Seattle Attorneys Blog

Washington Stalking Civil Protection Orders

May 21, 2020 | by Blair & Kim, PLLC

A court may issue a Washington protection order based on stalking behavior. (RCW 7.92.100) Stalking includes repeated actual or attempted contact with the victim, tracking the victim, monitoring the victim’s actions or following the victim. The respondent’s conduct must serve no legal purpose and be conduct that the respondent knows or reasonably should know would intimidate, frighten, or threaten a reasonable person. (RCW 7.92.020) An ex-husband recently challenged a protection order issued against him, arguing his wife had not alleged behaviors that constituted stalking.

The ex-wife petitioned for an order of protection six months after the divorce, alleging her ex-husband was stalking her. She claimed he hired a private investigator to follow her. She also alleged he accessed her bank accounts and social media accounts through her old phone. The trial court issued a temporary restraining order.

The ex-wife testified at the hearing that her ex-husband had accessed her Ancestry account and read her private messages. She said he also accessed her social media accounts and read her private messages. She also thought he accessed the account where her employer reimbursed her expenses. She testified he had hired a private investigator who followed her for about four weeks. She said she felt afraid and threatened.

Title IX Final Rule

May 14, 2020 | by Blair & Kim, PLLC

After much anticipation, the Department of Education (the Department) has finally released its final rule addressing how schools receiving federal financial assistance must respond to sexual harassment allegations. The Department has expressed an intention to provide a fair process to both complainants and respondents. These regulations put in place requirements that will help ensure the protection of the due process rights of students who are accused of misconduct.

The new regulations define sexual harassment to include sexual assault, dating violence, domestic violence, and stalking. The regulations apply the Davis definition to unwelcome conduct sexual harassment. The conduct must be severe, pervasive, and objectively offensive.

The regulations set forth procedural requirements around the grievance and investigation process. Title IX personnel may not have conflicts of interests or bias against either party generally or personally. They must also be trained on the investigation and grievance process, including how to serve impartially and avoid bias. The respondent is entitled to a presumption he or she is not responsible for the alleged conduct until a determination has been made. Upon receiving a formal complaint, the school must provide all known parties with written notice of its grievance process and the notice of allegations with enough detail to allow them for the initial interview. The notice must inform the parties of their right to have an advisor of their choice. The school must provide notice of any additional allegations it decides to investigate.

Washington Supreme Court Vacates Drug Conviction Based on Border Interrogation

May 7, 2020 | by Blair & Kim, PLLC

The Fifth Amendment of the U.S. Constitution protects individuals from being compelled to incriminate themselves. Government agents must inform individuals in their custody of the rights to remain silent and to have counsel, known as the Miranda warning. If the government fails to give a required Miranda warning, any incriminating statements the individual makes cannot be used against him in a criminal case. A recent Washington Supreme Court case examined when an individual held at a border crossing is “in custody” for purposes of Miranda requirements.

As the defendant and his friends were crossing the border to return from a music festival in Canada, they were directed to a secondary inspection area by the border agents. An agent told them to leave their things in the van and wait in the lobby at the secondary area. The door to the lobby was locked, so it was not accessible to the public or other travelers. The individuals in the lobby had to ask for permission and be patted down before using the restroom or getting water. The agents found narcotics on two of the other men who were with the defendant and took them to detention cells.

The defendant was kept in the locked lobby for five hours. The agents found paraphernalia and personal items containing drugs in the van. The defendant and his friend were the only travelers in the lobby. The agents asked the men who owned each of the items and the defendant admitting owning the backpack that had small amounts of heroin and LSD in it.

Court Denies Injunction to Postpone Title IX Disciplinary Hearing

April 28, 2020 | by Blair & Kim, PLLC

Title IX disciplinary hearings can result in severe consequences for a student accused of sexual misconduct. In the past few years, accused students have been challenging Title IX procedures. In a recent case, a student of a private university in Kentucky (the University) sought injunctive relief to delay a disciplinary proceeding.

