I’m happy to be at the Muscle Shoals Gun and Knife show this weekend talking to people about Firearms Trusts!
It had been my intention over the past few days to do some analysis of the various gun control amendments being brought before the US Senate, but time gotawayfrom me. All amendments introduced today failed- which is good news insofar as any new attempts at gun control is concerned, but it also meant the defeat of a few amendments that might have strengthened gun owner’s rights.
Gun Control Amendments
- Feinstein Assault Weapons Ban – SA 711 - Titled “The Assault Weapons Ban of 2013,” this amendment would have banned weapons that fell under the arbitrary definitions included in the bill, with a few exemptions. My reading of the transfer language did not exempt transfer by the estate of a deceased person. The text of the Feinstein Assault Weapons Ban can be found here.
- Leahy / Collins Amendment – SA 713 - This amendment would have purportedly made it easier for law enforcement to prosecute the trafficking of firearms. My brief review of the amendment indicates that it would have expanded the class of people for whom it is illegal to purchase a weapon. The text of the the Leahy Collins Amendment can be found here.
- Lautenberg / Blumenthal Amendment – SA 714 - This Amendment would have banned the sale or possession of so called “large capacity ammunition feeding device,” which was defined as magazines that hold more than 10 rounds. Violations would result in fines and up to five years in prison. The text of the amendment can be found here.
- Manchin / Toomey Amendment – SA 715 - This amendment purported to strengthen the NICS background check system and prohibit the creation of any federal registry. However, this amendment included some of the same language I criticized here. Violations of the new transfer language would result in fines and up to five years in prison. The text of the Manchin / Toomey Amendment can be found here.
Pro-Gun Amendments
- Burr Amendment – SA720 - This amendment would have required an adjudication before the Department of Veterans Affairs could place someone on the NICS blacklist. It is my opinion that anyone denied a fundamental constitutional right has a due process right to an adjudication prior to being prohibited from exercising it. The text of the Burr Amendment can be found here.
- Cornyn National Amendment – SA719 – “The Constitutional Concealed Carry Act of 2013″ would have required reciprocity in the recognition of concealed carry permits in any State in which concealed carry permits are issued. The text of the amendment can be found here.
More amendments will be debated today so I will try to bring those to you as time permits. A list of all current amendments to the bill is here. If these gun control efforts concern you, I am always happy to talk to you about your options.
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Benjamin Jarrell is the founder of The Law Office of Benjamin Jarrell and focuses his practice on helping individuals and families preserve what matters to them through estate planning. He practices in Huntsville, Madison, Decatur, Florence, Guntersville, Scottsboro, Birmingham and other cities throughout the State of Alabama.
*Apparently the published version reviewed in this article was edited before passage in the Senate. I will try to revise the analysis accordingly in the near future.*
There has been a lot made in the news and other media about gun control measures being passed at the State level. Less has been made of the pushback in some states, like Alabama, to strengthen and shore up gun rights.
Today the Alabama Senate passed SB 286, an Omnibus Firearms bill that strengthens gun rights in the Yellowhammer State. However, it will still need to make it through House before ending up on the Governors desk.
You can find the text of the bill here.
What Does the Omnibus Firearms Bill Do?
Alabama already recognizes very strong gun rights, but they are scattered throughout the Constitution, various statutes, case law, Attorney General opinions, and so forth. This omnibus bill consolidates certain statutory provisions and expands on them. The bill states its purpose as follows:
“The purpose of this section is to establish within the Legislature complete control over regulation and policy pertaining to firearms, ammunition, and firearm accessories in order to ensure that such regulation and policy is applied uniformly throughout this state to each person subject to the state’s jurisdiction and to ensure protection of the right to keep and bear arms recognized by the Constitutions of the State of Alabama and the United States. This section is to be liberally construed to accomplish its purpose.”
That should help clear up any ambiguities.
Let’s take a look.
Carrying, concealed or otherwise
Under current Alabama law, possession of a pistol inside a vehicle is considered “concealment” and requires a pistol permit. This bill would eliminate the presumption that a pistol is concealed merely because it is inside a vehicle. The NRA is calling this a “car carry permit” that is free of charge and good for life. However, I think that may be exaggerating the scope of this new language.
The bill is amended to add two items: first, carrying a holstered firearm does not constitute disorderly conduct, and second, there is no presumption that the pistol is concealed merely because it is inside of a vehicle. I read that to mean that the State bears the burden of proof in proving that the pistol was concealed and that if the State wanted to prosecute someone, they would merely have to prove that the individual was in fact concealing the firearm (for instance, inside of a jacket) without having a pistol license. If this becomes law, it remains to be seen how this will be enforced.
