Category Archives: Laws

Don’t use cellular phone to track without a warrant

cell phone track“Police violated a burglary suspect’s state constitutional right to privacy when they located him using cellphone tracking information without first obtaining a warrant, a New Jersey appeals court ruled on Friday.

Read more: http://www.njlawjournal.com/id=1202642187228/Tracking-Suspect%27s-Cellphone-Without-Warrant-Flouted-Constitutional-Rights#ixzz2tJTc9thZ

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Sex Trafficking in America-Aggravated Prostitution-Is Having Aids a Crime?

Prostitute talking to a potential customer in ...

Prostitute talking to a potential customer in Western Europe – Kay Chernush for the U.S. State Department (Photo credit: Wikipedia)

I sometimes forget about AIDS as it never comes into the news much, except for Africa, and there I thought the US was helping Africa get control of the AIDS epidemic. But we have forgotten about our own problems. Amazing that you can get treatment in Africa, but evidently not in Tennessee. In Tennessee a person is sentenced to the Sex Offender list for being HIV positive.  I came across this blog, Criminal HIV Transmission from the HIV Justice Network.

From the Knoxville News Sentinel, June 2009

[The woman] differs from most of the 525 other known prostitutes arrested in Knox County over the past five years in one significant way: she is HIV-positive. [Her] medical condition means that when she turns tricks for a living she’s committing a felony called aggravated prostitution. Women without HIV face misdemeanor prostitution charges that often add up to no more than probation and a fine. [She] is a repeat offender, having been convicted twice of being an HIV-infected prostitute before she was arrested a third time early this year, records show. Despite the fact that she’s never been accused of any type of sexual assault, her criminal history already means she must register as a sex offender under state law and follow many of the same restrictions as rapists and child molesters.

US Conference of Mayors has asked to decriminalized AIDS.  Read this.  

Today, the U.S. Conference of Mayors passed a resolution calling for “the elimination of HIV-specific criminal laws and implementation of approaches to HIV within the civil and criminal justice systems that are consistent with the treatment of similar health and safety risks.”
It goes on to support the REPEAL HIV Discrimination Act and endorses the recommendations of the Presidential Advisory Council on HIV/AIDS for ending federal and state HIV-specific criminal laws, prosecutions, and civil commitments. – See more at: http://www.hivjustice.net/news/united-states-conference-of-mayors-calls-for-the-elimination-of-hiv-specific-criminal-laws/#sthash.6I8sVE6W.crQIC1q0.dpuf
In North Carolina, our only incidents with HIV people is when they are arrested and the police report being bitten, spit on, etc..(What -no infected prostitutes?) According to the statement by the US Conference of Mayors,
“WHEREAS, nearly all HIV-specific criminal laws do not consider correct and consistent condom use and effective antiretroviral therapy that reduces the risk of HIV transmission to near-zero as evidence of a lack of intent or ability to harm; and behaviors that according to the Centers for Disease Control and Prevention (CDC) have negligible risk of transmitting HIV, such as spitting and biting, have resulted in sentences as long as 35 years: and – “

Time for our legislators to actually research the law before just passing law in reaction to opinion.

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With No Unified Database, Many Murder Victims Remain Nameless – WNYC

With No Unified Database, Many Murder Victims Remain Nameless – WNYC. The need for a national database of missing persons.

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We now conduct searches to help prevent this

DENVER - APRIL 02:  (L-R) Prospective home buy...
Image by Getty Images via Daylife
by Mark Spencer

 

Editors Note: This article was originally published on November 10, 1997.


This four-part series focuses on the personal safety issues facing the real estate professional as illustrated by the disturbing experiences and subsequent coping responses of two Realtors who each were viciously attacked while showing homes to what they assumed were prospective buyers. One stayed in the real estate business, determined to educate other Realtors how to protect themselves from similar crimes. The other left the profession, too traumatized by her ordeal to return. Also included in Mark Spencer’s informative series are life-saving tips for how Realtors — who assume considerable risk every day — can avoid becoming the next tragic statistic. Parts 1-4 will run in installments today through Thursday this week.