According to the court’s opinion, John Doe and Jane Doe were involved in an incident in John Doe’s dorm room, the facts of which are disputed. A Title IX investigation was ultimately opened.

John Doe received notice of the investigation and met with the Title IX Coordinator. He was placed on interim social probation and interim suspension from some campus locations. He was not allowed to go back to the residence halls and moved into a university apartment complex. According to the University, John Doe’s involvement as the respondent in two sexual misconduct investigations influenced these sanctions.

Washington Car Accident Settlement Agreement Requires Mutual Assent

April 24, 2020 | by Blair & Kim, PLLC

Following a Washington automobile accident, insurance companies often rush to settle with any injured victims. When injury victims settle too quickly, they may not be fully compensated for their injuries. If the injury victim settles with the insurance company and agrees to release the other driver from all claims, he or she will generally not be able to recover for injuries discovered or treatment received after the release.

A settlement agreement and release is a contract, and contract law applies. To form a contract, the parties must “mutually assent” to the essential terms. Settlement agreements do not have to be in writing under Washington law. In a recent case, an injury victim challenged an alleged oral settlement and release due to a language barrier.

The plaintiff was involved in a vehicle accident and received medical treatment for his injuries. Although the plaintiff’s English is sufficient for his day-to-day activities, he uses an interpreter for legal and medical matters. An insurance representative called him less than a month after the accident to discuss settlement. The call was recorded. The insurance representative stated that purpose of the recording was “to verify that in exchange for [$3,785.51]” the plaintiff agreed to release the defendants “for any and all claims known and unknown for injuries [he] sustained in as a result of the accident…” She asked if he understood and agreed to release the defendants in exchange for $3,785.51.

No Blanket Rule Against Live Testimony and Cross-Examination in Washington Protection Order Cases

April 15, 2020 | by Blair & Kim, PLLC

Courts in Washington protection order cases do not always have to allow live testimony or cross-examination, pursuant to the Domestic Violence Prevention Act. The trial court or commissioner should perform a balancing test, weighing the value of cross-examination against the potential harm to the witness. The Washington Supreme Court has stated that courts must conduct “individual inquiries” to determine if live testimony or cross-examination is appropriate in the particular case. Courts are not allowed to issue a “bright line rule” to prohibit testimony or cross-examination in protection order hearings.

A man recently challenged the denial of his request to cross-examine the petitioner and present his own testimony in a protection order hearing. The petitioner petitioned for a domestic violence protection order against the respondent.

A temporary protection order was entered. At the hearing, the commissioner allowed the petitioner to speak to “add to her declaration.” The commissioner denied the respondent’s attorney’s request to cross-examine the petitioner and present testimony. The commissioner stated, “I’m not going to take testimony at these hearings” and referenced Gourley v. Gourley. The respondent’s attorney argued that case did not hold that cross-examination was always inappropriate in protection order cases. The commissioner stated that the respondent could testify only by submitting a declaration. The respondent agreed to a continuance so he could submit documentary evidence.

Washington Court Upholds Dismissal of Criminal Charges after Finding No Probable Cause Supporting the Arrest

April 7, 2020 | by Blair & Kim, PLLC

Police officers may engage in social interactions with individuals. Some actions or activities, however, can transform the social interaction into a seizure. Under Washington criminal law, an officer must have reasonable suspicion to detain an individual and probable cause to arrest him. In a recent case, the state challenged the dismissal of its case after the trial court found the detention and arrest had been unlawful and suppressed the evidence found in a search.

According to the appeals court opinion, a deputy saw a man and woman sitting on a public sidewalk next to a restaurant at about midnight. There was a “No Trespassing” sign in the restaurant window, but other businesses in the strip mall were still open. When he approached, he asked the pair what they were doing and referenced the sign. The man, who was the defendant in this case, told the deputy they were charging a cell phone. The deputy saw a cord plugged into an outlet outside the building. The deputy asked the defendant’s name. The defendant gave him a name, but the dispatcher found no record of that name. The deputy accused the defendant of lying, and the defendant gave the deputy his real name and admitted there was an arrest warrant out for him. The deputy could not arrest the defendant on the warrant because it was from another jurisdiction. He instead arrested him for providing false information to a police officer and trespass.

