Civil Rights

National School Policing Debate Sparked by Student Arrests

Published on: April 24, 2012 | On behalf of Arnold & Smith, PLLC

The nation is again discussing whether some educators are too quick to call in the police when a student gets a little unruly in the classroom. Every educator and parent around the country, including those in North Carolina, should be paying attention to the recent case where children are being handcuffed and charged with serious criminal offenses for acting out in class.

A 6-year-old Georgia girl sparked the national debate. Post #1 criminal image 4.24.png Earlier this month, the 6-year-old received media attention when it was reported that after she had a temper tantrum at school, the police were called and she was handcuffed. According to reports, the girl refused to comply with her teacher’s rules and began throwing things off of the teacher’s desk. She sent the student to the principal’s office where she continued her tantrum. The student threw things off of the principal’s desk and turned over a small shelf that fell on the principal’s leg. The principal tried to calm her down, but she resisted. At that point, it was decided that the police should be called. The Milledgeville Police Department responded and placed the 6-year-old in the back of a police car and transported her to the police station. Police procedure required that anyone placed in the back of the patrol car be handcuffed.

A similar incident happened in New Mexico. A 13-year-old girl’s teacher called the police after she refused to stop talking to her friend and move to another desk. This incident prompted a civil rights attorney to file a class action suit in New Mexico on behalf of several hundred public school children arrested for petty offenses, such as cell phone use and defacing a history book. While a police presence in the school is sometimes necessary, many believe that overwhelmed teachers are beginning to use them as first responders instead of as a last resort.

Police Acquisition of Cell Phone Data Makes Attorneys Nervous

Published on: April 9, 2012 | On behalf of Arnold & Smith, PLLC

According to a recent report by the Charlotte Observer, some in North Carolina are concerned about how the police are gathering and using cell phone data. Because of the ease with which law enforcement officials can obtain cell phone information, those concerned about the protection of civil liberties believe that police should be more diligent about obtaining warrants for that information.

Cell phone data has proven useful to law enforcement. Post #1 criminal image 4.9.12.jpg The technology allows police to track not only the calls made by a cell phone user, but also the phone’s location, and by implication, the location of the cell phone’s user. The problem is that the police can obtain that information from the cell phone service provider without the knowledge or consent of the cell phone user. This lack of knowledge or consent prompted the ACLU to conduct a study of the process and procedures that law enforcement officials use to obtain cell phone records. The study revealed a disturbing trend.

The Charlotte-Mecklenburg Police Department told the ACLU that its policies require producing a search warrant issued by a judge prior to obtaining cell phone records. Before the judge will issue a search warrant, the officer applying for the warrant has to show probable cause.

Other police departments do not require its officers to obtain a search warrant prior to receiving cell phone records, giving some Charlotte criminal defense attorneys cause for concern. One attorney said, “The states and the federal government haven’t set up laws about what is still private and what is protected activity. The government hasn’t kept up with the technological advances. The police are getting to know all kinds of information that should be private.”

North Carolina Death Row Inmate Challenges Sentence under Racial Justice Act

Published on: February 2, 2012 | On behalf of Arnold & Smith, PLLC

Post #2 criminal image 2.2.12.jpg On Monday, January 30, 2012, arguments began in a Racial Justice Act case, a case in which a death row inmate is challenging his death sentence by attempting to demonstrate the presence of racial bias as a factor is his sentencing. According to a recent report by the Charlotte Observer, inmate Marcus Robinson, who has been on death row for over 17 years, is trying to convince a judge that under the Racial Justice Act his death sentence should be commuted to life in prison.

Robinson’s case is the first hearing held since the controversial Racial Justice Act was passed and since Governor Perdue vetoed a bill that would have repealed the law. Robinson was tried and convicted of the kidnapping and murder of Erik Tornblom. Prosecutors say that Robinson kidnapped the 17-year-old Tornblom, stole his car, and took $27.00 in cash before killing him with a gun-shot blast. Robinson was assisted by his accomplice, Roderick Williams. Williams was convicted and sentenced to life in prison while Robinson received the death penalty. Both Williams and Robinson are black. Tornblom was white.

As a result of the different races of the defendant and the victim, Robinson is attempting to argue that racial bias was a significant factor in jury selection and in sentencing. His attorney is planning to present statistical evidence of racial bias and disparities to demonstrate the presence of racial bias in Robinson’s trial. Robinson is free to challenge the presence of racial bias at any stage of the process. If Robinson can prove racial bias at any level, the Racial Justice Act provides that his sentence may be converted from a death sentence to a life sentence. His attorney will argue that during his 1994 trial, prosecutors struck black jurors from the jury venire at a much faster rate than they struck white juror. The end result was a jury made up of nine white jurors, one Native American juror, and two black jurors.