Neither woman ever thought it could happen. But it did.

Both of them were attacked while showing houses to a prospective buyer. Now, both of these women want to spread the word that it can happen to any real estate agent — anytime, anywhere — and that agents who take a few preventive measures now will reduce the likelihood of becoming the victim of an assault.

The changes these two Realtors made in their lives will be examined in this four-part series, and their ideas for improving safety in the profession will be offered alongside safety guidelines from professional organizations and associations. But the overriding message is simple: Realtors are vulnerable. They travel alone to vacant properties with strangers. Men are robbed; women are robbed and sometimes raped. And both sexes are murdered. According to the National Institute for Occupational Safety and Health (NIOSH), about 70 real estate agents were killed on the job between 1980 and 1992, the last year for which statistics are available.

“Seven-zero?” asks Jim Massey in Decatur, Ill. He sadly remembers the 30-year-old single mother who worked in his real estate office. She was slain in 1994. The sheriff’s office told Massey they have a suspect in the case, but so far, no arrest has been made. Charlotte Fiminano will also be included in the NIOSH statistics. Fiminano was strangled and shot in the head in September 1996 in an upscale area outside Bethlehem, Pa. Police say they have determined whether Fiminano’s killer was a stranger or an acquaintance, but that information has not yet been released to the public.

In recent years, Realtors have become increasingly wary about holding open houses. It’s a valid concern, considering that 71 percent of home sales come from sources other than referrals and friends — meaning strangers.

Perhaps most alarming is that statistics aren’t available for the attacks which didn’t result in death. But efforts to collect that information would be futile, Malone says; she believes a large number of incidents are never reported because victims fear embarrassment or worse, retaliation.

“Unfortunately, we’re dumb,” Malone says. “We all end up forgetting about the things that happen … I would never have thought anything like that could happen to me. It can happen.”

Part 2 of the series, Realtor Joan Malone recounts her terrifying ordeal.

To read the rest of the article, please visit Realty Times

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Transparency and the Jacksonville Police Department

Florida Beach - Police Cars
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This is transparency.  Makes accountabilty as a “public official”  very real for this employees.

Report: 6 Jacksonville Beach officers disciplined in 2008

JACKSONVILLE BEACH – Six police officers were disciplined last year after internal affairs investigations showed they violated rules of conduct in cases including a drunken-driving arrest, auto accidents and an unauthorized chase.

One of the most serious penalties was issued to Cpl. Robert Bacon, the officer who fatally shot a man who threatened him with a gun in 2005.

A summary of Bacon’s internal affairs report and several others recently became public as part of the Jacksonville Beach Police Department’s annual internal report.

Bacon received 80 hours’ suspension, a demotion in rank and six months’ probation for showing up intoxicated at the Police Department about 8 p.m. Oct. 3, according to the report. He was off-duty at the time.

Bacon wasn’t arrested or charged with drunken driving. However, his behavior drew the attention of another officer, who noticed his awkward parking and unsteady gait. Bacon told the officer not to report him to the supervisor on duty and asked him to drive him somewhere, causing the officer to leave his post, the records said.

Bacon received a medal of valor and was promoted to sergeant after the 2005 shooting of 21-year-old Jamie Williams, which police and prosecutors concluded was justified.

Police said Williams and two friends were involved in a botched plot on Oct. 11, 2005, to rob and kill a Jacksonville Jaguars cheerleader in Neptune Beach. After fleeing an attempted burglary at the cheerleader’s house, Williams got a gun, ran into the ocean and turned the weapon to his own head. He then pointed the gun at Bacon and refused Bacon’s orders to drop it.

During last year’s internal affairs investigation, Bacon told officers that he had consumed four beers hours before he arrived at the department. As part of his discipline, Bacon was required to participate in the Employee Assistance Program.