The deputy found methamphetamine and cocaine in the defendant’s pockets when he searched him following the arrest. The defendant was charged with possessing a controlled substance, but not with trespass or providing false information.

New Title IX Enforcement Initiative to Address Sexual Violence in K-12 Schools

March 29, 2020 | by Blair & Kim, PLLC

Sex-based discrimination is prohibited in education programs and activities that receive federal financial assistance pursuant to Title IX of the Education Amendments of 1972. Discrimination based on sex includes sexual harassment, sexual violence, and gender based harassment. Although the focus of Title IX has generally been on post-secondary education, Title IX also applies to public schools and school districts.

Following regulatory guidance during the Obama administration and increased pressure from the media and the public to address sexual harassment and sexual violence, many colleges and universities changed their investigatory and disciplinary policies and procedures. Unfortunately, some of these changes came at the expense of the accused students’ rights. Although the current administration has withdrawn the guidance that lowered the standard of proof and discouraged cross-examination in student sexual misconduct investigations, colleges and universities still fail to ensure accused students receive due process.

Recently, the United States Department of Education announced a new enforcement initiative to address sexual harassment, sexual assault, sexual misconduct, and sexual violence incidents in K-12 public schools. According to the press release, the new initiative will “strengthen the ability of schools to respond to all incidents of sexual harassment and assault.” The new initiative will include compliance reviews of schools and school districts, which will involve the review of policies, procedures, and practices for addressing complaints. The initiative will also involve public awareness, data quality reviews to ensure incidents are being accurately recorded and reported through Civil Rights Data Collection, and the collection of additional data.

Washington Father Not Required to Pay Mother’s Attorney Fees after Seeking Protection Order and Custody Modification

March 23, 2020 | by Blair & Kim, PLLC

Sadly, suspicions or allegations of abuse sometimes arise in Washington custody cases. Although there may be circumstances where a party makes an allegation in an attempt to affect the custody case, some parents have sincere concerns about their children. A father recently challenged an order that he pay the mother’s attorney fees related to his motion to modify the parenting plan after he sought a protective order against the mother.

The father claimed he noticed injuries on the child after he picked her up from the mother’s home in June 2017. He said he asked her about them, and she said words in her native language that translated to “Ouwie,” “Hit,” and “Mama.” He took the child to the doctor and the doctor reported finding bruising with small abrasions on her feet and linear areas of bruising on her upper inner forearm. The doctor contacted CPS.

The father claimed he noticed more bruising after picking the child up a few days later. He took her back to the doctor and a nurse practitioner examined her and noted she had bruising on her right periorbital area and healing bruising and abrasions on the top of her feet. The nurse practitioner called CPS, and they recommended calling the police and seeking a protective order. The nurse practitioner called the father and recommended he seek a protective order and not return the child to the mother.

Washington Appeals Court Affirms Juvenile Conviction After Confession Was Wrongfully Admitted at Trial

March 16, 2020 | by Blair & Kim, PLLC

The Fifth Amendment to the U.S. Constitution provides the right to be free from self-incrimination. The police must advise suspects of their rights when they are subject to a custodial interrogation by a state agent. If they fail to give the Miranda warning, then the statements made during the custodial interrogation are presumed to be involuntary and are to be excluded from evidence. A juvenile defendant in a Washington criminal case recently challenged his conviction on the grounds the court erred in admitting the statement he made to the chief of police in the principal’s office.

The fourteen-year-old defendant had been talking about video games with some classmates in one of their middle school classes. The other students said the defendant said something like “he was going to shoot the school.” One student said he did not really take the statement seriously because the defendant said that sort of thing “all the time” and he thought the defendant was joking.

The other student also said the defendant had previously made similar statements he had not taken seriously. This time, however, he was concerned and told the teacher. He said the defendant did not make the statement to anyone individually, but muttered it to himself. He said he was afraid the defendant would hurt someone.