Earlier this week, a twenty-five year old Math teacher at Rocky Mount Preparatory School was accused of having sexual contact with three underage students (http://bit.ly/2tjMeLR). Students and teachers were interviewed before a warrant for Erin McAuliffe was issued. McAuliffe was later arrested. McAuliffe was fired on May 4th and had her first appearance in court yesterday to face the allegations brought against her.
When serious misconduct in connection with a school, and teachers or students suddenly transition to suspects and witnesses, the question of what rights those individuals have have often arises and can be critical.
The 4th Amendment of the United States Constitution protects against unreasonable search and seizure. This has been interpreted by the courts to protect against unreasonable search and seizure by government officials such as police officers, FBI agents, and other governmental agencies. However, the 4th Amendment does not protect against a private citizen’s unreasonable search and seizure of other private citizens.
So is a teacher a State actor or private citizen? Teachers are considered State actors under the law. Public school officials are representatives of the State according to New Jersey v. T.L.O. However, unlike police or other law government actors, teachers and school officials do not need a warrant to search a student’s property. Getting a warrant can take time, which has been deemed by the courts to be unsuitable for the school environment when safety is a primary concern. A search may be conducted when there are reasonable grounds that evidence will be found showing a student’s violation of the law or school rules according to New Jersey v. T.L.O. The search must be conducted reasonably especially in light of the age and sex of the student. The search must not be excessively intrusive based on those factors. See New Jersey v. T.L.O., 469 U.S. 325, 332 (1985).
For example, a strip-search of a student has been found highly intrusive. A fairly recent Supreme Court case reviewed facts in which a thirteen-year-old student was asked to remove clothing and “shake out” her underwear while school officials looked for prescription-strength ibuprofen. The student’s attorney argued that the search was very intrusive on a young, female student when the only allegation was that she might have prescription-strength ibuprofen. High Court Weighs School Strip Search Arguments, ABC News. http://abcn.ws/2rZ0Nqf
Each case depends on the individual facts and surrounding circumstances. The bottom line is that public school officials are state actors who have to abide by a certain standard when subjecting an accused individual to a search or seizure, otherwise they may risk violating the 4th Amendment.
For more information on Constitutional rights, contact Parton & Associates, PLLC.
-Drafted by Megan S. White, Attorney-at-Law
The Charlotte Observer reported that the Charlotte-Mecklenburg Police Department (CMPD), the largest police department in North Carolina, is implementing a new program to help solve current and cold cases. You may be thinking new DNA testing or interrogation methods but you would be wrong. The CMPD is leaving it to the cards, literally. CMPD is printing the faces of murder victims onto playing cards that will be handed out to prisoners in Mecklenburg County.
CMPD hopes that by placing pictures of murder victims onto decks of cards, prisoners will contact Crime Stoppers with information. With approximately 600 open homicides in the city of Charlotte, the first set features 26 victims on the deck of cards. Inmates will also be compensated for passing on a successful tip to Crime Stoppers.
How will this help solve crimes in Charlotte? It is extremely possible that prisoners may take advantage of this newly implemented program. It is common for what are called “jailhouse snitches” to falsely claim to know something about a case in exchange for receiving less time in jail. Not only is this a huge waste of time for investigators but it also reopens the old wounds of the victim’s family. It is also common for “jailhouse snitches” to seek out information from other inmates at the direction of the police which violates the United States Constitution. In hopes of receiving less jail time and potentially money for themselves or family, false tips may be given to Crime Stoppers as a result of this practice. Two men in Southern California were living like “kings” because they worked as jailhouse snitches raking in $335,000 between the two of them in four years. These snitches became so well paid; California passed a state bill to correct the payment of informants. Likewise, these men dodged the death penalty by informing the police of statements made by inmates. Tony Saavedra, 2 Jailhouse Snitches, who were paid $335,000 over Four Years, Spark New Legislation, The Orange County Register (May 4, 2017, 2:23pm), http://bit.ly/2qaBpwN .