Alcohol also created a problem for Officer Dan Watts, who was arrested July 28 on Jacksonville’s Westside and charged with a drunken-driving accident. Watts was driving home from work about 2:30 a.m. when he ran a red light at Chaffee Road and his truck struck a commercial cargo tractor-trailer. No one was seriously injured in the accident.

Watts received 200 hours’ suspension for violating codes of conduct. In addition, the department required him to participate in the Employee Assistance Program and indefinitely suspended his use of patrol cars, requiring him to patrol the community with a bicycle or Segway.

Records in his internal affairs file show Watts’s blood-alcohol level was about 0.16, twice the legal limit to drive. Watts told internal investigation officers that he had four to six drinks over a four-hour period before the accident.

Here are some of the details in the other four cases:

– Canine Officer Craig Pfeuffer received a written reprimand after he destroyed a patrol car about 2 a.m. Aug. 22 during a high-speed chase on 13th Avenue South and Roberts Drive. He wasn’t wearing a seat belt during the incident.

Pfeuffer was chasing people who had fled a home invasion robbery on Sixth Avenue South. The roads were wet because Tropical Storm Fay had drenched the area.

At one point, Pfeuffer drove up to 73 mph as he pursued the car west on 13th Avenue South. He put on the brakes as he neared the curve at Roberts Drive. But he lost control of the car and it jumped the curb, went airborne and landed in the bushes near a chain link fence.

– Officer Brandon Shoemaker received a written reprimand for chasing people in a stolen truck Aug. 31. Those in the truck were fleeing a burglary in Ocean Cay, a neighborhood off South Beach Parkway.

Shoemaker was chasing the truck about 10 p.m., going south on Third Street South, when a sergeant told him to “break it off” because there was too much traffic and the suspects were involved only in a property crime. Despite the sergeant’s order, Shoemaker turned on the patrol car’s lights and sirens and continued the chase for a few more minutes, the internal affairs report said.

Shortly after crossing into St. Johns County, the suspects’ vehicle lost control and crashed. No one was seriously injured.

– Another case, involving the improper use of a criminal background search in March, led to 30 hours’ suspension for Officer Shawn Stieb and 10 hours’ suspension for Officer Jason Ashton.

Stieb told investigators that he needed to get a criminal background check on his daughter’s friend before she could attend the senior prom with his daughter in St. Johns County. Students who don’t attend St. Johns County public schools can’t buy a prom ticket until they are cleared by a criminal background check.

Ashton was disciplined for letting Stieb do the computerized criminal justice search with his identification number and agreed to sign a memo confirming the girl did not have a criminal record. City policy prohibits police officers from using the criminal background system for personal reasons.

– Officer Michael Branscom received a written reprimand for cursing and using unnecessary force on a woman at a loud house party in the 1300 block of Sixth Avenue North. About 40 people attended the Oct. 4 party, where underage people were drinking alcohol, Branscom said.

He said he entered the back door and asked everyone to quiet down, but they wouldn’t comply. He asked the 21-year-old woman who was hosting the party to help get the situation under control, but she yelled at him, saying he didn’t have the right to enter her house without a warrant. When the woman’s screaming and yelling escalated, Branscom started to handcuff her and she fell to the ground and continued resisting him.

Later, Branscom removed the woman’s handcuffs and issued a citation to her and her brother for hosting the party. He acknowledged using profanity and losing his temper during the incident.

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Sunshine Laws and Access to Public Records in NC

Mmmm....cake.  And government info.
Image by emkeller via Flickr

Are records really public?

BY DALE HARRISON
Sunshine Center — Elon University

N.C. Gov. Bev Perdue issued a proclamation declaring the week of March 15 Sunshine Week across North Carolina. Sunshine Week celebrates transparency in government and calls attention to its importance in our democracy.

