Police Misconduct & Civil Rights

Police officers generally have broad powers to carry out their duties. The Constitution and other laws, however, place limits on how far police can go in trying to enforce the law. As the videotaped beating of motorist Rodney King, in Los Angeles' and several recent cases in – to include the recent indictment of a Maryland police officer for viciously assaulting an innocent citizen with his service pistol, police officers sometimes go too far, violating the rights of citizens. When this happens, the victim of the misconduct may have recourse through federal and state laws. A primary purpose of the nation's civil rights laws is to protect citizens from abuses by government, including police misconduct. Civil rights laws allow attorney fees and compensatory and punitive damages as incentives for injured parties to enforce their rights.
Overcoming Immunity

Being stopped and questioned by police in connection with a crime is an unsettling experience for most anyone. As long as the officer is performing his job properly, however, there is no violation of a suspect's rights. In fact, police are immune from suit for the performance of their jobs unless willful, unreasonable conduct is demonstrated. Mere negligence, the failure to exercise due care, is not enough to create liability. Immunity therefore means that in the typical police-suspect interaction, the suspect cannot sue the police. Civil rights remedies come into play for willful police conduct that violates an individual's constitutional rights.
Civil Rights Laws and Police Misconduct

A statute known as Section 1983 is the primary civil rights law victims of police misconduct rely upon. This law was originally passed as part of the Civil Rights Act of 1871, which was intended to curb oppressive conduct by government and private individuals participating in vigilante groups, such as the Ku Klux Klan. It is now called Section 1983 because that is where the law has been published, within Title 42, of the United States Code. Section 1983 makes it unlawful for anyone acting under the authority of state law to deprive another person of his or her rights under the Constitution or federal law. The most common claims brought against police officers are false arrest (or false imprisonment), malicious prosecution, and use of excessive or unreasonable force.
False Arrest

The claim that is most often asserted against police is false arrest. Persons bringing this claim assert that police violated their Fourth Amendment right against unreasonable seizure. If the officer had probable cause to believe the individual had committed a crime, the arrest is reasonable and the Fourth Amendment has not been violated. Police can arrest without a warrant for a felony or misdemeanor committed in their presence. (Some states also allow warrantless arrests for misdemeanor domestic assaults not committed in the officer's presence.) Even if the information the officer relied upon later turns out to be false, the officer is not liable if he believed it was accurate at the time of the arrest. To prevail on a false arrest claim, the victim must show that the arresting officer lacked probable cause, that is, facts sufficient to cause a reasonable person to believe that a crime had been committed.

Malicious Prosecution

A malicious prosecution claim asserts that the officer wrongly deprived the victim of the Fourteenth Amendment right to liberty. To win this type of claim, the victim must show four things: 1) the defendant police officer commenced a criminal proceeding; 2) the proceeding ended in the victim's favor (that is, no conviction); 3) there was no probable cause; and 4) the proceeding was brought with malice toward the victim. As with false arrest, this claim will fail if the officer had probable cause to initiate criminal proceedings.

Excessive Force

Excessive force claims receive the most publicity, perhaps because the results of excessive force seem the most outrageous, involving serious physical injury or death. Whether the officer's use of force was reasonable depends on the surrounding facts and circumstances. The officer's intentions or motivations are not controlling. If the amount of force was reasonable, it doesn't matter that the officer's intentions were bad. But the reverse is also true: if the officer had good intentions, but used unreasonable force, the excessive force claim will not be dismissed.

Failure to Intervene

Officers have a duty to protect individuals from constitutional violations by fellow officers. Therefore, an officer who witnesses a fellow officer violating an individual's constitutional rights may be liable to the victim for failing to intervene.

The Qualified Immunity Defense

Defense attorneys representing a police officer for any of these claims will raise a defense of qualified immunity. This defense exists to prevent the fear of legal prosecution from inhibiting a police officer from enforcing the law. The defense will defeat a claim against the officer if the officer's conduct did not violate a clearly established constitutional or statutory right. In other words, the specific acts the officer prevented the individual from engaging in must be legally protected, otherwise there is no civil rights violation. In order to win a civil rights claim, an individual bringing a police misconduct claim must prove that the actions of the police exceeded reasonable bounds, infringed the victim's constitutional rights, and produced some injury or damages to the victim.
Police Misconduct: If You Have Been Affect