Is this a violation of the Sixth Amendment? Under the United States Constitution, a criminal defendant has the right to assistance by an attorney. The right to an attorney is critical in nearly every phase of the criminal process. In some form, placing a deck of “victim cards” into prisons could loosely be considered entrapment. Without an attorney present, prisoners could be questioned concerning certain local cases. Other inmates could also elicit criminal statements at the direction of the police. This is dangerous in preserving individuals constitutional right to an attorney. Likewise, this degrades the criminal justice system. One article discussing this issue explains that this practice “breaks down the integrity of the criminal justice system in three key ways: innocent people go to prison, justice for victims is delayed and public trust in the criminal justice system is eroded.” Tony Saavedra, 2 Jailhouse Snitches, who were paid $335,000 over Four Years, Spark New Legislation, The Orange County Register (May 4, 2017, 2:23pm), http://bit.ly/2qaBpwN .
Finally, who would want to use this deck of cards? These are photos of murder victims. I doubt that many prisoners will be eager to use these cards. Time will tell as to whether this new program can help solve any crimes. The likelihood of the right person getting ahold of a card they have some knowledge on would be rare. CMPD hopes that “street knowledge” will come to light through a deck of cards. CMPD had a clearance rate of 66% in 2016. A clearance rate is the ability of a police department to solve a homicide. Normally, this is established by arresting someone for the crime. While the CMPD average is about 1% higher than the national average, it still makes you wonder how much a deck of cards can help solve a crime.
While it is certainly sad that these cases have continued to be unsolved, it is unclear as to what role these cards will play with leads and tips. Additionally it is yet to be determined how accurate these tips will be. Unfortunately, it may create more confusion and harm to the families of these victims. At this time, only one deck of cards has been printed.
-Megan S. White, Attorney-at-Law
The Charlotte Observer article may be found at: http://bit.ly/2qaF3qi
Today is being organized as A Day Without Latinos where some Hispanics did not go to work, did not send their children to school, and boycotted businesses.
On my way to work, I noticed a rally of hundreds of people kicked off at noon today at Marshall Park in Charlotte. Some were waving American flags while others held signs that read: “No Ban - No wall. Stay united”, “Stop Racism” and “We are not criminals.”
It made me curious as to whether or not those people here illegally had an unqualified right to free speech. On May 7, 2015, the Department of Justice (DOJ) lawyers in the Federal District Court in San Antonio, Texas, argued that immigrants who are not legally admitted into the United States do not have free speech rights under the First Amendment.
If the DOJ is right, that would mean that millions of unauthorized immigrants in the United States could be censored or punished for speaking their mind, thereby undermining their ability to participate in the debate over important issues, such as immigration reform and the Dream Act. Moreover, since the First Amendment covers more than speech, the DOJ’s argument has implications for other fundamental rights, including freedom of religion.
There may be good reasons to argue that freedom of speech should apply to everyone in the United States, but there is little definitive case law on point. In fact, there are instances where the Court has permitted the Federal Government to single out disfavored political groups, at least in the context of deciding whether to exclude or deport a non-citizen. Pineda Cruz et. al v. Thompson et al., 5:15-CV-00326, (W.D. Tex. 2015). Despite dancing around the edges of the issue, courts have not definitively decided whether non-citizens have freedom of speech when they are in the country unlawfully.
Ironically, I received my citizenship today. While studying for the test, I noticed that one of the questions read “What are two of the rights of everyone living in the United States? “ and “Freedom of Speech” was one of the right answers.
As a Latina I stand in solidarity with all of my fellow immigrants who came to this Country following the law. However, I understand that millions of immigrants have come to this country in pursuit of basic rights. I understand that rights such as freedom of expression, of religion, of speech, and the right to bear arms, which are the foundation of our Country’s character, are critical to ensuring a formidable, autonomous citizenry. Those rights, however, should come with the same duties imposed on citizens; such as paying taxes and obeying the laws.
-Written by Shirley Garrison, Paralegal, Licensed Bolivian Attorney
For more information on Constitutional rights, contact Parton & Associates, PLLC.
Most people don’t keep up with statutory amendments, proposed legislation, or case law developments, but are generally aware of prohibited behavior like stealing, assault etc. that is illegal in North Carolina. However, ignorance of the law is not a defense, and most people aren’t aware that other, more obscure activities, such as serving alcohol at a bingo game, stealing grease, or failing to keep a detailed record of cotton sales, that constitute crimes. Here are some of the stranger North Carolina criminal laws that could land you in the slammer as originally highlighted by Charlotte Stories:
It's illegal to borrow your neighbor's dog.