The evidence presented will likely consist of expert testimony from a study conducted by University of Michigan Law School researchers. The study focused on capital cases out of North Carolina. The researchers came to an interesting conclusion: “[Q]ualified black jurors – those not released for cause, such as their opposition to the death penalty – were struck by prosecutors nearly two times the rate as qualified white juror.”

The Racial Justice Act was passed in 2009 in response to three North Carolina inmates being released from prison after finding that their convictions were based on questionable evidence, faulty testimony, prosecutorial misconduct, and ineffective assistance of counsel. It gives judges the option of considering statistical evidence as proof of racial bias, which is not available under federal law, even though federal law allows inmates to challenge convictions and sentences based on racial bias.

Tainted Charlotte Officer Hit with New Allegations

Published on: January 6, 2012 | On behalf of Arnold & Smith, PLLC

Post #2 criminal image 1.6.12.png In a story that hits close to home at Arnold & Smith, PLLC, a recent report by the Charlotte Observer , discusses how troubled Charlotte-Mecklenburg Police Department Officer David Jones, III, is now facing new allegations from a suspect who has claimed that he was assaulted by the officer.

This newest allegation comes from Thomas Huminik. Huminik claims that in September of 2011, he was assaulted by Officer Jones after Jones responded to a call at a bank. Huminik and his wife were going through a bitter divorce and somehow ended up at the same bank at the same time. Once Huminik arrived at the bank, his wife called the police. Jones was one of the responding officers. Huminik claims that once he was outside of the bank, he was assaulted by Jones and another officer. His lawyer, Brad Smith, alleges that Huminik was punched, kicked, and thrown to the ground and none of those actions were justified. There is a surveillance video from the bank that shows the officers escorting Huminik out of the bank and seems to show that the officers are wrestling with Huminik.

As a result of that incident, Huminik was charged with assaulting an officer, communicating threats, and resisting arrest. However, all of those charges were recently dropped by the District Attorney. As it turns out Officer Jones is no stranger to controversy at the Charlotte-Mecklenburg Police Department. In December, he was suspended and recommended for termination after he assaulted a man named Rick McVicker who rear-ended Jones’ mother. Jones’ mother called him to assist her with the accident and once he arrived on the scene he got into a physical altercation with McVicker, which according to McVicker, resulted in Jones slamming his head into the ground.

North Carolina Protestors Charged with Burning Flag

Published on: January 4, 2012 | On behalf of Arnold & Smith, PLLC

Four men have been charged with careless use of fire after a flag burning incident during an Occupy Charlotte protest. According to the Charlotte Observer, two American flags were burned outside of the campsite in protest of what the protestors labeled “American greed.”

Police say that the suspects were charged because they failed to use a fire pit to burn the flags. Those arrested were 19-year-old Alex Tyler, 20-year-old Stephen Morris, 23-year-old Michael Behrle, and 28-year-old Jason Bargert. Bargert, was acting as the spokesperson for the Occupy Charlotte movement.

Tyler said that the purpose of the flag burning was to send sparks through the camp. “I’ve seen this group lose its activism and become lazy,” said Tyler, adding that the other men told him, “We’re going to give Occupy Charlotte a wake-up call.” Well, the protestors got their wish. The movement is now divided over the incident. Several members thought that burning the flag was unnecessary and disrespectful and at least 10 members of the movement have issued formal statements disassociating themselves from the flag-burning episode. There was even some debate about expelling the men from the group. As of yet, there has been no word of whether the four protestors are still a part of the Occupy Charlotte movement.

Occupy Charlotte is part of the nationwide Occupy movement that began with Occupy Wall Street in September. According to Occupy Wall Street’s official website, the purpose of the movement is to protest against banks and corporations that they believe have led to the economic collapse of the nation. Occupy Wall Street has led to several similar occupy movements across the country, including Occupy Charlotte. Occupy Charlotte is following in the footsteps of the pioneers on Wall Street.

Governor Perdue Exercises Veto Power on North Carolina Death Row Bill

Published on: December 20, 2011 | On behalf of Arnold & Smith, PLLC

According to the Charlotte Observer, Republican lawmakers recently introduced a bill in the North Carolina legislature that would have brought an end to a two-year death penalty law.

The current state of the North Carolina death penalty jurisprudence allows death row inmates to use racial statistics to demonstrate that there was racial bias in their death sentences. The new law proposed by Republican lawmakers would have prevented death row inmates from utilizing these racial statistics, but Governor Perdue vetoed that bill.

