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Interrogation of Child Abuse Victims

The United States Supreme Court recently had before them the case of Camreta v. Green, 131 S. Ct. 456 (2010). In this case, the issue presented was whether the Fourth Amendment to the United States Constitution requires government officials to obtain a search warrant or parental permission before they can interrogate a suspected child abuse victim. The second issue was whether an official who fails to obtain a search warrant or permission of the parents can be held liable for violation of civil rights laws.

Child Protection Agencies claim that they need to investigate abuse cases without giving prior notification to the possible perpetrators of these acts. In this case, the social worker, Bob Camreta, conducted an interrogation of a child at the child’s school. This was done without a warrant. The United States Court of Appeals for the 9th Circuit held that this warrantless interrogation violated the Fourth Amendment rights of the child. The court also stated that Mr. Camreta was protected by a qualified immunity from being held personally liable for civil damages under Section 1983 of the Civil Rights Law.

Child Abuse Allegations In New York

Here’s how the system works in New York: Someone files a complaint with the New York State Child Protective Services (CPS). A local investigator comes to the house and insists on seeing the child. If the parent or guardian refuses to let the investigator see the child, the investigator claims he’s going to get a court order. He threatens to take the child away from the parents. Although the Child Protection Agency seeks to protect children, in New York, they often violate the Fourth Amendment rights of the parents and the child.

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Fathers’ Rights

We protect fathers’ rights in divorce situations. We litigate spousal maintenance issues (alimony), child support, child custody, child visitation and we deal with the equitable distribution of property issues in divorces. We also negotiate separation agreements on behalf of our clients. Should the mother seek to leave the state with the child, we litigate relocation problems.

When our clients lose their jobs or have reduced income, we bring applications to reduce child support payments. We also educate our clients with regard to the new no-fault divorce law. In contested, nasty divorces, we deal with issues involving parental alienation and parental alienation syndrome caused by one parent making negative statements about the other parent to the children. Should you have a Family Court or divorce issue, feel free to call us for a free consultation at 1-800-344-6431, 516-561-6645 or 718-350-2802.

Same Sex Marriage Fails in Maryland

There is a bill before the Maryland State Legislature to allow same sex marriage. On Friday, March 11, 2011, this bill was withdrawn from consideration due to the unlikelihood of the bill being passed by the state legislature. The law was titled the Civil Marriage Protection Act. For the past few weeks, the bill sponsors have been claiming that Maryland would be the sixth state to pass a same sex marriage law. The sponsors’ difficulties have been increasing in recent days.

The National Organization for Marriage and The Family Research Council both opposed this bill. They claim that African Americans and religious opponents were the reason for the defeat of the bill. They stated that particular thanks must go to African American pastors, church members and delegates who spoke out against the attempted highjacking of the concept of civil rights.

The bill supporters hoped to obtain full marriage rights similar to those that exist in Massachusetts, New Hampshire, Vermont and Connecticut and the District of Columbia. They were not interested in a civil union statute, which they claim was a watered down version of what they wanted. For now, gays can’t marry in Maryland.

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Nassau County Divorce Lawyers

We are divorce lawyers. For more than 33 years, we have represented clients concerning issues involving divorces, divorce grounds, family law matters, orders of protection, child custody, child abuse, child neglect, separation agreements, annulments, division of property in divorce, amicable divorce, fathers’ rights, mothers’ rights, mediation and pre-nuptial and post-nuptial agreements.

We also represent individuals married in other states who are seeking divorces in New York. Same sex relationships involve many of the same issues that heterosexual divorce are involved with. Feel free to call us for a free consultation at 1-800-344-6431, 516-561-6645 or 718-350-2802.

Strip Searches in Nassau County

jail1-150x150A federal judge recently held that individuals who are subject to strip searches in the Nassau County Correctional Institution must receive $500 per person. It has been estimated that 20,000 people will be eligible for the $500 pay out.