North Carolina General Statute § 14-82. Taking horses, mules, or dogs for temporary purposes. If any person shall unlawfully take and carry away any horse, gelding, mare, mule, or dog, the property of another person, secretly and against the will of the owner of such property, with intent to deprive the owner of the special or temporary use of the same, or with the intent to use such property for a special or temporary purpose, the person so offending shall be guilty of a class 2 misdemeanor.
Oral sex is a Felony
North Carolina General Statute § 14-177. Crime against nature.
If any person shall commit the crime against nature, with mankind or beast, he shall be punished as a Class I felon. Among other acts, oral sex is considered to be a crime against nature.
It's illegal to hold an organizational meeting while wearing a mask
North Carolina General Statute § 14-12.10. Holding meetings or demonstrations while wearing masks, hoods, etc.
No person or persons at least 15 years of age shall while wearing a mask, hood or device whereby the person, face or voice is disguised so as to conceal the identity of the wearer, hold any manner of meeting, or make any demonstration upon the private property of another unless such person or persons shall first obtain from the owner or occupier of the property his or her written permission to do so, which said written permission shall be recorded in the office of the register of deeds of the county in which said property is located before the beginning of such meeting or demonstration.
It's illegal to have sex in a hotel room if you're not married (and it's also illegal to lie about being married).
North Carolina General Statute § 14-186. Opposite sexes occupying same bedroom at hotel for immoral purposes; falsely registering as husband and wife.
Any man and woman found occupying the same bedroom in any hotel, public inn or boardinghouse for any immoral purpose, or any man and woman falsely registering as, or otherwise representing themselves to be, husband and wife in any hotel, public inn or boardinghouse, shall be deemed guilty of a Class 2 misdemeanor.
It's against the law to not pay taxes on any illegal drugs you deal.
North Carolina General Statute § 105-113.107. Excise tax on unauthorized substances.
(a)Controlled Substances. - An excise tax is levied on controlled substances possessed, either actually or constructively, by dealers at the following rates:
(1) At the rate of forty cents (0.40) for each gram, or fraction thereof, of harvested marijuana stems and stalks that have been separated from and are not mixed with any other parts of the marijuana plant.
(1a) At the rate of three dollars and fifty cents ($3.50) for each gram, or fraction thereof, of marijuana, other than separated stems and stalks taxed under subdivision (1) of this section.
(lb) At the rate of fifty dollars ($50.00) for each gram, or fraction thereof, of cocaine.
(2) At the rate of two hundred dollars ($200.00) for each gram, or fraction thereof, of any other controlled substance that is sold by weight.
It's illegal to serve alcohol at a bingo game.
North Carolina General Statute § 14-293. Allowing gambling in houses of public entertainment; penalty.
If any keeper of an ordinary or other house of entertainment, or of a house wherein alcoholic beverages are retailed, shall knowingly suffer any game, at which money or property, or anything of value, is bet, whether the same be in stake or not, to be played in any such house, or in any part of the premises occupied therewith; or shall furnish persons so playing or betting either on said premises or elsewhere with drink or other thing for their comfort or subsistence during the time of play, he shall be guilty of a Class 2 misdemeanor. Any person who shall be convicted under this section shall, upon such conviction, forfeit his license to do any of the businesses mentioned in this section, and shall be forever debarred from doing any of such businesses in this State.
Stealing over $1,000 of grease is a class H felony.
North Carolina General Statute § 14-79.2. Waste kitchen grease; unlawful acts and penalties. (a) It shall be unlawful for any person to do any of the following:
1. Take and carry away, or aid in taking or carrying away, any waste kitchen grease container or the waste kitchen grease contained therein, which container bears a notice that unauthorized removal is prohibited without written consent of the owner of the container. 2. Intentionally contaminate or purposely damage any waste kitchen grease container or grease therein. 3. Place a label on a waste kitchen grease container knowing that it is owned by another person in order to claim ownership of the container.
(b) Any person who violates subsection (a) of this section shall be penalized as follows: 1. If the value of the waste kitchen grease container, or the container and the waste kitchen grease contained therein, is one thousand dollars ($1,000) or less, it shall be a Class 1 misdemeanor. 2. If the value of the waste kitchen grease container, or the container and the waste kitchen grease contained therein, is more than one thousand dollars ($1,000), it shall be a Class H felony.