The first item seems to make explicit in statute what was previously buried in the Alabama Constitution and case-law: that openly carrying a firearm is not in and of itself unlawful. This is bolstered by language in the concealed-carry section, stating that the statutes should not be construed to limit a person’s right to openly carry.
Issuance of Pistol Permits
Under current Alabama law, the Sherriff’s office has discretion in awarding concealed carry permits. This new language would amend “may issue,” which gives the Sherriff an option, to “shall issue,” which will not- and it will require the Sherriff to either issue or deny the pistol permit within thirty days. A denial must be made in writing and based on documented, specific actions, some of which must have occurred within the past two years, that the individual is likely to endanger themselves or others. The rationale for revoking a license mirrors the criteria for issuance of a license. If an individual is denied, they have the right to appeal the denial to an appeals panel made up of the probate judge, the district attorney, and the president of the local bar association. Another interesting provision is that the individual applying for the permit gets to determine whether their license expires in 1 or 5 years, or possibly some increment in-between. Importantly, the statute now affirmatively states that a licensed individual can carry concealed throughout the state, unless prohibited by law. This clears up some confusion about when and where it is appropriate to carry.
For concealed-carry proponents, this is a big win. It remains to be seen how the Sherriff’s offices will respond. At least in Madison County, I know the backlog of applications can often exceed 30 days. Perhaps spacing out renewals will ease up their backlog. Removing the Sherriff’s discretion might also speed up the process, since they are required to issue the permit, unless they have a reason, based on documented evidence. I applaud including the local bar president in the appeals panel as a means of advocating for the individual and protecting civil rights. However, the American Bar Association recently tainted their reputation respecting 2nd Amendment civil rights and I hope that local bars will do better.
A few other items relating to pistol permits: the bill sets up a mechanism for issuance of a permit to non-citizens in some circumstances, although illegal immigrants are specifically excluded. A NICS check is now required for the issuance of a permit, although my understanding was that the Sherriff’s office already conducted a NICS check. The Attorney General is authorized to reciprocate pistol permits (as they already do).
Relating to Businesses and Employers
The bill addresses a conflict that has arisen between business owners who want to prohibit the presence of weapons on their property, and the rights of gun owners who want to be able to leave their weapons in their cars during the workday. This conflict pitted property rights of business owners against the rights of workers to legally carry a firearm for self-defense, hunting, or some other legal purpose. They argued that if they were not allowed to safely store their firearms, they could not effectively carry for self-defense at all.
This bill resolves this conflict strongly in favor of employees. Business owners/employers may not now prohibit employees from transporting or storing firearms in their private motor vehicles, so long as the firearm is out of sight, in the trunk, or in a secure container. An employer may not inquire whether an employee is transporting or storing a firearm, may not terminate an employee for keeping a firearm in their car, and it provides for some serious remedies for employees who are wrongfully terminated for doing so. That statute provides for full recovery by wrongfully terminated employees, including reinstatement of their position, full fringe benefits and seniority rights, compensation for lost wages, benefits, or other remuneration, and any legal costs incurred.
The bill allows Alabama businesses to prohibit employees from carrying weapons while on the job. They may also prohibit people licensed to carry concealed from coming on the premises, so long as a notice that concealed weapons are disallowed is posted prominently at every entrance. If someone disregards the notice, the business owner can request that they leave, and if they refuse, then they can be arrested for trespassing.
Business owners who prohibit individuals from safely carrying or storing a firearm in their vehicle can become civilly liable for an injunction, and damages arising from damage, injury, or death that occurs because of the prohibition. I interpret this to mean that if you are prohibited from carrying on the premises and are unable to defend yourself, the business becomes liable.
The Alabama business community fought these provisions, and although they largely lost, they scored a major concession that seems designed to make tort lawyers cry: almost absolute civil immunity for criminal acts that occur on their premises. The bill states that business owners have no obligation to guard against criminal acts of a third party unless they know that a criminal act is occurring or is about to occur, and that is poses an imminent probability of harm to someone. So if someone shoots you at a restaurant (or a movie theater) you wouldn’t be able to seek recourse from the business or owner. Although this is clearly a concession to the business community, I can’t help but wonder if it will encourage concealed carry if this becomes widely known.