This past year since Sunshine Week 2008 has been a reminder that some need to be reminded of the word “public” in public records.

The record is clear. State law is utterly unambiguous:

“The public records and public information compiled by the agencies of North Carolina government or its subdivisions are the property of the people.”

The American public takes its property quite seriously. To be denied what we rightfully own is cause for great consternation. Yet across the state, we are routinely denied our property by “public” officials who seem to be subscribing to an outlaw philosophy that, “Possession is nine-tenths of the law.”

It’s not. The law is explicit: “The public official in charge of an office having public records shall be the custodian thereof.”

The “custodian thereof” — not the owner thereof.

For state officials to treat the public as a nuisance when it requests its own property is unconscionable.

Nevertheless, this is what happens continually from the high peaks of Western Carolina to the lowlands of the Carolina Coast.

What part of “public” do “public officials” not understand?

Public servants in all forms routinely deny records to their rightful owners, from sheriffs to animal shelter directors, from fire chiefs to city and county attorneys, and so on.

What would result if other custodians routinely denied us our property? If a customer shows up at a bank to withdraw some cash, and she is stonewalled or treated as a nuisance, she would take her money elsewhere.

The bank stands to lose.

But public officials in North Carolina know better: There is nothing to lose by denying citizens their records except the public trust, a clear conscience, and a sense of public service – which, sadly, matter too little to too many state officials.

It’s time for a change. If public officials can’t do the right thing for its own sake, the law needs to respond.

There was a prime opportunity in the past year to remedy the greatest obstacle to transparency in North Carolina government: providing a tangible incentive to public officials to honor the Public Records Law.

The Open Government Act was passed by the N.C. Senate in last year’s session and delivered to the House. But just like a rogue public official stonewalls a public records request, the House mercilessly killed the bill, a move orchestrated by House Speaker Joe Hackney.

The act would have strengthened the Public Records Law in two significant ways, perhaps the most notable of which was providing automatic recovery of attorneys fees for citizens who sue for wrongful denial of their public records property. State agencies and servants would have been provided the incentive they need to honor the law: their pocketbooks.

This would have been the second time in the last few years that the state legislature attempted to strengthen this portion of the law. Public officials and judges didn’t get the message the first time in 2005.

With few exceptions, judges in the state have not had the courage to make government pay when it breaks the law.

The act also would have provided a mediation mechanism to resolve public records disputes before they become lawsuits. It is odd, indeed, that current state law provides only for mediation of disputes over the cost of public records through the state’s PIO chief, but not mediation for wrongful denials.

Arguments against the slain act have been feeble, at best.

In July of last year, Hackney claimed there just wasn’t enough time in the last session to pass the act. Instead, he referred it to committee to carry out the act’s death sentence.

However in January, Hackney indicated he is interested in a bill that provides for some version of automatic recovery of attorneys fees.

“He just wants to make sure the fees are reasonable,” said Bill Holmes, a Hackney spokesman, as reported in The News & Observer. The paper also reported that Hackney wants to be sure judges retain discretion in awarding attorneys fees.

But that discretion is precisely the problem with the current law. The new law is intended to remedy the failure of judges to award fees when warranted.

And quite frankly, this isn’t Hackney’s call. The Senate made its wishes clear by passing the act last year, and the House should have the same opportunity – regardless what the speaker thinks.

The chief argument against automatic recovery of fees has pointed to the absence of a reciprocal provision in the new law to require that citizens pay attorneys fees when warranted.

But there are two fundamental problems with that position. First, citizens already pay the attorneys fees of state agencies through their tax dollars. Second, the law already provides for citizens to pay the attorneys fees of state agencies if a lawsuit is filed “in bad faith or was frivolous.”

It is time to revisit the Open Government Act – and not having time is no longer an excuse.

Further, it is time for public servants who are serving something other than the public to take note of the word “public” in public official — and in public records.

Dale Harrison is the assistant director of the Sunshine Center at Elon University and a professor of journalism in the School of Communications.