It is unlikely that this veto will be overridden. The Republicans need five Democrats to come to their aide to override the veto and garnering that support is likely impossible. Governor Perdue’s veto keeps the Racial Justice Act effective as North Carolina law, which permits the introduction of statistics to bolster an inmate’s claim that his or her death sentence was racially biased. It began with a Michigan study that shows that the killers of white victims are more than two times more likely to receive a death sentence than the killers of black victims.

The Michigan study was informed by the Baldus study, a famous study that was used as evidence in McClesky v. Kemp, 481 U.S. 279 (1987).

In that case, the defendant attempted to use racial statistics as evidence that the death penalty was racially biased. However, the Supreme Court disagreed with the defendant’s argument and said that discriminatory impact of the death penalty is not the same as discriminatory intent and intent is what is admissible as evidence. North Carolina’s death penalty law provides more protection than the Supreme Court’s federal law, which is permissible under the United States Constitution. Constitutional law provides the floor, not the ceiling, for protection of individual liberties.

Governor Perdue’s exercise of her veto power is probably going to cost her as she defends office next election. While she stressed that she remains in favor of the death penalty, she also noted that it is “important to ensure prosecutions and sentences are not tainted by racial prejudice.” Governor Perdue’s tough-on-crime stance took a hit when she vetoed this bill and she is going to have to do a lot of work to make sure that combats the criticism she will surely face as a result of her decision.

Dealing with the death penalty comes at the end of a long and arduous trial process. After two separate trials to first determine guilt and then determine the implementation of the death penalty, then comes the mandatory appellate process that can drag on for several more years.

North Carolina Moves to Protect Unborn Children

Published on: December 2, 2011 | On behalf of Arnold & Smith, PLLC

Criminal Post #2 image.bmp This month, on December 1, 2011, the North Carolina legislature passed the North Carolina Unborn Victims of Violence Act. WBTV reports that the new law will hold an individual criminally responsible for the death of an unborn baby which results from an attack on the mother. The law was sparked by the vicious murder of several pregnant women whose murderers were not ultimately held accountable for the death of the fetuses. According to an article in the Winston-Salem Journal, the law will be named after an unborn baby boy, Ethen, who died when his mother, Jenna Nielson, was murdered in 2007.

The passage of the law was also influenced by the murder of Cherika Adams and her unborn child by Carolina Panther’s player Rae Carruth. Carruth murdered Adams, his pregnant girlfriend, because he did not want to pay child support. Carruth hired a team of people to murder Adams as the two were supposed to leave for dinner and a movie. Under the law at that time, Carruth could only be charged with the murder of Adams, even though her fetus was viable at the time of the attack.

Assistant District Attorney Steve Ward said, “In the past the law had been that the fetus had to be born alive and then die before you could charge a homicide. Now you can charge a homicide from the mere fact that the fetus dies as an intentional act by the suspect in the case.” Proponents of the law believe that the measure is important because many potential victims are targeted specifically because they are with child. Rep. Dale Folwell, R-Forsyth, the chief sponsor of the law said, “This law is about murderers and thugs and how we’re going to treat them…If this prevents one woman from being murdered, it will be successful.”

North Carolina is now among thirty-six states with similar laws. The law, however, is not without its opponents. Critics say that the law has nothing to do with protecting the women, as its proponents claim, but its primary goal is to curb a woman’s right to an abortion. Opponents say that the law does little to prevent or restrict violence against women. Its real purpose is to establish that a fetus is a person for purposes of North Carolina penal law. Carey Pope, executive director of NARAL Pro-Choice North Carolina, said that “Once the law establishes a fetus as a full, living person throughout all nine months, as the law does, it becomes easier down the road to strip away abortion rights.”

Is Police Misconduct Becoming an Epidemic in the United States?

Published on: August 15, 2011 | On behalf of Arnold & Smith, PLLC

Police car.jpg On August 5, 2011, five current and former New Orleans police officers were convicted by a federal jury of various charges related to the shooting deaths of two unarmed men on the Danziger Bridge amidst the chaos surrounding Hurricane Katrina. The five men had been charged with twenty-five counts including the following: civil rights violations, deprivation of civil rights, obstruction of justice, and false prosecution. Four officers were found guilty of the shootings, while the fifth was found guilty of orchestrating the cover-up. The only counts the jury did not convict the officers of were the murder charges.

Nearly six years ago, Hurricane Katrina struck and decimated New Orleans. In the aftermath, chaos, lawlessness and looting abounded. While much of the city was still underwater, a radio call supposedly sounded reporting that police had been fired upon and that the shooters were headed toward the Danziger Bridge. This call was later shown to be false. A dozen officer responded to the call, and opened fire on the civilians.