For more information on North Carolina criminal law, contact one of the attorney's at Parton & Associates, PLLC.
Constitution Day, originally known as “Citizen Day”, has been celebrated since 1940 to recognize all those who have become citizens of the United States, and to commemorate the signing of a document which has been described as so “sufficiently rational and coherent to be regarded almost as the product of a single wise mind or legislator.” The Federalist, No. 78 p. 466; 36 U.S.C. § 106. The incredible four page document is the fundamental law that has held our Country together for more than 200 years. In recognition of this Holiday we wanted to share our favorite Constitutional provisions.
“My favorite clause of the United States Constitution is the Ex Post Facto clauses contained in Articles 9 and 10. The Ex Post Facto Clause, in part, prohibits the state and federal governments from criminally punishing conduct that was lawful when committed. Imagine finding yourself charged with a misdemeanor or felony for something you did in the past that, when committed, was totally legal. It would be wildly unfair to later punish you for those acts. Without the Ex Post Facto Clause, the risk of being criminally punished for acts that later become unlawful would create severe distrust in our criminal justice and legal systems.” - Stephanie
“The 1st Amendment of the Constitution is the one I like more because it guarantees the rights of religion, free speech, and the press. It means that a citizen has the right to speak out against the government if they don't like what it is doing and they cannot be arrested for it. You also have the right to choose your own religion or none at all. And the press has the right to print what they want without fear of government interference. Compare this to countries like Russia where they used to throw people in prison for speaking out against the government, or Venezuela and even my home country of Bolivia, where the government has seized and taken over television and radio stations because they were reporting against the government, or many countries in the Middle East where you can be thrown in prison or even killed for being a Christian.” – Shirley
“The Equal Protection Clause under the 14th Amendment of the U.S. Constitution is my favorite clause. This Clause is very important because it ensures that similarly situated individuals will be treated equally in regards to qualifications and access to rights and privileges regardless of their race, religion, national origin, alienage, gender, or legitimacy. In other words, this clause helps to ensure that everyone is treated fairly. This is important because it means that individuals will be judged and treated according to their actions and what they bring to the table rather than by where they came from, what religion they practice, or what gender they are.” - Brittny
“The 10th and often overlooked Amendment to the Constitution reserves the rights not expressly given to the Federal in the Constitution to the States and to the People. It is an express reminder of the faith our Founding Fathers had in the ability of the People to solve the majority of problems on their own without government interference.” – Corey
“Article 5 of US Constitution allowing for amendments is one of my favorite Articles in that it shows the foresight the Drafters of the US Constitution. By establishing a dynamic rule of law as opposed to a static establishment of order the Drafters gave the Constitution the ability to grow with our great country. While I firmly believe in the principles and guidance that our Founders observed in establishing One Nation under God, it is truly amazing that in 1789 the constructors of this concise body of law and order realized that as time passed and our Country aged, so too would its people and culture. Our generation has seen social and technological revolutions that only our Constitution could support. The ability to amend the Constitution while preserving the separation of powers so that a truly democratic government remains in tact is fascinating.” - Burton
For more information on Constitutional Law contact Parton & Associates, PLLC.
The North Carolina Rules of Civil Procedure Rule 41 permits a Plaintiff on his or her own account to dismiss a previously filed action at any time before resting their case. This permits the Plaintiff to take a second bite at the apple, so to speak, and re-file the same action a second time so long as its done within one year or, as case law points out, before the end of the original statute of limitations.
Rule 41 uses ambiguous language as to the time allotted for the Plaintiff to re-file the case: “If an action commenced within the time prescribed therefor, or any claim therein, is dismissed without prejudice under this subsection, a new action based on the same claim may be commenced within one year after such dismissal (…)” N.C. Gen. Stat. § 1A-1, Rule 41(a)(1). This language makes it sound like a Plaintiff can only re-file the action within one year of the dismissal, but case law provides otherwise.
