Practice Areas

Practice Areas - Explained

Civil Rights - Civil Rights are most often associated with constitutional rights, such as the rights guaranteed by the Bill of Rights in the U.S. Constitution and corresponding provisions in state constitutions, such as Article I of the Pennsylvania Constitution. Such constitutional rights include, but are not limited to:

-The right to free speech (First Amendment, U.S. Const.);

-The right of religious liberty (First Amendment, U.S. Const.);

-The right to bear arms (Second Amendment, U.S. Const.);

-The right against cruel and unusual punishment (Eighth Amendment, U.S. Const.) ;

-The right to privacy which prohibits government intervention into certain personal matters (5th and 14th Amends., U.S. Constitution); and, last but not least,

-The right to due process of law (5th and 14th Amends., U.S. Const.).

-civil rights and civil liberties-

‘Civil rights’ includes these constitutional rights, which are often refers to as “civil liberties,” when spoken of in this context. For the present purposes, however, these distinctions are without a practical difference.

Civil rights also include statutory rights. Civil rights may broadly refer to the guarantee of equal treatment and protection of the law. To illustrate, in 1964, the U.S. Congress passed the Civil Rights Act, which outlaws discrimination on the basis of race, color, religion, sex, or national origin. Additional laws were added later on to prohibit discrimination on the basis of age and disability. Disputes of these types often come up in the employment context.

One of our most important civil rights is the protection of due process of law, which prohibits arbitrary government action. This protection, commonly referred to as a civil liberty, is at the core of protections that both the U.S. Constitution and the Pennsylvania Constitution provide. It is guaranteed to all citizens by the 5th and 14th Amendments of the U.S. Constitution and corresponding provisions of the Pennsylvania Constitution, which provide the guarantee of due process of law.

This latter civil right or liberty is perhaps the right which is most overlooked. Regardless of whether a legal matter concerns one of the core enumerated rights, such as the Right to Bear Arms, or an action of a local government official concerning any of the laws or ordinances that govern our everyday life, both concern very important protections from government overreach.

How, exactly, these rights are enforced depends on many different factors. Some rights may be vindicated only in the course of a threatened government deprivation. Some of these rights, when enforced, may constrain or restrain government action in an adjudication, whether in a criminal case or a quasi-criminal / civil proceeding such as a regulatory action. In a perfect world, all wrongful deprivations of individual rights arising out of arbitrary government action would have an appropriate and corresponding civil remedy to the harm. In a perfect world, when an agent of government violates individual rights, they should expose themselves to civil liability in a court of law.

But we do not live in a perfect world. Many of our government officials enjoy some form of immunity. The degree of the immunity may vary. Some is closer to absolute, while others have what is known as “qualified” immunity. ‘Qualified’ in this context means exactly what it says: the protection from civil liability is only partial. Generally, at least in the context of a civil rights suit, qualified immunity is a barrier to a legal remedy unless the government actor clearly and unmistakably acted in a way that deviated from the law.

Qualified immunity can be the bane of civil rights attorneys and potential plaintiffs who seek redress for the conduct of government actors. However, qualified immunity serves a valid policy purpose, which is to give assurance to government officials to act rather than to be too afraid to act. Our laws incentivize that public officials have a bias for action.

Fundamentally, the idea of providing some form of immunity for these purposes is a good thing. However, there is much debate about whether these types of immunities go too far in their protection of government actors to the extent that is a fundamentally unfair to deny a potential plaintiff the ability to purse legal action against an agent of government who violated his or her rights.

The various forms of immunity in addition to what right a plaintiff seeks redress for is a complex legal landscape. Individuals who seek to vindicate their rights should do their research and ensure that any attorney they may choose for representation in these matters is well-versed in these matters.

-administrative law-

Administrative law refers to the law of agencies of government. Our world is much more complex than it was at the time of the 1787 Constitutional Convention in Philadelphia or at the time that state constitutions were signed into law. One of the biggest changes that have come about in reaction to a more complex world is to delegate limited functions to agencies of government. Generally, agencies fall under the executive branch of government and under the direction of presidents and governors, though there are some novel exceptions to this rule in some respects.

The rules promulgated (created) by agencies have profound impact on our lives. These rules include everything from rules made by the Drug Enforcement Administration (DEA) at the Federal level to the Pennsylvania Department of Revenue at the state level, to local taxation and zoning boards at the local level of government. Agencies are given their authority by the legislative power. Congress or the General Assembly must first pass a law which gives the agency the authority to oversee particular matters, make rules, or the authority to adjudicate matters that come within its narrow jurisdiction and authority, or all three.