Carrying on State Premises
As a lawyer who goes in and out of the Courthouse and other State and city buildings with some frequency, this next provision makes me happy. The bill requires that if the State, or any political subdivision thereof prohibits the carrying of a weapon onto their premises, they must provide a means for an individual to check their weapon with a designated person at a designated entrance to the facility, who must store it in a locked location. Failure of the State to do so opens them up to a civil injunction, and they will become liable for the costs and attorney’s fees incurred in bringing an action. However, this would obviously not apply to Federal premises.
Demonstrations
The bill repeals the statute that prohibits people from carrying a weapon within 1,000 feet of a public demonstration is repealed outright. This always struck me as a stupid provision, and I think Alabama lawmakers probably recognized that any law that criminalizes the lawful exercise of a fundamental constitutional right is unconstitutional. It was only a matter of time before this went away.
Final Thoughts
This bill is great news for proponents of broad gun rights in the Yellowhammer State. However, it still has to be taken up in the House, and signed by the Governor. If you want to see these provisions become law, please contact your local representatives and the Governors office and let them know you support SB 286, the Omnibus Firearms Bill.
Find your State legislators and their contact information here. Although you should probably wait until the bill makes it out of the House, Governor Bentley’s contact information can be found here.
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Benjamin Jarrell is the founder of The Law Office of Benjamin Jarrell and focuses his practice on helping individuals and families preserve what matters to them through estate planning. He practices in Huntsville, Madison, Decatur, Florence, Guntersville, Scottsboro, Birmingham and other cities throughout the State of Alabama.
There has been a lot made in the news and other media about gun control measures being passed at the State level. Less has been made of the pushback in some states, like Alabama, to strengthen and shore up gun rights.
Today the Alabama Senate passed SB 286, an Omnibus Firearms bill that strengthens gun rights in the Yellowhammer State. However, it will still need to make it through House before ending up on the Governors desk.
You can find the text of the bill here.
What Does the Omnibus Firearms Bill Do?
Alabama already recognizes very strong gun rights, but they are scattered throughout the Constitution, various statutes, case law, Attorney General opinions, and so forth. This omnibus bill consolidates certain statutory provisions and expands on them. The bill states its purpose as follows:
“The purpose of this section is to establish within the Legislature complete control over regulation and policy pertaining to firearms, ammunition, and firearm accessories in order to ensure that such regulation and policy is applied uniformly throughout this state to each person subject to the state’s jurisdiction and to ensure protection of the right to keep and bear arms recognized by the Constitutions of the State of Alabama and the United States. This section is to be liberally construed to accomplish its purpose.”
That should help clear up any ambiguities.
Let’s take a look.
Carrying, concealed or otherwise
Under current Alabama law, possession of a pistol inside a vehicle is considered “concealment” and requires a pistol permit. This bill would eliminate the presumption that a pistol is concealed merely because it is inside a vehicle. The NRA is calling this a “car carry permit” that is free of charge and good for life. However, I think that may be exaggerating the scope of this new language.
The bill is amended to add two items: first, carrying a holstered firearm does not constitute disorderly conduct, and second, there is no presumption that the pistol is concealed merely because it is inside of a vehicle. I read that to mean that the State bears the burden of proof in proving that the pistol was concealed and that if the State wanted to prosecute someone, they would merely have to prove that the individual was in fact concealing the firearm (for instance, inside of a jacket) without having a pistol license. If this becomes law, it remains to be seen how this will be enforced.
The first item seems to make explicit in statute what was previously buried in the Alabama Constitution and case-law: that openly carrying a firearm is not in and of itself unlawful. This is bolstered by language in the concealed-carry section, stating that the statutes should not be construed to limit a person’s right to openly carry.
Issuance of Pistol Permits
Under current Alabama law, the Sherriff’s office has discretion in awarding concealed carry permits. This new language would amend “may issue,” which gives the Sherriff an option, to “shall issue,” which will not- and it will require the Sherriff to either issue or deny the pistol permit within thirty days. A denial must be made in writing and based on documented, specific actions, some of which must have occurred within the past two years, that the individual is likely to endanger themselves or others. The rationale for revoking a license mirrors the criteria for issuance of a license. If an individual is denied, they have the right to appeal the denial to an appeals panel made up of the probate judge, the district attorney, and the president of the local bar association. Another interesting provision is that the individual applying for the permit gets to determine whether their license expires in 1 or 5 years, or possibly some increment in-between. Importantly, the statute now affirmatively states that a licensed individual can carry concealed throughout the state, unless prohibited by law. This clears up some confusion about when and where it is appropriate to carry.