United States District Court Judge Dennis Hurley has taken this action because these individuals were subject to “humiliation and emotional distress“. The lawsuit against Nassau County stemmed from a policy of the Nassau County Correctional Institution to strip search everyone at their facility. The court held that it was unconstitutionally intrusive to force people accused of minor misdemeanors to expose their private parts without some reason to suspect that they are hiding something. The lawsuit was initially brought in 1999.

In the past, Nassau County had taken the position that since 85% of the prisoners were male and the searches were always conducted by officers of the same gender, that the damages are excessive. Nassau County claimed that the officers did not touch the prisoners and the prisoners were only required to be naked for 30-45 seconds.

However, Nassau County did admit that each of the prisoners were forced to spread their buttocks as part of the search. The District Court Judge Hurley disagreed with Nassau County’s position.

In his ruling, he stated that “it is hard to believe that the grievous affront to human dignity occasioned by being subjected to an unwarranted visual body-cavity search would not warrant an award considerably in excess of nominal damages. Nassau County has indicated they will appeal the ruling.

We can assist you with criminal matters, misdemeanors, felonies and issues involving personal injury. Please call our office at 1-800-344-6431 or contact us by email.

A Problem (And Solution) With the Miranda Right to Counsel

mirandaOur office maintains a significant criminal defense practice and therefore the issue of police Miranda violations is of great interest to the firm.

Miranda v. Arizona established a “Miranda right to counsel” during custodial police interrogations, purportedly based on the Fifth Amendment. One problem with the Miranda decision is that the Sixth Amendment right to counsel during “criminal prosecutions” implies the absence of any constitutional right to counsel prior to the commencement of a formal criminal prosecution. A possible solution to this problem with Miranda‘s interpretation of the Fifth Amendment will be offered.

The Miranda court derives its asserted Fifth Amendment right to counsel from the provision that “[n]o person shall… be compelled in any criminal case to be a witness against himself.” The court reasoned that someone’s right not to be compelled to make incriminating statements is functionally impossible without an implied right to counsel during an “inherently coercive” custodial interrogation, which usually occurs before the onset of a “criminal prosecution,” i.e. arraignment, when the Sixth Amendment right to counsel kicks in.

The Sixth Amendment states, in pertinent part, that “[i]n all criminal prosecutions, the accused shall… have the assistance of counsel for his defence.” The Supreme Court, in Hamilton v. Alabama, held that the Sixth Amendment right to counsel begins in the “critical stages” of a “criminal prosecution” such as arraignment, when certain defenses must be preserved in many states.

It appears from a comparison between the Fifth and Sixth Amendments, then, that Miranda‘s implied Fifth Amendment right to counsel is broader than the Sixth Amendment’s right to counsel because it applies during custodial interrogation, an earlier point in the process than the subsequent arraignment, when the Sixth Amendment’s right to counsel begins. But there is a logical problem with this.

The Sixth Amendment boldly set forth the rule that one has a right to counsel beginning at arraignment or at some similar “critical time” in criminal prosecutions. If an even broader right to counsel already existed much earlier in the process based on the Fifth Amendment, then what is the Sixth Amendment adding?! Put another way, the Sixth Amendment’s assertion of a right to counsel at a point like arraignment implies that no such right existed prior to that point in the process.

It is all well and good to reason that the Fifth Amendment must imply a right to counsel because one’s right not to be compelled to make incriminating statements against himself during custodial interrogation would be functionally impossible without a concomitant right to have an attorney present. However that is only compelling if no other Amendments make a statement explicitly or implicitly about the presence or absence of a right to counsel. But because the Sixth Amendment grants a “narrower” right to counsel during “criminal prosecutions,” it thereby implies that no right to counsel existed prior to that moment, thus negating any interpretation of the Fifth Amendment that reads a right to counsel therein. This is (one of) my problem(s) with Miranda.