Civil rights claims are an important part of our legal system, providing a balance between the duty of law enforcement to uphold the laws, and the rights of individuals to be free from police misconduct. Yet cases against police officers can be difficult. Officers may be immune from suit, even though an individual feels he or she was mistreated. Claims against police departments can also be expensive to bring because a lot of evidence must be secured, including records, statements of police, statements of witnesses, and various other documentation, to prove the misconduct.
The evidence supporting your claim is the most important element in a police misconduct suit. If you feel you have been the victim of police misconduct, contact our office promptly at 301-218-9400 so that we can act to protect your rights. If anyone in the area may have taken video, such film is critical to success. Many successful prosecutions of police misconduct arise from video evidence. Take photographs of any injuries or damage caused by the police, and set aside clothing or other objects that was torn or stained with blood from the incident. Try to get the names and addresses or telephone numbers of anyone who may have witnessed the incident. Also, write down exactly what happened as soon as you can, so that you don't forget important details.

WHEN IS A GIFT NOT A GIFT?

By Evann O'Donnell, Esq.

When you receive a gift, do you expect to give it back?

Generally, a gift is given without expectation of reciprocation or further action on your part- you could throw it out, sell it, or even re-gift it (hopefully not back to the same person!).  A contract, on the other hand, is a bargain for exchange:  you trade a good or service for something of similar value.  

But what if you receive a gift… that has a condition?  A conditional gift is one that is subject to or dependent on a condition.  Maryland common law holds that conditional gifts must be honored, but thankfully these gifts-with-strings-attached do not happen often in our culture.  In order  for the condition to be enforceable in a court of law, it must be clearly expressed  or known prior to transferring the gift.  If you accept the gift knowing the condition, you have accepted the condition as well.  An example of an expressed conditional gift could be:

1. “I’m giving you this car on the condition that you pass your first semester of college.”
2. “My estate will transfer to you in the event that the Detroit Tigers win the World Series by 2020.  If they do not, it will go to your sister.”
3. “I leave Melissa my very best sewing machine, on the condition that she sews one new quilt a year for  five years.  If she does not, it will transfer to Jake.”

The “expression” can be either written or oral, though it is much easier to enforce (or protect) a conditional gift when the condition is in writing and signed by the giver.  

But what about the second way a condition is given- where it is simply “known”?  This is very rare in our culture.  The most common (and frankly, one of the only well-known) implied conditions is the engagement ring.  When you accept an engagement ring, you have agreed to the condition to marry the person who proposed.  Maryland has found that this amounts to an implied conditional gift.  And so if the recipient of the engagement ring breaks off the engagement... that’s right, in Maryland you have to return the ring!  

But the important element of the conditional gift is that both people know of the condition, whether it is simply known or stated outright, prior to the gift.  When a condition is not stated, but is simply known, you may have a much more difficult time proving that the condition was known if the receiver of the gift later fails the condition and refuses to return the gift, resulting in large legal fees and major headaches.  For instance, what if you believe the implied condition of the gift you gave is known in your religion- and that of the receiver of the gift- but they later claim they never heard of that particular religious teaching? You may need to hire a religious scholar to testify at your trial to convince the court that the condition is so well known in your religious community that the receiver could not possibly be ignorant.  As you can imagine, it is difficult to prove what someone may or may not know- especially where they may have the motive to lie in order to claim a conditional gift was unconditional.  Other examples of implied conditional gifts:

1. Sarah’s family has a generations-long tradition that everyone in the family follows: you are given a car when you turn 16, but if you ever miss the Sunday family meal, it is revoked.  Sarah has seen several family members miss the meal and then lose their car.  Sarah is given the keys to a new car at age 16, but no mention of the well-known condition is necessary.
2. Andre is a part of a religious group with a well-known tenet that wedding gifts are conditioned on the marital success-- meaning, you never divorce.  Should the parties divorce, all gifts are revoked.  Andre has been raised in this religion since birth and has read the religious texts that mention this tenet.  

Once you have satisfied the condition, whether implied or expressed, the giver cannot revoke the gift later.  The condition is the only obstacle to acquiring your gift.  So to go back to the engagement ring example: if you marry, but later divorce, do you have to return the ring?  No: you have satisfied the implied condition: to marry.  Just because you may later disappoint the giver does not mean they can demand a return of a gift.

If you have questions about a gift that you believe may be conditional, do not hesitate to call our office at 301-218-9400.  In an increasingly diverse society - with different religions such as Hinduism introducing new customs of gift giving to our culture - we have had the opportunity to address the issue of dowry (marriage related gifts) at trial. In doing so we have used expert testimony to ensure our clients prevail. We can assist in determining whether a gift is conditional, or help you put your conditions into writing to prevent misunderstandings and litigation later.  Preparation can ensure your wishes are carried out exactly as you hoped.  