For concealed-carry proponents, this is a big win. It remains to be seen how the Sherriff’s offices will respond. At least in Madison County, I know the backlog of applications can often exceed 30 days. Perhaps spacing out renewals will ease up their backlog. Removing the Sherriff’s discretion might also speed up the process, since they are required to issue the permit, unless they have a reason, based on documented evidence. I applaud including the local bar president in the appeals panel as a means of advocating for the individual and protecting civil rights. However, the American Bar Association recently tainted their reputation respecting 2nd Amendment civil rights and I hope that local bars will do better.
A few other items relating to pistol permits: the bill sets up a mechanism for issuance of a permit to non-citizens in some circumstances, although illegal immigrants are specifically excluded. A NICS check is now required for the issuance of a permit, although my understanding was that the Sherriff’s office already conducted a NICS check. The Attorney General is authorized to reciprocate pistol permits (as they already do).
Relating to Businesses and Employers
The bill addresses a conflict that has arisen between business owners who want to prohibit the presence of weapons on their property, and the rights of gun owners who want to be able to leave their weapons in their cars during the workday. This conflict pitted property rights of business owners against the rights of workers to legally carry a firearm for self-defense, hunting, or some other legal purpose. They argued that if they were not allowed to safely store their firearms, they could not effectively carry for self-defense at all.
This bill resolves this conflict strongly in favor of employees. Business owners/employers may not now prohibit employees from transporting or storing firearms in their private motor vehicles, so long as the firearm is out of sight, in the trunk, or in a secure container. An employer may not inquire whether an employee is transporting or storing a firearm, may not terminate an employee for keeping a firearm in their car, and it provides for some serious remedies for employees who are wrongfully terminated for doing so. That statute provides for full recovery by wrongfully terminated employees, including reinstatement of their position, full fringe benefits and seniority rights, compensation for lost wages, benefits, or other remuneration, and any legal costs incurred.
The bill allows Alabama businesses to prohibit employees from carrying weapons while on the job. They may also prohibit people licensed to carry concealed from coming on the premises, so long as a notice that concealed weapons are disallowed is posted prominently at every entrance. If someone disregards the notice, the business owner can request that they leave, and if they refuse, then they can be arrested for trespassing.
Business owners who prohibit individuals from safely carrying or storing a firearm in their vehicle can become civilly liable for an injunction, and damages arising from damage, injury, or death that occurs because of the prohibition. I interpret this to mean that if you are prohibited from carrying on the premises and are unable to defend yourself, the business becomes liable.
The Alabama business community fought these provisions, and although they largely lost, they scored a major concession that seems designed to make tort lawyers cry: almost absolute civil immunity for criminal acts that occur on their premises. The bill states that business owners have no obligation to guard against criminal acts of a third party unless they know that a criminal act is occurring or is about to occur, and that is poses an imminent probability of harm to someone. So if someone shoots you at a restaurant (or a movie theater) you wouldn’t be able to seek recourse from the business or owner. Although this is clearly a concession to the business community, I can’t help but wonder if it will encourage concealed carry if this becomes widely known.
Carrying on State Premises
As a lawyer who goes in and out of the Courthouse and other State and city buildings with some frequency, this next provision makes me happy. The bill requires that if the State, or any political subdivision thereof prohibits the carrying of a weapon onto their premises, they must provide a means for an individual to check their weapon with a designated person at a designated entrance to the facility, who must store it in a locked location. Failure of the State to do so opens them up to a civil injunction, and they will become liable for the costs and attorney’s fees incurred in bringing an action. However, this would obviously not apply to Federal premises.
Demonstrations
The bill repeals the statute that prohibits people from carrying a weapon within 1,000 feet of a public demonstration is repealed outright. This always struck me as a stupid provision, and I think Alabama lawmakers probably recognized that any law that criminalizes the lawful exercise of a fundamental constitutional right is unconstitutional. It was only a matter of time before this went away.
Final Thoughts
This bill is great news for proponents of broad gun rights in the Yellowhammer State. However, it still has to be taken up in the House, and signed by the Governor. If you want to see these provisions become law, please contact your local representatives and the Governors office and let them know you support SB 286, the Omnibus Firearms Bill.
Find your State legislators and their contact information here. Although you should probably wait until the bill makes it out of the House, Governor Bentley’s contact information can be found here.
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Benjamin Jarrell is the founder of The Law Office of Benjamin Jarrell and focuses his practice on helping individuals and families preserve what matters to them through estate planning. He practices in Huntsville, Madison, Decatur, Florence, Guntersville, Scottsboro, Birmingham and other cities throughout the State of Alabama.
