The 4th Amendment and Excessive Force: A case that helps our clients!

The threshold to overcome by Plaintiffs in civil actions against Police Officers for "excessive force" is that, the force utilized on the date in question has to be excessive and not reasonable under the circumstances.

In all cases, the "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split–second judgments–in circumstances that are tense, uncertain, and rapidly revolving–about the amount of force that is necessary in a particular situation. The "reasonableness" inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.

This case bellow has been used by our law firm to time and time again to help our client's cases in federal court against police officers who used "excessive force." This is a 5th Circuit case.

Flores v. City of Palacios, 381 F.3d 391 (5th Cir. 2004)

 A police officer sought to detain a sixteen (16) year old woman because she was parked on the wrong side of the road and because, when he shined a spotlight on her car, several people fled from the vicinity. The woman did not respond to the officer’s repeated commands that she stop and instead drove away. The officer shot her car to prevent her escape. The officer’s shot entered the car’s bumper just above the tailpipe and ultimately lodged in the back of the muffler. The minor suffered no immediate physical injury, though her car was damaged.

When the woman stopped, the officer arrested her for evading detention. It was determined that the sixteen years old was in violation of a weeknight curfew for minors. Later investigation revealed alcohol in the area surrounding where the car was parked, though no evidence suggested she had been drinking. The woman sued the officer and the city pursuant to 42 U.S.C. § 1983 claiming excessive use of force.

On appeal, the court held that the district court properly denied summary judgment on the excessive force claim. The officer used physical force by shooting at her car, and the termination of her freedom of movement was accomplished by the shot to her car. The suspect’s perception of her detention is not considered when it is accomplished by means of physical force. It was clearly established that shooting toward a person is a use of physical force. It was also clearly established that a use of physical force that succeeds in stopping a fleeing suspect constitutes a seizure. It was clearly established that stopping a moving car by intentionally shooting it constitutes a seizure.

It was clearly established at the time that psychological injuries can be sufficient to state a 4th Amendment excessive force claim. The officer was on notice that using force carrying with it a substantial risk of causing death or serious bodily harm is "deadly force." The officer was also on notice that deadly force would only be justified by a reasonable belief that he or the public was in imminent danger. The officer reasonably should have known that his action caused a substantial risk of death or serious bodily harm. As such, the officer is not protected by qualified immunity as to the minor’s Fourth Amendment excessive force claim.

Police Officers should not be deterred from using force, if necessary, while effectuating an arrest, but only when–the force utilized–is "objectively reasonable" under the circumstances and not "excessive." It is the burden of the Plaintiff to prove and show that the Police Officer was not entitled to Qualified Immunity on the particular date.

If you, or someone you know has been injured by a police officer, and you believe that the force was excessive give us a call (210) 979-9777. The Baez Law Firm has been helping people with their police brutality cases and has been successful in bringing great results.

Is your auto accident covered by PIP Insurance?

Do you know whether your claims is covered by PIP or not? Have you been injured in a motor vehicle accident? Is your claim covered? There are numerous court factors considered in making the determination. Here is some of the research on that topic.

The statute's definition of "personal injury protection" is detailed, but it does not specify whether merely "an accident" will trigger coverage or whether a "motor vehicle accident" is required. The statute uses the term "the accident" six times, and the phrase "the date of accident" once, without expressing whether "the accident" contemplates, or does not contemplate, an automobile or motor vehicle accident.

Personal injury protection consists of provisions of a motor vehicle liability policy which provide for payment to the named insured in the motor vehicle liability policy and members of the insured's household, any authorized operator or passenger of the named insured's motor vehicle including a guest occupant, up to an amount of $2,500 for each such person for payment of all reasonable expenses arising from the accident and incurred within three years from the date thereof for necessary medical, surgical, Xray and dental services, including prosthetic devices, and necessary ambulance, hospital, professional nursing and funeral services, and in the case of an income producer, payment of benefits for loss of income as the result of the accident; and where the person injured in the accident was not an income or wage producer at the time of the accident, payments of benefits must be made in reimbursement of necessary and reasonable expenses incurred for essential services ordinarily performed by the injured person for care and maintenance of the family or family household.