An answer to this problem is possible because it is not actually true that the Miranda right to counsel is broader than the Sixth Amendment right to counsel. In some instances, the Sixth Amendment right is broader than the Miranda Fifth Amendment right. Where a defendant has been arraigned and released on bail pending trial, he is still at a “critical stage” when the Sixth Amendment gives him a right to counsel. But because he is walking free, he is not in a “custodial interrogation,” and the Miranda implied Fifth Amendment right to counsel is not invoked. At that juncture, Miranda‘s right to counsel is narrower and “more lenient” than the Sixth Amendment’s broader right to counsel.

It is possible, then, that an implied Fifth Amendment right to counsel would not render the Sixth Amendment right superfluous. The Sixth Amendment adds on the additional right to counsel in those situations where a defendant is post-arraignment and not subject to any custodial interrogation. Since the Sixth Amendment does add a right to counsel that does not exist in Miranda‘s Fifth Amendment right to counsel, in such situations, it is possible to assert that a “narrower” (in some instances) right to counsel exists in the Fith Amendment as well.

The fact that the Sixth Amendment right to counsel is broader, in some instances, than the Fifth Amendment Miranda right to counsel certainly does not prove that there is a Fifth Amendment right to counsel. Many arguments still exist that the Miranda Court was wrong in reading a right to counsel into the Fifth Amendment. But the above-mentioned factors indicate that the existance of a Sixth amendment right to counsel is not dispositive as to the absence of a Fifth Amendment right as well.

Picture of Ernesto Miranda courtesy of pbs.org.

Police Stop, Search & Confiscate Everything You Have…?

tenahaThe Chicago Tribune has just picked up on a story from over a month ago at mysanantonio.com. The Texas town of Tenaha is using a state forfeiture law that gives the police the right to seize any property used in a crime to bolster that department’s budget. Police officers have been using this law to stop cars traveling through their tiny (pop. about 1000) town and they have taken property from over 140 drivers between 2006 and 2008.

They apparently told people that if they didn’t sign their property over to the police, they would press charges against them for money laundering or other crimes. One waiver said “In exchange for (respondent) signing the agreed order of forfeiture, the Shelby County District Attorney’s Office agrees to reject charges of money laundering pending at this time…”

Cynically, the mayor of the town said that the seizures allowed a cash-poor city the means to add a second police car in a two-policeman town and help pay for a new police station… “It’s always helpful to have any kind of income to expand your police force.”

Without probable cause that a crime has taken place, and exigent circumstances to justify why the police must search the car without a warrant, police may not search a person’s car unless they have a “reasonable suspicion” that a person poses a danger to the police officer. And even then, they may only pat down a person or search in their immediate vicinity to the extent that such a search may help them find any weapons that could be used against them. They may not search outside of that scope searching for evidence of any crime however. Terry v. Ohio.

In some cases, the only “factual basis” for the drug or money laundering “charges” was the presence of larger sums of money in the car. And even for that, they would have had to search the car to find the motorists’ expensive property or cash without any “reasonable suspicion” of a threat to the police officer. In such a situation, that would be unconstitutional as well.

Normally, the remedy for the police’s violation of someone’s 4th Amendment rights would be suppression of any evidence obtained throught that violation. But in this case, since the individuals chose to sign over their property to the police, and no charges were filed, there is no evidence to suppress. Thus, the only remedy for a violation of these people’s Constitutional rights is by civil remedy, a §1983 discrimination case.

Thus, David Guillory, attorney for the so-far eight plaintiffs in the lawsuit against the town of Tenaha, filed a §1983 Complaint in District Court seeking compensation for the town’s violation of his clients’  Fourth Amendment Constitutional rights.

In an effort to prevent such abuses by towns in the future, the Texas Senate Criminal Justice Committe has recommended several changes to the forfeiture laws there (p.71), including a shift of the burden of proof to the government in order to seize assets:proposed-law-changes-texas

If the facts are proven to be as egregious as Mr. Guillory and the aforelinked articles suggest, I very much hope he is successful in his case against the town and that the State adopts more stringent rules to prevent abuses like these from happening in the future.

Picture Courtesy of Chicago Tribune

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