Copyright is a form of protection provided by the laws of the United States to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works.
Clients often inquire about the steps needed to secure copyrights. Under the Berne Convention, copyrights are established as soon as they are “affixed in a tangible medium” and the client does not need to take any affirmative steps to register or apply for the copyright.
However, as copyrights often constitute valuable intellectual property, it is important that clients take other necessary steps to protect their copyrights. Copyright law provides the author with the exclusive rights to exploit their works, and it is important that individuals or businesses with such intellectual property take the necessary steps to protect it. This can be accomplished through the drafting of comprehensive transfer or sale agreements, license agreements, assignments, nondisclosure agreements, and by making sure that contracts with other parties make reference to copyright ownership when applicable.
It is also important that copyright owners realize how the value of their ownership may affect their estate, and plan accordingly. Depending on the value of the copyright, there could be significant tax consequences for the estate and any heirs or beneficiaries. Comprehensive estate planning may be necessary to protect the enduring value of your creative endeavors. If you have questions or concerns about how to protect your valuable intellectual property, contact us today!
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Benjamin Jarrell is the founder of The Law Office of Benjamin Jarrell and focuses his practice on helping individuals and families preserve what matters to them through estate planning. He practices in Huntsville, Madison,Decatur, Florence, Guntersville, Scottsboro, Birmingham and other cities throughout the State of Alabama.
*** NOTE: Since I wrote this piece, the legislation has been consolidated with some other proposals and has a new bill number. The language referred to in this piece is still included, and the analysis is still on point, but I will try to correct the references shortly.***
In the last week, Senator Feinstein’s assault-weapon and magazine bans have been stripped from the United States Senate’s upcoming gun-control proposal, which is good news in and of itself. Gun rights activists are generally pleased, and what remains is primarily a background check proposal. Gun control advocates herald this universal background checks as a common sense way to keep guns out of the hands of felons- but what the legislation actually accomplishes is extremely bad news for anyone who values their Second Amendment rights. Surprisingly, I haven’t seen any media coverage that actually analyzes the text of this proposed law. It’s not good.
The text of the bill can be found here: S. 374
The legislation will Amend 18 USC 44, and is subdivided into two parts. Title I-Ensuring That All Individuals Who Should Be Prohibited From Buying A Gun Are Listed In The National Instant Criminal Background Check System deals with strengthening the NICS background check system by requiring that certain data be added to the registry, and imposing penalties on States that don’t comply by withholding certain funding. The really objectionable portions of the law are found in Title II-Requiring a Background Check For Every Firearm Sale.
Title II – Requiring a Background Check For Every Firearm Sale
Title II makes it unlawful to sell, gift, loan, return from pawn or consignment, or otherwise dispose of a firearm to any person without first passing it through a licensed firearms 
dealer, who will then proceed to run a background check (and probably collect a fee.) It remains unclear why a dealer who is in the business of selling firearms would agree to get involved in someone else’s sale. The bill requires the setting of a maximum fee that a licensed dealer may charge for this service, which means that if it isn’t worth the dealer’s time (not to mention their liability) to get involved in your private sale, you will be unable to privately sell your firearms. The bill makes certain exceptions, but the exceptions only serve to trap the unwary in a labyrinth of newly created federal crimes.
Family Exemptions – Good News, Or Is It?
The bill excepts bona fide gifts, transfers from the estate of a deceased person, and temporary transfers that take place on private property and last less than 7 days. Unwittingly violate one of these background check provisions, and you are looking at fines and up to one (1) year in Federal prison.
Bona fide gifts, but not other types of transfers, between spouses, parents and children, siblings, and grandparents and grandchildren are exempted from the background check requirement. Although the bill seems to carve out exemptions for intra-family transfers, it really only exempts gifts between a small number of familial relationships and makes every other intra-family transfer a criminal violation. If you want to sell your brother or your niece your hunting shotgun, you will have to run a background check on them first.