The insurer providing loss of income benefits may require, as a condition of receiving such benefits, that the insured person furnish the insurer reasonable medical proof of his injury causing loss of income. The personal injury protection in this paragraph specified shall not exceed $2,500 for all benefits, in the aggregate, for each person.

The benefits required by this Act shall be payable without regard to the fault or nonfault of the named insured or the recipient in causing or contributing to the accident, and without regard to any collateral source of medical, hospital, or wage continuation benefits. An insurer paying benefits pursuant to this Act shall have no right of subrogation and no claim against any other person or insurer to recover any such benefits by reason of the alleged fault of such other person in causing or contributing to the accident.

All payments of benefits prescribed under this Act shall be made periodically as the claims therefor arise and within thirty (30) days after satisfactory proof thereof is received by the insurer subject to the following limitations:

The coverage described in this Act may prescribe a period of not less than six months after the date of accident within which the original proof of loss with respect to a claim for benefits must be presented to the insurer.

The decision in Le v. Farmers Texas County Mutual Insurance Co. considered whether this statute permitted the State Board of Insurance to promulgate a policy that required a "motor vehicle accident" and concluded that it did. That court reasoned that "[i]t is likely that the statewide cost for injuries which happen to occur in a car is higher than the cost of paying for injuries which result from a motor vehicle accident." It gave deference to the Board, concluding, "[w]e do not find the Board's construction repugnant to the statute."

The reasoning in Le v. Farmers Texas County Mutual Insurance Co. is sound. It is certainly reasonable and permissible for a policy providing personal injury protection to require the occurrence of a "motor vehicle accident" before coverage is applicable. An insurer paying personal injury protection coverage has no right of subrogation for the fault of another person in causing or contributing to "the accident." does not prohibit automobile policies issued in this state from requiring that the injuries be sustained as a result of a "motor vehicle accident."

However, the court found that a motor vehicle accident occurs when one or more vehicles are involved with another vehicle, an object, or a person, the vehicle is being used as a motor vehicle, and a causal connection exists between the vehicle's use and the injury-producing event, and
driver's injury resulted from a "motor vehicle accident" and entitled him to PIP benefits. Texas Farm Bureau Mut. Ins. Co. v. Sturrock, 146 S.W.3d 123 (Tex. 2004).

There is hope out there that your PIP may cover your claim. Give us a call if you have any questions. We are San Antonio Personal Injury Lawyers here to help you! We care about your legal needs.

How to petition for damages in a personal injury case

Our law firm has represented hundreds of cases for personal injury in Texas and the San Antonio area. Although each case is unique, the vast majority can be proven with the same efficiency, so long as some parameters are put in place.

This blog is intended to help those practitioners to have the tools needed to successfully litigate a personal injury case. Remember to always "humanize" your client.

As a direct and proximate result of the occurrence made the basis of this lawsuit, and Defendants' acts as described herein, Plaintiff was caused to suffer severe medical trauma damages more fully set forth below.

As a direct and proximate result of the occurrence made the basis of this lawsuit, Plaintiff, has incurred the following damages:

A. Reasonable medical care and expenses. These expenses were incurred by Plaintiffs, for the necessary care and treatment of the injuries resulting from the accident complained of herein and such charges are reasonable and were usual and customary charges for such services in Bexar County, Texas;

B. Reasonable and necessary medical care and expenses which will, in all reasonable probability, be incurred in the future;

C. Physical pain and suffering in the past;

D. Physical pain and suffering in the future; and

E. Mental anguish in the future;

F. Physical impairment which, in all reasonable probability, will be suffered in the future;

G. Cost of medical monitoring and prevention in the future.

By reason of the above, Plaintiff, has suffered losses and damages in a sum within the jurisdictional limits of the Court and for which this lawsuit is brought.

PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiff, respectfully prays that the Defendants be cited to appear and answer herein, and that upon a final hearing of the cause, judgment be entered for the Plaintiff against Defendants, jointly and severally, for damages in an amount within the jurisdictional limits of the Court; exemplary damages, as addressed to each Defendant per Section 41.006, Chapter 41, Texas Civil Practice and Remedies Code, , excluding interest, and as allowed by Sec. 41.008, Chapter 41, Texas Civil Practice and Remedies Code; together with pre-judgment interest (from the date of injury through the date of judgment) at the maximum rate allowed by law; post-judgment interest at the legal rate, costs of court; and such other and further relief to which the Plaintiff may be entitled at law or in equity.