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Alienation of Affection and Criminal Conversation in NC

From the Rosen Law Firm

Alienation of Affection and Criminal Conversation

An outsider’s interference with marriage can cost the outsider big bucks in North Carolina
Fairly high-dollar awards in such cases have existed here for a number of years, a fact not generally known. As long ago as 1926, for instance, a jury in MaconCounty rendered a verdict in the amount of $12,000 against the lover of plaintiff’s wife. A 1931 jury in Forsyth County held against plaintiff wife’s father-in-law for $38,000. A Rowan County jury awarded $30,000 against a husband’s girlfriend in 1969. In 1982, our Court of Appeals affirmed a jury verdict in the amount of $25,000 in compensatory damages and another $25,000 in punitive damages.

Moving into the 1990’s, North Carolina juries were even more generous. A 1990 Forsyth County jury award of $300,000 in punitive damages for alienation was sustained on appeal, even though the court struck the compensatory award for $200,000. In 1997 alone, a jury handed down $1.2 million against a female paramour in Forsyth County and awarding another jilted wife $1 million in Alamance County and a deceived husband $243,000 in Wake County. In late 1999, a judge in Durham County valued compensatory damages in a case brought by a husband against his wife’s lover at less than $3,000 in compensatory damages but the judge still awarded $40,000 in punitive damages on the criminal conversation claim.

Even in this decade, the trend of generosity has continued. In August of 2000, a Burke County judge awarded a devastated wife $86,250 for alienation of affection and $15,000 for criminal conversation, totaling $101,250. In May of 2001, in Richmond County, the jury answered the issues of alienation of affection and criminal conversation in favor of the scorned husband and awarded him compensatory damages of $50,000 plus punitive damages of $50,000. Another distraught husband, in Mecklenburg County, received an award of $1.4 million in May, 2001 comprised of $910,000 in compensatory damages and $500,000 in punitive damages.The jury found the doctor who had had an affair with this man’s wife liable for both alienation of affection and criminal conversation. After an appeal the original award of compensatory damages was reversed, the punitive damages award, however, was upheld. In 2007, a Cook County judge ordered a man to pay $4802 to a husband who was grieving the loss of his wife after an affair.

Since our Supreme Court refused to abolish these causes of action in 1984 and since our legislature has shown no strong interest in abolishing these causes of action, sizeable damage awards remain a real possibility in North Carolina. More than 200 alienation actions are filed in an average year.

Conduct after date of separation

The date of separation is an important date in alienation of affection and criminal conversation cases. Our courts have decided that conduct that occurs before the date of separation is relevant to these types of actions. This is because a claim of alienation of affection must prove that, among other things, the defendant’s malicious conduct contributed to or caused the loss of affection in the marriage. The parties to the marriage must still be together in order to prove this claim. It is important to note, however, that conduct which occurs after the date of separation may also be considered by a judge, if that conduct corroborates the conduct that occurred before the date of separation. In criminal conversation actions, by contrast, post-separation conduct is even more important. Conduct which occurs after the date of separation can be considered by a court to not only corroborate behavior that occurred before the date of separation, but is enough on its own to maintain an action for criminal conversation.

North Carolina is in the minority

The existence of continuing cases of this sort in North Carolina appears to surprise lawyers and residents in many other states because we are now in a very small minority of jurisdictions — including Hawaii, Illinois, Mississippi, New Hampshire, New Mexico, South Dakota and Utah — which still recognize both alienation of affection and criminal conversation. Forty three states and the District of Columbia have abolished the cause of action for alienation of affection. The states vary widely in the way they deal with this issue: in some states, only one of the two causes of action continues to exist, and thus proof of the claim and/or damages have been significantly curtailed in recent years. None of these reforms has altered the stance favoring such claims in this State.