The bill also seems to make temporary transfers exempt, but the wording of the bill actually turns commonplace behavior into a criminal violation. In order to be exempt, the temporary transfer has to take place on your property and last less than seven days. Because the intra-family exemption only applies to bona fide gifts, if you went out of town on business or vacation for more than seven days and left a firearm in your home (even if locked up) with any other person, including your spouse, parent, child, grandparent, grandchild, aunt, uncle, niece, nephew, unmarried domestic partner, gay partner, live in boy friend or girlfriend, roommate, house-sitter, pet-sitter, or truly any other relationship you can imagine, you will have been deemed to have ‘transferred’ the firearm to that person and be in violation of the law. Leaving a firearm in a house with multiple residents could presumably result in multiple violations. This section is either incredibly poorly drafted, or was intentionally drafted so as to criminalize ordinary gun ownership. As a result of this provision, no person who owned a firearm and resided with another person could leave their home for more than seven days without violating this section of the law.
But What About Hunting and Sports?
Good news sportsmen! You also get an exemption.
If you want to go shooting with your buddy and loan him your rifle, that transfer is exempt… so long as you go shooting at a range that has been incorporated for the express purpose of nature conservation or firearms proficiency. If you decide to go shooting on your own private, unincorporated property and loan them your weapon, you just broke the law.
What about shooting competitions? No problem… so long as the competition is organized or approved by either a state agency or nonprofit organization, you should both be exempt, but only for so long as you remain on the premises of the competition. If you caravan home with the rifle in your friend’s car, hope you don’t get pulled over.
Surely hunters get a pass, right? Hunters do get an exemption but only during the hunting season, and only if your friend has all of the right State paperwork. Violation of State hunting laws transforms this into a federal crime. Just hope he did not unwittingly let his hunting permit expire.
Lost Guns
The bill also makes it a crime to fail to report a lost or stolen gun within 24 hours to both your local authorities AND the Attorney General of the United State. So if you go on a hunting trip in the wilderness for a week, and your canoe capsizes on the third day, if you can’t make it back to civilization to get in touch with the police and Eric Holder, you just committed a Federal felony that will land you up to five (5) years in a Federal Penitentiary, plus fines. No word yet on whether Attorney General Holder works weekends, so let’s hope you didn’t lose your gun on a Friday evening.
So What Does All Of This Mean For Me?
If this legislation becomes law, it will mean that privately selling your guns will be a much more complex, and a much riskier activity. Even simply owning guns may render you a criminal, if you travel a lot and leave your firearms at home with another person. Going shooting with your friends also will become a much more complicated affair. Ultimately, this legislation will burden gun owners in exchange for very few, questionable benefits.
Gun Trusts As a Solution?
What can you do? A Gun Trust may be one possible solution. One option for owners of items regulated by the National Firearms Act like suppressors, fully automatic firearms, and short barreled rifles and shotguns has been to create a Firearms Trust or Gun Trust. These trusts provide some benefits in the application process for NFA items, but there are also significant benefits in how owners of NFA items are able to manage their weapons- trusts make it possible to loan regulated firearms to family and friends without running afoul of the NFA and committing an “accidental felony.” This background check legislation creates a number of new “accidental felonies” for all gun owners. If this proposal becomes law, gun owners may look to Gun Trusts to provide them with ease and security in how they manage their non-regulated weapons. A gun trust might allow you to name beneficiaries of your trust who are entitled to use the trust assets (the firearms) without running afoul of these transfer rules. Of course, it is hard to predict exactly what options will be available until something becomes law.
If this legislation concerns you, please contact your Senators and Congressmen and tell them what you think about this proposal. And as always, I would be happy to talk to you about protecting your firearms (and the rest of your estate) through trust-based estate planning.
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Benjamin Jarrell is the founder of The Law Office of Benjamin Jarrell and focuses his practice on helping individuals and families preserve what matters to them through estate planning. He practices in Huntsville, Madison, Decatur, Florence, Guntersville, Scottsboro, Birmingham and other cities throughout the State of Alabama.
A trademark is a brand name. A trademark or service mark includes any word, name, symbol, device, or anycombination, used or intended to be used to identify and distinguish the goods/services of one seller or provider from those of others, and to indicate the source of the goods/services. Although federal registration of a mark is not mandatory, it has several advantages, including notice to the public of the registrant’s claim of ownership of the mark, legal presumption of ownership nationwide, and exclusive right to use the mark on or in connection with the goods/services listed in the registration.
There are three different types of trademarks that can be registered with the USPTO:
- Standard Character Format consists of the plain text spelling of the trademark, such as “NBC” in reference to the National Broadcast Corporation
- Stylized/Design Format consists of the design, graphical, or logo elements of the trademark, such as the NBC Peacock logo.
- Sound Mark consists of a sound that is commonly associate with a brand, such as the NBC chimes.