In Guyton v. FM Lending Servs., the Plaintiff voluntarily dismissed an action filed against the Defendant. This cause of action contained a three-year statute of limitations. More than a year later, Plaintiff brought the same action once again against the Defendant. The Trial Court dismissed the Plaintiff’s action because it was filed outside of the one year window under Rule 41. In reversing the Trial Court’s decision, the Court of Appeals explained that Rule 41 was implemented to extend the time to file one year from the date of the voluntary dismissal; however, Rule 41 is not to be used as a tool to shorten the Plaintiff’s time to re-file. Guyton v. FM Lending Servs., 199 N.C. App. 30 (2009). A Plaintiff will always have a right to re-file the action within the statute of limitations. Guyton, 199 N.C. App. 34. The Rule 41 one-year provision is a tool to give a Plaintiff with an expired statute of limitations an additional year to re-file the claim. Id. In other words, a Plaintiff who voluntarily dismisses a claim can re-file that claim within the statute of limitations of that claim or one year of the voluntary dismissal. Id.
Rule 41 is a wonderful tool a Plaintiff can use to his or her advantage but its not without limitations. Under Rule 41 “a notice of dismissal operates as an adjudication upon the merits when filed by a Plaintiff who has once dismissed in any court of this or any other state or of the United States, an action based on or including the same claim.” N.C. Gen. Stat. § 1A-1, Rule 41(a)(1). In other words, the Plaintiff only gets one extra bite at the apple. A Plaintiff who tries to voluntarily dismiss a claim a second time will be barred from ever bringing the same claim again, even if the original statute of limitations has not yet expired on that action. Plaintiffs should also be careful when using a Voluntary Dismissal, since Courts are authorized to tax the costs incurred against the “voluntary dismisser”.
For more information on how lawyers can use the North Carolina Rules of Civil Procedure to benefit their clients, contact Parton & Associates, PLLC.
Written by Brittny M. Kaltenbach, Associate (NC License Pending)
Es muy importante entender los derechos y obligaciones de los Refugiados en los Estados Unidos de América, en especial aquellos referidos a los niños.
Que un solicitante sea o no elegible para aplicar por el refugio será determinado por un oficial o por un juez de inmigración. Los solicitantes están sujetos a una investigación de antecedentes penales y control de seguridad.
Debido a la importancia del resultado de una solicitud de refugio, es prioritario entender los derechos y obligaciones de uno ante la ley, por lo cual es siempre recomendable buscar el consejo de un abogado especializado en derecho migratorio.
Basados en el siguiente artículo del Washington Post, Obama esta a punto de expandir un Programa para niños refugiados proveniente de El Salvador, Guatemala y Honduras, por el excesivo ingreso de menores en el país en los pasados años. https://www.washingtonpost.com/politics/us-to-expand-refugee-program-for-central-american-minors/2016/07/26/242ab0cc-533f-11e6-bbf5-957ad17b4385_story.html
En el caso de los niños refugiados, como se puede ver en el artículo, no siempre los que aplican son aceptados, es mas el índice de aplicaciones aprobada en improbable. Por ello se debe pensar que la posición de estos niños al tratar de ingresar en esas condiciones al país, los expone a innumerables peligros.
Muchos padres envían a sus niños a cruzar la frontera y pedir refugio sin supervisión alguna, a veces con el sincero propósito de buscarles mejor vida, pero sin tener el conocimiento de que se deben seguir ciertos requisitos requeridos por ley, como lo estipula el Departamento de Ciudadanía y Servicios Migratorios USCIS. https://www.uscis.gov/es/CAM
Si los Padres del menor aplicante no cumplen ciertos requisitos, el menor no será reconocido como refugiado. Solo ciertos padres que están legalmente presentes en los Estados Unidos son elegibles para ser considerados padres que cualifican y presentar una solicitud por sus hijos.
Padres que no cumplen con la ley, y que tienen cierto record criminal no son elegibles en muchos casos, por lo cual es importante mantener un record limpio si se desea solicitar un hijo como refugiado.
Habrá que esperar nuevas políticas que se implementen en este sentido, por lo pronto las reglas están dichas y solo basta con cumplir con la ley, y/o recibir un consejo legal adecuado dependiendo el caso.
The recent trend of states enacting “religious freedom” and “anti-discrimination” laws has sparked passionate debate about whether the laws are truly meant to “protect sincerely held religious beliefs and moral convictions of individuals, organizations and private associations” as Mississippi Gov. Phil Bryant claims, or being used to open the door to discrimination in the name of religion. In short, the bills preemptively protect businesses from being punished for refusing to offer services to lesbian, gay, bisexual and transgender people and are in reaction to, or fear of, state laws that do the opposite: restrict businesses from refusing service based on an individual’s sexual orientation. Neither type of law yields a good outcome. The Christian bakery compelled to bake a cake for a same-sex wedding will have their religious freedom stifled on the one hand; while a law codifying the right to refuse will understandably make LGBT individuals feel legally outcast, and could arguably encourage businesses to discriminate on the other. There’s no regulation that results in no discrimination on this front.