Criminal Conversation

Criminal conversation is the name for a civil lawsuit sounding in tort (a kind of injury to the person) based on sexual intercourse between the defendant and the plaintiff’s spouse. Criminal conversation is something like a “strict liability tort” because the only things the plaintiff has to prove are (1) an act of intercourse and (2) the existence of a valid marriage between the plaintiff and the adulterous spouse, and (3) the bringing of the lawsuit within the applicable statute of limitations. For all practical purposes, there are no obvious defenses to a timely claim for criminal conversation, provided the plaintiff can prove a valid marriage and intercourse between the defendant and plaintiff’s spouse. It is not a defense that: the defendant did not know the other person was married, that the person consented to the sex, that the plaintiff was separated from his or her spouse, that the other person actually seduced the defendant, that the marriage was an unhappy one, that the defendant’s sex with the spouse did not otherwise impact on the plaintiff’s marriage, that plaintiff had mistreated the spouse, or that the plaintiff had also been unfaithful. It might be a defense that the plaintiff “consented” to the illicit intercourse; but defendant would have to show that this approval or encouragement had pre-dated the extramarital conduct.

Alienation of Affection

An action for alienation of affection, on the other hand, does not require proof of extramarital sex. Despite this difference, an alienation claim tends to be more difficult to establish because it is comprised of more elements and there are some additional defenses. To succeed on an alienation claim, the plaintiff has to show that (1) the marriage entailed love between the spouses in some degree; (2) the spousal love was alienated and destroyed; and (3) defendant’s malicious conduct contributed to or caused the loss of affection. It is not necessary to show that the defendant set out to destroy the marital relationship, but only that he or she intentionally engaged in acts which would foreseeably impact on the marriage. Thus, defendant has a defense against an alienation claim — but not to a claim for criminal conversation — where it can be shown that defendant did not know that the object of his or her affections was in fact married. As with a criminal conversation action, it is not a defense that the non-innocent spouse consented to defendant’s conduct. But it might be a defense that the defendant was not the active and aggressive seducer. If defendant’s conduct was somehow inadvertent, the plaintiff would be unable to show intentional or malicious action. But prior marital problems do not establish a defense unless such unhappiness had reached a level of negating love between the spouses.

Criticism of these laws

Critics of such laws call them obsolete methods for legislating morality (despite the fact that most criminal laws could be said to legislate morality). Critics also say the laws do not fulfill their purpose of protecting marital relationships, inequitably punish only one of two guilty parties, and serve as an excuse for blackmail or forced settlements. The critics add that such suits can also be misused by embittered spouses seeking vengeance against a third party interferer and that injured spouses cannot possibly be compensated for a lost marriage. On the other hand, defenders point to the virtual non-existence of criminal prosecutions for adultery in current American culture, a need to uphold the sanctity of the marriage vows through some kind of formal legal sanction for violation of marital promises, and the potential deterrence of rampant extramarital affairs by means of the threat of monetary damage suits. Defenders also point out that adultery has a very long history of illegality; and that it is therefore appropriate for the civil laws of criminal conversation and alienation of affections to perpetuate Western culture’s longstanding disapproval, by law and by custom, of extramarital affairs.

Whether one thinks it is a good or a bad situation for North Carolina to continue to recognize such claims by spouses claiming injury to their marriages may largely depend, then, on one’s views of the need in the 1990s for protection of the marital relationship through civil litigation against the non-spouse wrongdoer and for monetary remedies for the alleged harms caused to that relationship. Indeed, some commentators have mentioned that high jury verdicts and the renewed popular interest in lawsuits for alienation of affections and criminal conversation may signal a growing societal disaffection with overly permissive sexual standards and a desire for stricter enforcement of family values. Pro-family writers believe it important that deceived spouses have litigation-oriented opportunities for vindication and that society retain this acknowledgment, however marginalized at present, of the supremacy of the institution of marriage against unwarranted intrusion. Ultimately, of course, these are all subjective and philosophical viewpoints likely to vary considerably from person to person.

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