When a client requests a trademark, we will initially do a search to ensure that the mark is available for registration. Assuming the trademark is available for registration, we can file an application to register the mark. The application is reviewed by an examining attorney at USPTO over a period of anywhere from three to six months to ensure that it complies with all requirements in order to be entitled to registration. If the application runs afoul of any requirement, the examining attorney will request that our firm address certain issues or refusals prior to registration of the mark. After the examination of the mark has concluded with no issues to be addressed or if we have responded adequately to an examining attorney’s concerns, the application will be published for opposition, and provided that no third-party opposes the registration of the mark during the opposition period or the opposition is ultimately decided in the applicant’s favor the mark will be registered.
The trademark application process can be long and confusing. It is important that you have an experienced attorney guide you through the process and who can respond appropriately to any issues that may arise.
If you would like to discuss trademark registration or other intellectual property matters, please contact our office today!
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Benjamin Jarrell is the founder of The Law Office of Benjamin Jarrell and focuses his practice on helping individuals and families preserve what matters to them through estate planning. He practices in Huntsville, Madison, Decatur, Florence, Guntersville, Scottsboro, Birmingham and other cities throughout the State of Alabama.
This is an interesting development from the Supreme Court of Kansas in favor of a same-sex couple’s right to a 2nd parent adoption.
“Denying a child conceived by artificial insemination the opportunity to have two
parents through a coparenting agreement does not comport with the constitutional mandate to provide substantive legal equality for all children regardless of the marital status of their parents.Under the specific facts of this case, the coparenting agreement between the
biological mother and her same-sex partner contained no element of immorality or illegality and did not violate public policy, but rather the contract was for the advantage and welfare of the children, rendering it enforceable by the district court to the extent it is in the best interests of the children.”
The state of the law on 2nd-parent adoption in Alabama is vague, but it isn’t out of the question, despite an unfavorable ruling by the Alabama Court of Civil Appeals in 2012. The crucial issue for parents (and judges) in Alabama is whether adoption by the second parent in the household is in the best interests of the child. This is the standard by which child custody and other issues are decided, and should be no different in these kinds of cases. Contact us for more information about this developing area of the law.
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Benjamin Jarrell is the founder of The Law Office of Benjamin Jarrell and focuses his practice on helping individuals and families preserve what matters to them through estate planning. He practices in Huntsville, Madison, Decatur, Florence, Guntersville, Scottsboro, Birmingham and other cities throughout the State of Alabama.
The Alabama Legislature recently passed a bill which has proven to be quite controversial: The Alabama Accountability Act. The bill was initially designed to give school administrators more flexibility in how they manage their schools, and to give the parents of children in “failing” schools the opportunity to remove their child to a better performing school.
However, once the bill was in conference committee, additional language was added that gives refundable tax credits of up to $3500 to parents who avail themselves of some of these additional provisions, as well as allowing donation-funded scholarships for certain students. The Alabama Education Association (“AEA”) stepped in and sued to stop implementation of the bill. A Montgomery judge issued an injunction, which was later overturned by the Alabama Supreme Court. On Thursday, March 14th, Republican Governor Robert Bentley signed the Act into law. The Act is in effect as of it’s signing by the Governor, so it is effective NOW.
Controversy aside, the tax credit and scholarship provisions of the Accountability Act present some interesting opportunities for parents in Huntsville and the rest of the state. I will attempt to clarify some of the provisions that are beneficial to Alabama parents.
The Income Tax Credit
The Act calls for a refundable tax credit in the following amount:
“The income tax credit shall be an amount equal to 80 percent of the average annual state cost of attendance for a public K-12 student during the applicable tax year or the actual cost of attending a nonfailing public school or nonpublic school, whichever is less.”
This is interpreted to mean that the amount of the credit can be up to $3500, or less depending on the actual costs involved.
Although I have simplified things a bit, the Act allows for parents to claim the refundable tax credit if their child is assigned to or enrolled in a failing school. The tax credit is available for all grade levels of the failing school to which the student was assigned. In other words, parents of a student assigned to a failing K-5 school would be eligible for the tax credit until he finished 5th grade, but if the 6th grade school was not failing, eligibility for the tax credit would cease. The school system is required to notify parents that the school to which their child is assigned is designated as failing, give them the option of transferring to a non-failing school, and to provide transportation to the school of their choice within the same local school system.
Scholarship Organizations
The Act defines scholarship granting organizations as follows:
“An organization that provides or is approved to provide educational scholarships to students attending qualifying schools of their parents’ choice.”