So what should state governments do? The answer is one so simple that most people are too fired up and impatient to consider it: DO NOTHING. America was founded on a very limited number of guaranteed rights for individuals, but was otherwise designed to operate and rely on economic incentives. Businesses have a clear, natural financial motive not to discriminate: less customers equals less money. Take, for example, the Indiana Pizza shop that recently went out of business after refusing to serve individuals based on their sexual preference (http://www.usatoday.com/story/news/nation-now/2015/04/01/indiana-family-pizzeria-wont-cater-gay-weddings/70813430/).
Those same economic incentives will also decrease the likelihood that LGBT individuals will be limited in the types of services and products they can access because some clever entrepreneur will be financially incentivized to open a same-sex wedding cake service down the road from a bakery that is willing to forego income based on their religious beliefs. History lends support to this theory. It was generally large businesses that opposed state mandated discrimination during the early 1900s before it was declared unconstitutional. See Thomas Sowell, Preferential Policies, An International Perspective, William Morrow and Company, 1990, pp.20-21. Other, more critical services, such as common passenger carriers, have historically had stricter legal requirements when it comes to discrimination, and ostensibly would not be affected by a state’s lack of anti-discrimination or religious-freedom laws. See Cobb, Howard, “What is and What is Not Unlawful Discrimination by Common Carriers (1896). Historical Theses and Dissertations Collection. Paper 356.
Unfortunately “Do Nothing!”, is a faint rallying cry for politicians anxious to garner support from one side of the issue or the other, but it may be the most plausible, fair solution to this complicated quagmire.
For more information on Constitutional issues and state government policies contact Parton & Associates, PLLC.
Drafted by Corey V. Parton, Esquire.
In honor of International Women's Day, I have written a few tips and tricks for professional womens' dress attire. Along the way, I decided to share a few of those pointers from my recent blog post.
Interview Dress & Style Tips
For the full post go to http://diamondsonhersoul1.blogspot.com/2016/03/professional-dress-tips-tricks.html.
-Drafted by Megan S. White, Law Clerk, 3rd Year Law Student
Like any great resource, the key is knowing how to use it & benefit from it.
S.T.E.P. Court is a wonderful resource offered to Mecklenburg County residents who are facing criminal charges in District Court or Superior Court. The program is essentially free of charge and offers participants the chance to dismiss their pending charges, terminate remaining probation, or transfer the status of their probation from supervised to unsupervised if the program is successfully completed.
There are four main S.T.E.P. Court programs that vary by charge: Superior Court, District Court, DWI Treatment Court, and Mental Health Court. Each program has its own requirements for eligibility and participation. For example, to participate in DWI Treatment Court, a participant must be a Mecklenburg County resident, convicted of a level 1 or 2 DWI, or convicted of a probation violation. To participate in the District Court program, a participant must be a Mecklenburg County resident, and must be charged with one of the following crimes: Felony Possession of a Controlled Substance, Obtaining a Controlled Substance by Fraud or Forgery, Felony Property crimes, Class 1 Misdemeanor Drug or Property crimes, or Misdemeanor Probation Violations involving Class 1 Misdemeanors.
Each program follows a similar three-phase format, which gradually becomes less intensive. Individuals who wish to participate in the program must first be screened to determine eligibility.
If the individual is eligible they must receive a Court Order to enroll in the program. Once enrolled, the participant will begin the three-phase program. Participants will meet frequently and work with treatment facilities such as Anuvia or Family First, the S.T.E.P. Office, and the "treatment team", which is compiled of a District Attorney, Public Defender, Judge, and Probation Officer.
Upon successful completion of all three phases, the participant will have their pending charges dismissed, probation terminated, or supervised probation reduced to unsupervised probation. For more information on The Mecklenburg County S.T.E.P. Court please contact Parton & Associates.
Drafted by Brittny M. Kaltenbach
About this blog
The law applies differently in each situation. Nothing on this page should be construed as or be relied upon as legal advice.