We hope this has been helpful to practitioners. You can change, add or subtract on your petition as necessary, so that it fits your case when you are filing with court. Good luck, and happy litigating.

If you need a lawyer in san antonio for your personal injury case, give us a call (210) 979-9777 or visit our website: The Baez Law Firm, P.C.

Serious injuries, come and see us

Our San Antonio Lawyers have been helping people in Bexar County when they suffer serious injuries as a result of some one's negligence. Auto Accidents are the main culprit, but also injuries caused by doctors, police officers and others.

The Baez Law Firm helps victims of car accidents, even when the victims don't have health insurance. Our lawyers will negotiate your settlement, and if needed, will go to trial for you. Let us help you with your case, do not do it alone.

Our Personal Injury Lawyers help victims of medical malpractice in Texas. The law is very rigit, and our lawyers know how to litigate a case under the new law. Give us a call (210) 979-9777 to set up a free initial consultation.

We have helped victims of police brutality in Texas successfully. If you have been a victim of police brutality in Texas, you need a law firm that is able to handle the police "qualify immunity" issues that could end your case. Let us fight for your rights in court.

We represent the injured person all the way to trial

In Texas, health care liability claims, and in most personal injury claims, medical expenses related to the care and treatment of an injured person often constitute a significant portion of the damages that might be recovered at trial. Recoverable medical expenses were addressed in the 2003 tort reform legislation. The new statute, Section 41.0105 of the Texas Civil Practice and Remedies Code, changes the way in which courts and juries are to evaluate this element of damages.

Since the change of the legislation of paid v. incurred, insurance companies have been paying less money for personal injury claims. This is so because the new legislation allows them to only paid on what was "actually paid" on behalf of an insured not what was "incurred" during an accident.

But what does that mean? It means that if two people have the same accident, but one has insurance and the other one does not, the person without insurance will have a greater chance to recover more money than the person that does. What? So, in Texas, if you do the right thing and have insurance, you are been penalized? Exactly.

Our lawyers have been faced with this dilemma for our clients for a while now. We have opted to take those cases that leave our clients without funds in their pockets to trial. In that way, the juries have the potential to hear what was incurred on behalf of the client.

For decades, the collateral source rule would bar insurance companies from bringing forth what was actually paid, now because of this legislation, the insurance companies that are supposed to paid the injured person are the one's benefiting from this law. Until the law is changed, our San Antonio lawyers will be fighting in court for the rights of our injured clients.

Helping you with your injury

Many times, prospective clients indicate to us that they need help with their personal injury cases. Often times the problems is that people think that they can handle their own legal problems, simply because they have seen it on television. The fact of the matter is, they cannot.

Lawyers go through intensive training and develop skills with time that the lay person cannot posses by watching television. If you think about it, insurance companies have top lawyers representing them. With that in mind, you should too.

We received a call today that the person wanted help. They wanted us to answer one question because the statute of limitations was tomorrow, so they needed advise. They mentioned numerous legal terms that were irrelevant to what they wanted to accomplish. We told them they did not need advise, they needed a miracle.

Our San Antonio law firm handles injury cases against negligent people. We often fight insurance companies to negotiate settlements on behalf of our clients. In every situation, the insurance companies tries to negotiate a case in order to minimize their exposure. Since we know that, we are able to use that tool for our client's advantage.

We also handle cases against police departments that have deviated from their principle duty to serve and protect. Although police forces enjoy what is called "qualify immunity," many times they have exceeded their authority which violates people's constitutional rights, and that is when we come in.

Please, if you have been injured in San Antonio, you need a lawyer that can handle your case. Do not do it alone. We offer free initial consultations in order to evaluate a case and give our clients the best possible answer.

Give us a try, and you will see the difference that our law firm has to offer.

The deadly rollover accidents

Every year, Americans are being killed and gravely injured in rollover accidents because of the auto industry's greed, dishonesty and callous disregard for the safety of consumers. For the most part, the auto industry could reduce the rates of death, but refuse to do so because of cost.