The Act provides for tax credits to individuals and married couples who contribute to a qualified scholarship granting organization, in an amount up to 50% of the total tax liability or $7,500, whichever is less. Corporate taxpayers are also eligible for a tax credit for donation to scholarship granting organizations in an amount of up to 50% of their tax liability. However, the statewide cap for these tax credits is $25 million dollars, and it is currently unclear exactly how these tax credits will be allocated.
In order to qualify for the scholarship tax credit, the scholarship granting organization must meet the following criteria, and please note that this is not an exhaustive list:
- Notify the Alabama Department of Revenue of their intent to grant scholarships,
- Be granted 501(c)(3) status by the IRS,
- Distribute scholarship monies to the schools in which scholarship students are enrolled;
- Ensure that at least 95% of their donations are distributed as scholarships, devote a portion of their scholarship grants to low income-eligible students in an amount equal to the proportion of income-eligible students in the county where it grants scholarships;
- Ensure that 75% of first time recipients are not private school students
- Ensure portability of the scholarship; in other words, the money follows the student and isn’t tied to any particular school;
- Avoid conflicts of interest;
- Scholarship granting organizations may not discriminate;
- Ensure that only students assigned to or attending failing schools are eligible for scholarships.
What Does All of This Mean For Parents?
First of all, if your child is enrolled in or assigned to a failing school, you are eligible for the refundable tax credit of up to $3,500. What this means is that the credit will be refunded to you after you filed your taxes annually, so if you undertake costs in sending your child to a non-failing school or to a private school, you will have to bear those costs until you file for and receive the refund.
The more interesting consequences of the Act are found in the language related to scholarship granting organizations. It is conceivable that interested parties could put together an organization and deduct their contributions to it, even if the recipients of the scholarships are related or known to them. Conceivably families and friends could work together to establish a scholarship organization to benefit their own unique communities. It also opens up opportunities for businesses in Alabama, both small and large alike, to make donations to qualifying organizations as a benefit to their eligible employees.
Although this bill was mired in controversy, it is now the law of the land in Alabama. Concerned parents who wish to avail themselves of the opportunities presented in the Act should contact our office immediately to see how we can help.
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Benjamin Jarrell is the founder of The Law Office of Benjamin Jarrell and focuses his practice on helping individuals and families preserve what matters to them through estate planning. He practices in Huntsville, Madison, Decatur, Florence, Guntersville, Scottsboro, Birmingham and other cities throughout the State of Alabama.
We are experienced in advising new business startups about how to properly establish themselves. One important and often overlooked aspect of starting a new business is determining what type of legal entity is appropriate. Many entrepreneurs assume that one type of entity is superior to another, without taking the time to think through how their choice of entity will affect their day to day operations. We will explain your options to you and help you select the appropriate legal structure for your company. We will also help you navigate the often confusing process of obtaining your local business and tax licenses.
Limited Liability Companies (LLC)
A limited liability company is authorized by the Alabama Limited Liability Act, and is a popular choice of entity for small business because it offers a great deal of flexibility in how the business can be managed, favorable tax status, and a statutory limit on liability for the proprietors.
Single member LLC’s are allowed in Alabama, which means that a sole proprietorship isn’t the only choice for a single-member company. Alabama law authorizes the LLC to adopt of an operating agreement that governs how the business is managed. The LLC can be managed similarly to a traditional corporation, or the operating agreement can authorize more innovative or creative internal structures. The IRS typically regards an LLC as either a disregarded entity or as a partnership, depending on the number of members. However, an LLC can also elect to be taxed as a Subchapter-S or Subchapter-C corporation.
One of the foremost reasons business owners elect to form an LLC is because the Act limits the liabilities of members. This means that the members of an LLC won’t typically be personally responsible for the debts or acts of the LLC. Subject to a few exceptions, the Act states as follows:
“…a member of a limited liability company is not liable under a judgment, decree, or order of a court, or in any other manner, for a debt, obligation, or liability of the limited liability company, whether arising in contract, tort, or otherwise, or for the acts or omissions of any other member, manager, agent, or employee of the limited liability company.”
However, this isn’t an all encompassing guarantee of limited liability, so it is important to consult a knowledgeable attorney about how you can maintain your LLC’s limited liability.
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Benjamin Jarrell is the founder of The Law Office of Benjamin Jarrell and focuses his practice on helping individuals and families preserve what matters to them through estate planning. He practices in Huntsville, Madison, Decatur, Florence, Guntersville, Scottsboro, Birmingham and other cities throughout the State of Alabama.