Free Speech In the Aftermath of the Charlie Hebdo Massacre

Daily Telegraph; by Christopher Booker

As the dust begins to settle on those recent horrendous events in Paris, a clearer sense of perspective is starting to creep in round the edges. The Pope suggests that those who are too provocative to Islam can expect “a punch”. And even a co-founder of Charlie Hebdo says that its murdered editor’s urge to provoke had “dragged the team to its death”.
As the original editor of Private Eye, who over the years has probably contributed as many words as anyone to its “satirical” pages, I’m afraid that I have looked askance at much of what has been said and written about these events in recent days.
When David Cameron announced on Twitter that he was joining that vast rally in Paris “to celebrate the values of Charlie Hebdo”, one wondered whether he had even previously heard of that little magazine, let alone looked at its pages. Did he really wish to celebrate crude cartoons showing a naked Mohammed with a star coming out of his bottom, captioned: “A star is born”? Or another, captioned “The film that embraces all the Muslim world”, showing a naked Prophet holding a camera to his bottom, saying: “And my ass? You love my ass”?
Did our Prime Minister really want to applaud a picture of the Pope, scantily clad as a Rio prostitute, saying: “Ready for anything to win some clients?” Even these are only among the images available online. A friend living in France tells me of others even more dubious, showing Jesus masturbating, or the Virgin Mary engaging in sexual acts.
If this is meant to be “satire” that only someone without “a sense of humour” would find offensive, I suppose some might point to that strain of British cartooning exemplified by Gerald Scarfe. For decades, he has repeated images of some powerful man exposing his bottom to a lesser figure trying to kiss it. At different times, these might have represented Harold Wilson grovelling behind President Lyndon Johnson, or Tony Blair likewise behind President Bush, or David Cameron with Rupert Murdoch.

How ironic, one thought, that this mass demonstration in favour of “the freedom of the press” should take place in a country whose “Ministry of Culture” has lately detailed the huge state subsidies given to France’s leading newspapers, to help keep its press more cowed and tightly controlled than any west of Russia.
In a time when there is such pressure to prevent people saying things that do not conform with group-think – when every kind of “political correctness” rules; when Christians are arrested for quoting the Bible in the street, for fear of giving “offence to minorities”; when boarding-house owners are prosecuted for not wishing to let rooms to gay couples; when there are calls for “climate change deniers” to be sacked or put on trial; when judges repeatedly threaten people with imprisonment for trying to expose the travesties of justice in their “child protection” system – who really knows what “freedom of speech” is any longer?
There has been no better comment on the clouds of humbug recently billowing in all directions than the admission of BBC employees that they are under an edict from apparatchiks on high that they must not on any account describe to their audiences the contents of any of those Charlie Hebdo cartoons.
It is the kind of thing that made me want to put a collective photo-bubble on those shots of the politicians leading two million people through the streets, all in grey unanimity, intoning the words of the old song, “Clap hands, here comes Charlie”. They didn’t really have the faintest idea what they were talking about.

The Law of Visitation Rights Grandparents, Siblings & Domestic Partners

Often third parties such as grandparents, stepparents, and domestic partners of a biological parent have established a relationship with a minor child and desire to continue that relationship through regular contact with the child. The standards considered by the court in determining whether to award third parties visitation access to a minor child are discussed below. Essentially, the natural parent's proposed schedule of access is deemed to be presumptively in the minor child's best interest, and a third party has to show either parental unfitness or exceptional circumstances warranting visitation or custody rights exist. If the third party demonstrates either parental unfitness or exceptional circumstances, then the court will consider what schedule would be in the minor child's best interest.

FL § 9‑102 provides that an equity court may consider a petition for reasonable visitation of a grandchild by a grandparent; and if the court finds it to be in the best interests of the child, grant visitation rights to a grandparent. The statute applies to intact family situations also, there is no presumption in favor of grandparent visitation. In Koshko v. Haining, 398 Md. 404, 921 A.2d 171 (2007), the Court of Appeals held that “there must be a finding of either parental unfitness or exceptional circumstances demonstrating the current or future detriment to the child, absent visitation from his or her grandparents, as a prerequisite to application of the best interests analysis. Accordingly, we overrule the portions of Fairbanks, Maner, Beckman, Herrick, and Wolinski that are inconsistent with this holding.” The Court of Appeals in Koshko noted in footnote 23 that “At any evidentiary hearing on a petition, the petitioners must produce evidence to establish their prima facie case on the issue of either parental unfitness or exceptional circumstances as well as evidence sufficient to tip the scales of the best interests balancing test in their favor.” In Janice K. v. Margaret
K., 404 Md. 661, 948 A.2d 73 (2008), the Court of Appeals held that Maryland does not recognize "de facto" parenthood status and held that in order to overcome the "constitutional rights of a legal parent to govern the care, custody, and control of his or her child, even a person who would qualify as a de facto parent, who seeks visitation or custody, must demonstrate exceptional circumstances" or parental unfitness as a prerequisite to the court's consideration of the best interests of the child.