In many cases, passengers in sport utility vehicles and fifteen passenger vans are three times more likely than car occupants to die in a rollover. Their risk of being paralyzed is also greatly increased. Yet, manufactures continue to produce the same unsafe vehicles day in and day out.

Although manufacturers know how to make safe vehicles, some auto executives have cut corners and lied about their actions in order to make more money and reduce cost to the behest of the public. People are being killed and maimed as a result.

Whether your case involves a multiple vehicle collision or a single car rollover, your family should retain a personal injury attorney as soon as possible if your loved one has been killed.

Sometimes insurance companies will attempt to settle wrongful death cases shortly after an accident for short money. DO NOT LET THIS HAPPEN TO YOU! Insurance adjusters and claims representatives are there to save their companies money. They have their legal team, and so should you. You need to have an experienced, honest and professional law firm working for you.

You Need The Baez Law Firm, P.C. Come see us, and you will know the difference from the moment that you walk through our doors. This is why we say, "we care about your legal needs!"

Have you had an accident with via bus?

Our law firm has represented individuals who have had accidents with via buses in the past. This include passengers and drivers alike. We have represented clients with fractures, fatal injuries and soft tissue injuries as well.

San Antonio news cast last night broadcast a new phenomena with the via buses. They indicated that, many handicapped people are having problems when they get off the buses. The article read like this "For the disabled and handicapped, VIA-Trans buses are the only way to live an independent life. But, there's a dangerous problem with some VIA-Trans buses that is putting them at risk."

If you are one of those disable or handicapped individuals, our attorneys are here to help you. We handle personal injury cases from beginning to end. If you have suffered an injury as a result of via buses, contact us.

We are a general practice law firm handling personal injury, business law, criminal law, family law and many other areas of law.

Boating accident or injury, come see us

Summer time has officially started in Texas. As such, many people will take out their summer gear, including their boats. However, not all of the individuals are aware of Texas law, regarding boating accidents.

In it pertinent parts, the law states: "Operators of vessels involved in any collision, accident or other casualty resulting in death or injury to any person or property damage exceeding $500 must file a full accident report within 30 days in accordance with Texas Parks and Wildlife Department regulations. Failure to file a report is punishable as a Parks and Wildlife Class C misdemeanor. Accident reports filed by the operator(s) are confidential and not admissible as evidence in court. Report forms may be obtained from Texas Parks and Wildlife officers, marine safety enforcement officers, or game wardens." This part covers the reporting requirements.

Moreover, the law states: "the operator of any vessel involved in a boating accident must stop and render needed assistance unless such action would endanger his crew, passengers or his own vessel. The operator must give his/her name, address, and vessel identification number in writing to any injured person and to the owner of any damaged property. Failure to render aid in an accident resulting in death or serious bodily injury is punishable as a Parks and Wildlife felony. Failure to render aid in an accident not resulting in death or serious bodily injury is punishable as a Parks and Wildlife Class A misdemeanor."

Finally, the law states:"It is unlawful to operate while intoxicated. (Intoxication is defined as the loss of mental or physical faculties, or blood alcohol content of 0.08 or greater). A first conviction is punishable by a fine not to exceed $2,000, confinement in jail not to exceed 180 days, or by both. A second conviction is punishable by a fine not to exceed $4,000, confinement in jail not to exceed one year, or by both. A third conviction is punishable by a fine not to exceed $10,000, imprisonment in jail for not more than 10 years or less than 2 years. Failure to submit a specimen to determine blood alcohol content may result in the suspension of the operator’s driver's license."

Texans need to be aware of the laws that governs boating and adhere to those laws, so that every one can have a more enjoyable summer.

If you have been injured as a result of some one's negligence, The Báez Law Firm, P.C. is here for you. We are a general practice law firm that cares about your legal needs. We handle personal injury, family law, business law, criminal law, bankruptcy, litigation, appeals and many more.

Why do we need experts witnesses

Texas Rules of Civil Procedure 192.3(e) creates three categories of experts witnesses. It is important to know the distinction between them in order to use them more efficiently.

The first category is the consulting expert. This is an expert who has been consulted, retained or specially employed by a party in anticipation of litigation or in preparation for trial.

The second category is the reviewed consulting expert. This is an expert whose opinions and mental impressions have been reviewed by the testifying expert.

