valid even though the gift did not exist at the time of the gifting.

MYTH: In a lawsuit about alleged police brutality, the person suing may always see the accused police officer’s disciplinary records.
REALITY: The New York State Civil Rights law prohibits police agencies and other agencies who can see the records, from telling or showing anyone about an accused officer’s disciplinary records. The records are completely confidential and cannot be opened and shared. Those who believe in the reason for the law say that the law was made to shield officers from defense lawyers looking to discredit police testimony. Releasing disciplinary records could prejudice public opinion against police officers, which could cause danger to the public who must rely on police assistance. Those who oppose the law and seek to change it say that this is one of the strictest laws of its kind in the country. They believe that it is against the goal of transparency in government; that the secrecy law hurts police efforts to mend ties in predominantly minority communities; and that it is irresponsible because it causes people to believe that they do not have the right to know about police patrolling their neighborhoods and who can legally use deadly force against them. New laws have been proposed to eliminate or change this secrecy law.

MYTH: The federal U.S. Immigration and Customs Enforcement agency (ICE) has unlimited power to arrest and deport suspected illegal immigrants.
REALITY: The driving issue today is whether or not ICE can arrest and detain suspected illegal immigrants at the courthouse door, and in courthouse buildings, including those on the way to and from the courts. New state laws are proposed that will limit ICE’s ability to do this. Now ICE must produce a warrant and let the judge of the particular court know that ICE intends to arrest an individual. The new law, if passed, would require ICE to produce a warrant signed by a judge, or a court order approved by a judge, for all arrests, including those for non-criminal violations such as a traffic ticket. Between 2016 and 2017 the number of courthouse arrests and attempted arrests in New York State jumped 1,200 percent. Yes, that’s 1,200 percent. Those against these arrests argue that such arrests are undermining the justice system because victims are afraid to call the police for help and to go to court to ensure their safety. The court system itself spends much effort to ensure that everyone has equal access to the courts, and this makes court efforts useless. Those supporting ICE argue that making courthouse arrests is a safe and efficient way to carry out their duties. They attack sanctuary cities that they believe prevent city-run agencies from cooperating with ICE officials. They argue that of the 440 immigrants arrested in 2018 so far for being in this country illegally (even if they have committed no crimes and are living and working peacefully), 40 were criminal offenders who allegedly re-offended. To restrict ICE arrests from the courthouse, they say, would force them to engage in more enforcement in the community, posing increased risks for law enforcement and the public. This continues to be debated in the legislature. The federal government claims priority over the state government, and many states are resisting this claim.

Giving attention to legal myths is not wrong. It can be a starting point for developing an interest in the law. However, if legal issues are important in your life, for instance regarding custody of your children or money payable for any reason, it is wise to consult a lawyer who can advise you on the truth of legal myths. This discussion is not intended to render legal advice on specific cases or to express an opinion on any specific case.


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