Agency authority is generally divided into the rulemaking power and the adjudicative power. Agencies make rules to give greater clarification and meaning to law, and these rules can have the force of law. But in order to make a rule, the agency must follow procedures set forth in law, such as the Administrative Procedures Act at the Federal Level or the Agency law in Pennsylvania. If an agency does not follow these procedural rules in making a rule, then it the rule can be attacked on the basis that it does not have the force and effect of law.

Much more commonly, individuals have occasion to interact with agencies in the context of an adjudication. An adjudication is, at minimum, notice and an opportunity to be heard. Due process of law generally always requires that an individual have a right to notice and an opportunity to be heard before the government deprives them of something. There is always an exception to every rule, and the exception to this rule is that notice and an opportunity to be heard about something is not required when the deprivation at issue doesn’t involve an actual bona fide right or liberty interest in the thing to be deprived by government action. This is a complicated issue which has generated mountains of judicial opinions in Federal and state courts.

Administrative law can give rise to complex problems because many administrative law matters do not come with a set of procedural rules such as the Pennsylvania Rules of Criminal Procedure in criminal law. Sometimes, the only law involved in an administrative matter are (1) the original statute giving the agency the authority, (2) a statute prescribing, notice and an opportunity to be heard without any amplifying instructions, and (3) the principles of due process of law which have been interpreted in the many judicial opinions from Federal and state courts, as well as the nonbinding opinions of other agencies or office, which attempt to arrive at the correct answer of what amount of protections should be afforded to an individual.

For this reason, it is crucial that an individual facing a complex administrative law issue should do their research and hire an attorney who is fluent in these concepts and comfortable in operating in environments where the law is less-than-clear.

-firearms law-

Unfortunately for Americans, our law and regulations regarding firearms are extremely complex to the extent that they often confuse attorneys and even judges. Most basically, the federal law establishes who and who is not permitted to possess a firearm, and this is set forth in Title 18, United States Code, Section 922. States can and do often pass additional restrictions on top of the list set forth in 18 U.S.C. 922. Pennsylvania is one of those states that has passed additional restrictions on who may or may not possess a firearm, and this information is set forth in Title 18, Pennsylvania Consolidated Statutes, Section 6105.

While there are many components to both the laws at the Federal level and here at the state level, most individuals encounter legal issues in reference to who may and may not possess a firearm. In American law, the traditional classes of persons who are not permitted to possess firearms are individuals who have been convicted of crime and those who have significant mental health issues to the extent that it involved that person had to be involuntarily committed for psychiatric reasons.

But there are many shades of grey in what these things mean, and there are more modern reasons for denying an individual the right to possess a firearm. Some of these more modern restrictions involved whether an individual is subject to an active restraining order that involves some element of alleged domestic violence and having an unlawful immigration status.

Regarding the traditional classifications, at least for an individual who has a criminal record, the general rule is that if the person has a conviction for a crime for which a period of incarceration exceeding two years is authorized, then the individual may not possess a firearm. In Pennsylvania, this means anything above a Misdemeanor 2. This means that an individual who has been convicted of anything above a Misdemeanor 1 (maximum period of incarceration authorized is five years) has an automatic prohibition against possessing a firearm. What complicates this matter, however, is that the Federal law is actually the basis for the firearms disability - and not the state law for which the person as the conviction. This firearms disability (the term used to describe someone who has been deprived of their 2nd Amendment Right) comes about because of 18 U.S.C. 922(g).

Adding further confusion to the matter is that there is no way to petition the Federal government to have this federal firearms disability removed. While Congress has passed a law that permits an individual to apply to the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) to have this disability removed, Congress has also explicitly prohibited the ATF from spending any money to process these petitions. Practically speaking, and even though there is a law that provides for a mechanism, this mechanism is a dead zombie that cannot be brought back to life unless and until Congress permits the ATF to process these petitions.

Practically speaking, therefore, the only way to remove a federal firearms disability for many individuals is through seeking a gubernatorial pardon. By obtaining a pardon from a state governor for the conviction that gave rise to the prohibition, the reason for the federal restriction in 18 U.S.C. 922(g) can no longer apply. Once an individual obtains a pardon, then he or she may petition the court in which the conviction was handed down to have their criminal record expunged. Once this occurs (and is done properly from an administrative standpoint!), then the individual should no longer be flagged in a background check through the National Instant Criminal Background Check System (NICS) or its Pennsylvania equivalent, the Pennsylvania Instant Check System (PICS) which is operating by the PSP (Pennsylvania State Police).