Finally, the testifying expert. This is an expert that may be called to testify as an expert witness at trial.

The Texas Rules of Civil Procedure create an exception from discovery for the identity, mental impressions and opinions of consulting experts. On the other hand, the rules also designate information that is discoverable regarding reviewed consulting experts and testifying experts.

The utilization of experts in personal injury cases is crucial for the sauces of the case. Our law firm utilizes the most prestigious and knowledgeable experts available. When your personal injury, auto accident, medical malpractice, negligence, wrongful death case needs some experts, contact our law firm, we can help.

Car accidents in Texas

Our firm has helped thousands of individuals throughout Texas with their car accidents. As many of you may not know, insurance companies have many tactics to minimize each claim that is submitted by consumers. Even when you are supposed to be in good hands, it’s the total opposite, you are in for a fight. The reason is simple, they have to keep their stock holders happy, not you.

For example, when any one is hit from behind, and there is no broken bones, or contusions, or lacerations, or any major trauma, insurance companies have a way to evaluate the injuries. They are called soft tissue injuries. Now, the adjusters will start to minimize the injuries, the impact that the accident may have on people’s life and so for starters, they will not pay for the full value of the impact, since its only a small impact. Meanwhile, you have lost time from work, your car is not fixed and you are in pain.

Of course this happens when the individuals are not represented. On the other hand, when people come to our firm, their vehicles are repaired, they get seen by doctors and they get compensated for time lost from work. In other words, we maximize their recovery. This is one of the many reasons that people have to come to our law firm right after a car accident.

Another example is when the accident is more serious and there are broken bones, brain damage and or fatal injuries. Now the insurance companies will pay a little more, but they will still use all of their techniques to still minimize your claim. That is why is so important that you have efficient legal representation on your side. To properly care for your injuries, to fix your vehicle and to get you back to normal again, that is our commitment to you.

We always recommend that if you are involved in a car accident, or any type of personal injury, you should have legal representation. Insurance companies have their legal team working for them constantly, and so should you! Let us be your legal team because “We care about your legal needs.”

What not to do if you have a personal injury case

Misrepresenting Your Accident or Injuries.
Doctors document in their records how you describe the accident and your injuries. When your description varies from the way the accident happened to the way that injuries are described in the police report or other statements, the insurance company can use the descriptions to make you appear untruthful.

Hiding Past Accidents.
If you have been in other accidents, you need to say so, so that your lawyer can investigate and make a determination as to whether it is a valid problem in your case.

Hiding Previous Injuries.
If you have ever seen a doctor or other health care provider, then there is a record in existence that the insurance company will find, not that can find, but will find.

Not Having Accurate Income Information.
In many cases, a claimant will have lost income because of the accident. You will only be able to claim lost income if your income information is in good order.

Misrepresenting Your Activity Level.
If you claim that you cannot do certain things, but you are not been honest, you can jeopardize your claim. Personal injury lawsuits are serious business. Insurance companies are willing to spend a lot of money investigating claims.

If you have a personal injury case, please contact us, we can help. We are San Antonio Personal Injury Trial Lawyers and we are here to help you. That is why we say we care about your legal needs.

Have a personal injury claim?

Insurance companies are well known for trying to minimize your personal injury claims. As we see it,there are no auto, trucking or motorcycle accidents. There are wrecks and crashes resulting from bad judgments, careless mistakes and—in some case—intentional violations of the law. For every collision, there is a party who is at fault and a party who has been injured or killed.

On the other hand, a life-changing injury or a loved one's wrongful death can turn your world upside down in an instant. The insurance company is not concern that you and your family have a lot to deal with: pain, grief, confusion; and many details involving insurance, property damage and an uncertain future. That is why you should have a law firm able to handle them, so you can get back to your normal life.

The most common type of personal injury claims are road traffic accidents, accidents at work, tripping accidents, assault claims, accidents in the home, defective product accidents and holiday accidents. We can help you with all of them.

It can be tough to set a dollar amount on injuries you suffer in an accident. There are so many things to consider: doctor's bills, time lost from work, medical costs for ongoing injuries, pain and suffering, and so on. Insurance companies consider all of these factors when deciding how much to offer, and ultimately pay, for a personal injury claim.