A natural parent’s proposed schedule of visitation is entitled to a rebuttable presumption that it is in the best interests of the child. Wolinski v. Browneller, 115 Md. App. 285, 693 A.2d 30 (1997). In Brice v. Brice, 133 Md. App. 302, 754 A.2d 1132 (2000), the Court of Special Appeals reversed a trial court’s order establishing a visitation schedule between the paternal grandparents and the child that was against the mother’s wishes. Under the U.S. Supreme Court’s decision in Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L.Ed. 49 (2000), application of FL § 9-102 violated mother’s constitutional due process right, i.e. her fundamental right to rear her child, where there was no showing she was unfit and mother did not oppose some visitation with the paternal grandparents. The appellate court did not invalidate the Maryland statute. The Court of Special Appeals, in In re: Tamara R., 136 Md. App. 236, 764 A.2d 844 (2000), analyzed Troxel v. Granville and applied the principles to a sibling visitation matter. “We conclude that the state’s interest in the protection of a minor child who has been removed from her parent’s care is sufficiently compelling to justify overriding her parent’s opposition to visitation with her sibling, if there is evidence that denial of sibling visitation also would harm the sibling whom the separated child seeks to visit.” In Herrick v. Wain, 154 Md.App. 222, 838 A.2d 1263 (2003), the Court of Special Appeals affirmed a Circuit Court for Montgomery County Order granting maternal grandmother visitation; trial court had considered surviving father’s concerns and the evidence rebutted presumption that father’s preferred schedule was in child’s best interest. See also Frase v. Barnhart, et. al., 379 Md. 100, 840 A.2d 114 (2003).
Both parents are necessary parties to the third party's action, pursuant to Maryland Rule 2‑211.

IF YOU ARE STOPPED FOR QUESTIONING

IF YOU ARE STOPPED FOR QUESTIONING
Stay calm. Don't run. Don't argue, resist or obstruct the police, even if you are innocent or police are violating your rights. Keep your hands where police can see them.
Ask if you are free to leave. If the officer says yes, calmly and silently walk away. If you are under arrest, you have a right to know why.
You have the right to remain silent and cannot be punished for refusing to answer questions. If you wish to remain silent, tell the officer out loud. In some states, you must give your name if asked to identify yourself.
You do not have to consent to a search of yourself or your belongings, but police may "pat down" your clothing if they suspect a weapon. You should not physically resist, but you have the right to refuse consent for any further search. If you do consent, it can affect you later in court.

IF YOU ARE STOPPED IN YOUR CAR
Stop the car in a safe place as quickly as possible. Turn off the car, turn on the internal light, open the window part way and place your hands on the wheel.
Upon request, show police your driver's license, registration and proof of insurance.
If an officer or immigration agent asks to look inside your car, you can refuse to consent to the search. But if police believe your car contains evidence of a crime, your car can be searched without your consent.
Both drivers and passengers have the right to remain silent. If you are a passenger, you can ask if you are free to leave. If the officer says yes, sit silently or calmly leave. Even if the officer says no, you have the right to remain silent.

IF YOU ARE QUESTIONED ABOUT YOUR IMMIGRATION STATUS
You have the right to remain silent and do not have to discuss your immigration or citizenship status with police, immigration agents or any other officials. You do not have to answer questions about where you were born, whether you are a U.S. citizen, or how you entered the country. (Separate rules apply at international borders and airports, and for individuals on certain nonimmigrant visas, including tourists and business travelers.)
If you are not a U.S. citizen and an immigration agent requests your immigration papers, you must show them if you have them with you. If you are over 18, carry your immigration documents with you at all times. If you do not have immigration papers, say you want to remain silent.
Do not lie about your citizenship status or provide fake documents.

IF THE POLICE OR IMMIGRATION AGENTS COME TO YOUR HOME
If the police or immigration agents come to your home, you do not have to let them in unless they have certain kinds of warrants.
Ask the officer to slip the warrant under the door or hold it up to the window so you can inspect it. A search warrant allows police to enter the address listed on the warrant, but officers can only search the areas and for the items listed. An arrest warrant allows police to enter the home of the person listed on the warrant if they believe the person is inside. A warrant of removal/deportation (ICE warrant) does not allow officers to enter a home without consent.
Even if officers have a warrant, you have the right to remain silent. If you choose to speak to the officers, step outside and close the door.