Another flaw in our system of laws regulating firearms is that not everyone who has a firearms disability is necessarily aware of it. Two examples are important to mention here. First, a person who has been subject to an involuntary committed as set forth in the Mental Health Procedures Act (codified at 50 P.S. 7101 and all that follows) may not be aware they are not permitted to possess. The shortest period of involuntary commitment is set forth in section 7302 of the Act, and this is referred as a “302 Commitment” or a “302 Involuntary Commitment.”

The problem, as history has demonstrated more than once unfortunately, is that many individuals who were committed did not know that they were being committed under this section of the law, these things could have happened decades before when the individual was a minor. Since a 302 does not include the involvement of a judicial officer, many times these individuals who do not receive any notice that they now have a permanent ban against possessing a firearm. Sometimes, unfortunately, these individuals learn of their inability to possess a firearm after they are found in possession of a firearm, which is a serious offense.

Another example, which comes about in the context of Federal law, is unlawful immigration status. I have chosen this particular example because it provides yet another complexity to the matter. Specifically, it often said by judges and attorneys that ‘ignorance of the law is no excuse.’ However, the U.S. Supreme Court opinion of Rehaif v. United States, 588 U.S. ___, Docket No. 17-9560 (2019) demonstrates that this maxim is not exactly true. Rehaif involved an individual who shot a gun at a shooting range after his educational visa had expired. He has charged with a violation of Federal law for persons not to possess firearms. The U.S. Supreme Court overturned this conviction, stating that the individual was not aware of his unlawful status, and that he must have first been aware of the wrongfulness of his conduct before a criminal prosecution may occur. In Rehaif, ignorance of the law was actually something like a defense, though the Court decided the matter on slightly different, but closely related grounds.

Section 6105 provides a mechanism for individuals to petition a local county court to reinstate their right to possess a firearm. However, these provisions do not provide a mechanism for all convictions, which depend on the crime. Moreover, these procedures can be incomplete because 6105 provides authority for only the reinstatement of the right to bear arms. It does not provide the authority to strike the criminal record. Therefore, for certain crimes, an individual may have a state right to bear arms reinstated, but still have a federal prohibition pursuant to 18 U.S.C. 922(g).

In summary, the firearms law are complicated and the available means to remove a firearms disability range from a simple petition process all the way and up to including a full gubernatorial pardon with a subsequent petition for expungement. Any individual facing a legal matter involving firearms should do their research and contact an attorney who has demonstrated their knowledge of American firearms laws.

-CIVIL DISPUTES-

This category of legal matters includes disputes between individuals or entities or both. Perhaps the most common type of dispute is a breach of contract, whether verbal or written. But civil disputes can involve many other types of controversies. Any individual facing a civil dispute should do their research and find an attorney who demonstrates an understanding of the nature of the dispute and what legal mechanisms can be used to resolve the dispute in an effective and efficient manner.

-CRIMINAL DEFENSE-

In Pennsylvania, criminal defense involves defense to allegations arising under: Title 18, Pennsylvania Consolidated Statutes, known as the Criminal Code; Title 35 of the Pennsylvania Statutes, Section 780-102 and all that follows, known as the Pennsylvania Drug and Alcohol Abuse Control Act; Title 75 of the Pennsylvania Consolidated Statute, known as the Vehicle Code, but not to include defense for DUI or DUI-related offenses, as well as allegations arising under other parts of the law where the General Assembly has authorized the imposition of criminal penalties for violating other areas of special interest, such as Title 34, Pennsylvania Consolidated Statutes, known as the Game and Wildlife Code.

-Military & veterans law and issues-

Military law can involve defense at court-martial or anything else that may be encountered in the life of a servicemember. This highly unique environment can come with highly unique problems, related to separations, correcting official military records, applying for benefits from the Department of Veterans Affairs. It can also involve any legal matter which may come about because of military service.

The reality is that many veterans end up with problems after service which cannot be compensated or assisted by the Department of Veterans Affairs. The kinds of problems that Veterans come home with can lead to substance abuse issues or social problems which ripen into legal problems. At Malizia Law, we are fully aware of how these things many times end up playing out in real life, which is why we offer services to veterans on potentially any subject matter and at reduced rates or for free. We believe that taking care of the Nation’s veterans is a mission shared by government and society.

-DUI Defense-

In the past few decades, DUI defense has become recognized as a special type of criminal defense work. This type of defense usually involves heavy pre-trial litigation challenging reasons for the police stop which gave rise to the allegation. At trial, it can also involve technical arguments challenging the science behind the government’s allegations. When choosing a good attorney for DUI defense, an individual should do their research and chose an attorney who is adept at suppressing evidence in the pre-trial context and who demonstrates a knowledge of how to challenge scientific evidence.