The Baez Law Firm, P.C. is a general practice law firm that is ready to help you during difficult times. We handle accidents, criminal law, personal injury, family law, business law, consumer law, litigation, and appeals.

The ecomony and your personal injury claim

According to the experts, in the last 12 months, the face of the global economy has forever changed. Gone forever are investment banks, the secondary credit market, and an unregulated financial market.

In its place are government ownership of banks, while central banks around the world are propping up the banking system. In September, we came very close to total economic collapse, and we haven't recovered yet.

However, all data seem to point that the insurance companies are thriving during this difficult economic times. Nevertheless, to maximize their bottom line, which is to make money, insurance companies will play on the tough economic times to try to settle claims for pennies on the dollars, which would otherwise be worth something for the injured person.

You need a team of experts on your side, ready to face tough insurance companies that are ready to downgrade your claim. Do not let this economy affect the outcome of your case.

We are personal injury lawyers that handle auto accidents, personal injury, nursing home negligence,premises liability, slip and fall,car wreck,medical malpractice, wrongful death, and other areas of law.

Does a person needs to have an attorney to handle their personal injury case?

I read an article once that said: "No, but it is advisable." In law school, they teach you that only a fool has him/her self for a client, and the same goes for personal injury cases. Although insurance companies will often try to settle the claim without the involvement of lawyers, we recommend that you consult a lawyer before finalizing an agreement if you have any questions about whether you are getting a fair or proper settlement.

In the case of a serious injury, you should always consult a lawyer as soon as possible if you believe the injury was caused by some one's negligence. Most likely the insurance company for that other party will investigate immediately, but it helps keep the playing field level if you have a lawyer or a law firm to represent your interests and protect any important evidence.

If you have been injured by another person's negligence, please call us (210) 979-9777 or visit our website www.thebaezlawfirm.com for a free initial consultation.

Insurance Coverage Matters

For the most part, before an attorney gets started in filing a claim, the availability and the total amount of insurance coverage will be a major factor in deciding whether the claim can go forward. Typical insurance issues people with serious injuries face are: 1) no insurance coverage (Uninsured motorists), 2) insufficient insurance coverage (underinsured Driver), or 3) Denial of claims, Bad Faith/Tough/Difficult Insurance Companies.

Our law firm The Baez Law Firm, P.C. specializes in providing our clients with the best representation through Texas in relation to car accidents. Our firm will handle your claim from beginning to end. Now, a further explanation of policies are in order.

1) Uninsured Driver. In many cases the driver who is legally responsible for the accident has absolutely no insurance of any kind. In these circumstances it is usually extremely difficult for a person who is injured in the crash to get anything close to appropriate compensation. If the injuries are catastrophic or fatal an attorney will hire an investigator to look for other parties responsible- other insurance "umbrella" policies, related homeowners owners or family members, companies etc but they often come up empty and the the injured person has no way to recover any damages. Because there are so many uninsured drivers you should always buy "uninsured motorist coverage" under your own auto insurance policy.

2) Underinsured Driver. In the event of a very serious injury or death the majority of drivers will have inadequate insurance coverage, usually the minimum required by state law often only around $20,000. This often means that the worst drivers carry the least insurance because they cannot afford the high premiums resulting from their poor driving records. You should always purchase underinsured motorist coverage if it is offered, so in the event you are injured by a another driver without proper insurance you can collect against your own insurance company.

3) Insurance Denial of Claims and Bad Faith. In order to save money insurance companies will often stretch and use imaginative arguments to deny claims. Sometimes these claims denials or defenses are so beyond being reasonable that they amount to what is called legal bad faith- when an insurance company improper fights a legitimate claims or denies one. In most cases these matters are handled through litigation in the courts.

If you have been injured in an accident, contact our law firm for a free initial consultation with one of our attorneys.

Statute of Limitations in Personal Injury Cases

After being in a car accident an injured person should hire an attorney and begin the legal process as soon as possible. Waiting will usually weaken a potential claim through loss of evidence, loss of fresh memories and disorganized paperwork and medical records and the inability of the attorney to direct the process. Waiting too long may result in the case being completely barred by the statute of limitations of the state where the accident took place.