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Monday, January 9, 2017

Is Marijuana ..Child Endangerment, but a Loaded Gun is Not??


Why Pot is Child Endangerment...

but a Loaded Gun is Not?

by Russ Belville

11-year-old Benjamin Tiller will spend the rest of his childhood, until age 19, in the custody of the state of Tennessee. Benjamin was just convicted of the cold-blooded murder of 8-year-old McKayla Dyer. Benjamin had gone hunting often with his father and grandfather and had been trained in firearm safety. Benjamin got angry at McKayla in a spat over some puppies, so Benjamin retrieved his father’s shotgun, made sure it was loaded, aimed it out the window and fired a blast to McKayla’s chest.
Meanwhile, the 11-year-old son of Shona Banda is spending his childhood without his mother in Kansas. He had the audacity to tell school officials in his drug education class that their sinister claims about marijuana were unfounded. His mother uses cannabis to treat her Crohn’s disease and he’s well-educated on the subject.
That led to calls to child protective services, who called police, who called a judge to get a warrant. They took Shona’s son away and arrested Shona when they found her cannabis medicine in their home.
Now guess which parent – Benjamin’s father or Shona – is facing child endangerment charges?
Just so we’re clear: the father in the first story taught his kid how to fire a shotgun, took him out to kill animals with a shotgun, and left a shotgun and ammo available to his unsupervised kid, who then straight-up murders a little girl.
The mother in the second story uses cannabis as medicine, taught her kid cannabis was a non-toxic medicine that saves her life, and the kid is not found to have ever ingested cannabis, who then tells the truth about cannabis in a drug education class in school.
OK, which one is facing the child endangerment charge – the father or the mother?
If you guessed the parent whose kid had access to accurate education about cannabis, you are correct.
If you guessed the parent whose kid had access to a shotgun and used it to murder, you are sane, but, unfortunately, also incorrect.
There are so many stories of marijuana consuming-parents (medical or otherwise) whose kids don’t smoke pot who then lose their children and face charges of child endangerment.
There are so many stories of gun enthusiast-parents (hunters or otherwise) whose children shoot and kill people who then keep their children and don’t face charges of child endangerment.
Comment by blog attorney:  This is an interesting question, and although there is heated debate on the issue of firearms, if a minor has been trained to properly handle a firearm, it is highly likely that the child should NOT be using the firearm without adult supervision; meaning, the firearm should not be accessible, and without adult supervision-- the weapon should never likely be accessible unless it was required to save another's life?  In a very unusual case out of Sacramento some years ago, a juvenile (age 14-15 or thereabout)-- accessed a rifle which belonged to his dad, knew how to handle a rifle, and was allegedly pretending to sniper with the gun, by aiming it at passing motorists, but pulling the trigger, allegedly claiming he thought the gun was unloaded? Well, his aim was so good, he killed a person in a car by shooting him in the head. And for that, Judge Jane Ure sentenced the kid to 500hrs of community service. That's all he got, plus perhaps some hours in the juvenile detention center.
It should be noted that murder normally requires the specific intent to kill CA PC187(a)

The Supreme Court has considered over the years, the difficulty in sentencing juveniles to life in prison, see

"This case presents important constitutional questions regarding the propriety of imposing a mandatory sentence of life imprisonment without parole on a 14-year-old child ... ," his petition to the Supreme Court said. "Evan Miller is one of only 73 [U.S.] children who have been condemned to be imprisoned until death for an offense committed when they were 14 years of age or younger. Evan, like nearly all of these young adolescents, was sentenced under a statute that made a life-without-parole sentence mandatory, precluding any consideration of his age or other mitigating circumstances which would call for a sentence of less than lifelong incarceration. ..

Motions for Custody or Support Modifications

One of the most often seen issues in Family Law, are the law and motion hearings on reducing support, increasing support or elimination of support.  Unfortunately in California, most parents are aware that the support formula for calculating support is tied to the visitation.

Increasingly, more fathers are attempting to maintain their rights to their children, which is good for the children in general. However, a pro se client attempting to reduce support usually will have a difficult time unless there are obvious factors for the Court to plainly reduce or eliminate.

In general, your evidence is controlling if you already know the rules or law.  If you don't know the rules or law, it's best to go research it before trying to turn in your documents. It is pretty useless to make an argument using the wrong law, but with online articles and Findlaw, you can usually find almost any case or law unless it just came out yesterday. Also generic Google searches will often turn up scholar articles from law reviews and prestige colleges that not everyone has read.

Because law and motion is a limited time frame, any issues which exceed 15 minutes (in Sacramento, for example)  --- are to be heard on a different hearing basis, a long cause hearing, which will take more time for the Court. In Butte County, in excess of 20 minutes.  Butte County has quite a few local rules involving Family Law which can be seen by looking at the Butte County Superior Court website and then finding the box for Local Rules.

For example, if a case had been continued or not, but they failed to record that, so you show up and your case isn't on the calendar.  Or, you had related cases and one case is not linked to the other cases and you didn't even know it was missing.  Or, a case has a hearing but it is not even listed.  But you show up and no one else is there.  It is a good idea to call the court several days ahead to ensure your motion is actually on the calendar.

Some calendars are horribly long, and some are quite short.  TRAC calendars can be awfully long, awfully crowded, and a big waste of time. We think Butte County might be one of the few, or the only county,  that does not set for trial by using a computer driven date system.

In Sacramento, you can't select a trial date, you can only select a specific date as being unavailable.  The computer sets up all dates after parties have eliminated their UNavailable dates, which makes sense.
And you cannot keep doing it over again (in Butte you can to some extent if the other party after 4 months never has an available date, that is pretty bad.)

Also in Sacramento, most cases are settled at the Mandatory Settlement Conferences, thus creating less work for the courtrooms. Pro tems are used at mandatory settlement which forces the parties to some extent, to cut their losses by agreeing on some things for a change.