IF YOU ARE CONTACTED BY THE FBI
If an FBI agent comes to your home or workplace, you do not have to answer any questions. Tell the agent you want to speak to a lawyer first.
If you are asked to meet with FBI agents for an interview, you have the right to say you do not want to be interviewed. If you agree to an interview, have a lawyer present. You do not have to answer any questions you feel uncomfortable answering, and can say that you will only answer questions on a specific topic.

IF YOU ARE ARRESTED
Do not resist arrest, even if you believe the arrest is unfair.
Say you wish to remain silent and ask for a lawyer immediately. Don't give any explanations or excuses. If you can't pay for a lawyer, you have the right to a free one. Don't say anything, sign anything or make any decisions without a lawyer.
You have the right to make a local phone call. The police cannot listen if you call a lawyer.
Prepare yourself and your family in case you are arrested. Memorize the phone numbers of your family and your lawyer. Make emergency plans if you have children or take medication.
Special considerations for non-citizens:
- Ask your lawyer about the effect of a criminal conviction or plea on your immigration status.
- Don't discuss your immigration status with anyone but your lawyer.
- While you are in jail, an immigration agent may visit you. Do not answer questions or sign anything before talking to a lawyer.
- Read all papers fully. If you do not understand or cannot read the papers, tell the officer you need an interpreter.

IF YOU ARE TAKEN INTO IMMIGRATION (OR "ICE") CUSTODY
You have the right to a lawyer, but the government does not have to provide one for you. If you do not have a lawyer, ask for a list of free or low-cost legal services.
You have the right to contact your consulate or have an officer inform the consulate of your arrest.
Tell the ICE agent you wish to remain silent. Do not discuss your immigration status with anyone but your lawyer.
Do not sign anything, such as a voluntary departure or stipulated removal, without talking to a lawyer. If you sign, you may be giving up your opportunity to try to stay in the U.S.
Remember your immigration number ("A" number) and give it to your family. It will help family members locate you.
Keep a copy of your immigration documents with someone you trust.

IF YOU FEEL YOUR RIGHTS HAVE BEEN VIOLATED
Remember: police misconduct cannot be challenged on the street. Don't physically resist officers or threaten to file a complaint.
Write down everything you remember, including officers' badge and patrol car numbers, which agency the officers were from, and any other details. Get contact information for witnesses. If you are injured, take photographs of your injuries (but seek medical attention first).
File a written complaint with the agency's internal affairs division or civilian complaint board. In most cases, you can file a complaint anonymously if you wish

  

Annulments

Even though it makes headlines when celebrities get an annulment of their marriages based on fraud or inability to perform, annulments are relatively rare.

Fraud is usually the basis for an annulment. Examples are failure to disclose a previous marriage, criminal record, infectious disease, the inability to have children, or the desire not to have children. Annulments have also been granted where a spouse mistakenly believes they have been divorced or widowed when in fact they are not, or the spouses are too closely related, or one party is underage, and did not obtain appropriate parental consent.

In Maryland, a marriage which qualifies as one suitable for annulment means there is some legal defect that invalidates the marriage such as a spouse that is married to someone else at the time of the second marriage or the parties are blood relatives or one is underage. You do not need to file a petition for an annulment with the court in the case of a void marriage although it may be wise to do so anyway so that you have a court order of annulment.

A voidable marriage, on the other hand, can only be annulled by filing a petition for annulment with the court and having a judge declare the marriage not to have happened. Examples of voidable marriages are sham marriages or joke marriages where the parties did not really intend to marry.  You can also ask the court for an annulment if you or your spouse were incapacitated at the time of marriage, as in insanity, intoxication, fraud or duress. Fraud can be hard to prove to a judge especially when the annulment is contested, so most people opt for a divorce instead. A divorce says the marriage is over. An annulment says it never happened.

Caribbean Glory

Caribbean Glory; a ceremony honoring our Carribbean brethren who fought a valiant effort in WWII. Dominican and British West Indian Soldiers of yesteryear sought to preserve our today with their honor, courage, and commitment to King & Country.

Caribbean Glory on YouTube

Please enjoy this along with many other related videos on our YouTube channel

(You can read more on the service and sacrifice of  the the British West Indian Military in my book "For King & Country", available on amazon.com)

~GJC