As a result of the incident, seventeen year old James Brisette was shot in the back of the head, forty year old Ronald Madison was shot in the back. Also, a group of four unarmed survivors lay on the concrete bridge, crying and praying while officers fired their rifles at them at close range. In an attempt to cover up their misdeeds, the officers also attempted to frame two other innocent men who happened to be on the bridge that day by falsifying evidence, fabricating witnesses and planting a handgun.

These officers will be sentenced on these charges in the months to come, but they all face the possibility of life sentences for their convictions of a violation of civil rights which led to death.

While most people might chalk these officers’ behavior up to the post-Katrina chaos or the long standing corruption of the New Orleans police, unfortunately police misconduct is not that rare. A 2010 statistical report shows that there were almost 5,000 unique reports of police misconduct involving over 6,000 law enforcement officers and almost 7,000 victims. Additionally, this country spent $346,512,800 on misconduct-related civil judgments, settlements, court costs, and attorney fees, and this number does not include those settlements that were sealed.

Woman Files Lawsuit Against Stallings Police Department

Published on: August 4, 2011 | On behalf of Arnold & Smith, PLLC

On July 21, 2011, Dawn Whitlock filed suit against the Stallings police department and two of its officers for violating her civil rights when she was arrested almost three years ago for disorderly conduct and resisting an officer. In her complaint she alleges that Officers Tahitiana Munoz and Jeffrey Weatherman used excessive, unreasonable and unjustified force that resulted in physical injuries which required surgery.

On July 27, 2008, Officers Munoz and Weatherman responded to a 911 call from Robert Whitmore’s home. Mr. Whitmore told officers that James Polk, Whitlock’s boyfriend, had threatened to shoot him. Ms. Whitlock approached the officers and Mr. Whitmore as he was telling officers his story. Officer Munoz told Ms. Whitlock to get Mr. Polk. As Ms. Whitlock was returning to the house to do as the officer requested, Mr. Whitmore’s wife started an argument with Ms. Whitlock. Officer Weatherman began to yell at Ms. Whitlock, telling her to hurry up and threatening to arrest her. Ms. Whitlock then told Officer Weatherman to “go to hell,” at which point the Officers tackled Ms. Whitlock in her own yard.

Ms. Whitlock told the two officers she had recently had back surgery, and that Officer Weatherman was hurting her by lying on her back. As a result of the arrest, Ms. Whitlock’s back stimulation implant was “catastrophically damaged” which required her to undergo extensive surgery to remove the device and implant a new one.

Ms. Whitlock was tried in district court on the charges of disorderly conduct and resisting a public officer. At the trial, Ms. Whitlock was acquitted of the disorderly conduct charge but convicted of resisting a public officer.

Mecklenburg County Police Department to Cease Use of Tasers for Up to 45 Days

Published on: July 29, 2011 | On behalf of Arnold & Smith, PLLC

On July 21, 2011, Lareko Williams was tased by police after they say he was found beating and choking a woman at a Lynx light rail station in Charlotte. An hour later, Mr. Williams was pronounced dead. This death comes one day after a Charlotte federal jury awarded the family of Darryl Wayne Turner $10 million for his death after being tased by the CMPD. CMPD has now suspended their use of tasers for up to 45 days in order to make sure its tasers are working properly and to independently test the taser that caused Mr. Williams’ death.

Tasers are viewed as beneficial to those in law enforcement as a “non-lethal” option to subdue suspects. Many argue that tasers are much safer for suspects than other methods to subdue suspects such as a baton or other physical force. They also argue that tasers provide an alternative to lethal force when an officer has no backup. However, their use has become increasingly controversial in light of these serious injuries and deaths.

Tasers work in two different ways. One is called a “drive stun” where the taser is held directly to the subject without firing projectiles. The intent here is to cause pain, and thus this method is referred to as a pain compliance technique. Basically it is designed to cause pain in order to bring the subject into compliance, but on some subjects, such as those who are on certain drugs, the pain compliance technique does not work and other methods are needed to subdue an individual.

The other method of use is tasing an individual through shooting two electrode projectiles from the gun which are pointed, to ensure the projectiles can penetrate clothing and skin, and barbed, to ensure the electrodes cannot be removed. This method of use is not a pain compliance technique. Instead, the electrodes inject up to 50,000 volts into the body. All of this electricity interrupts the electric impulses that control the body and basically incapacitate a person. This use of the taser is effective even on those people on drugs that prevent them from feeling pain.