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December 29, 2015

What is Malicious Prosecution?

file0001305562393.jpgWhen someone is wrongfully charged and prosecuted for a crime, what are the consequences? We're fortunate to live in a nation that provides extensive protection for our personal liberties. Where malicious prosecution is concerned, there are two particulars that you should know about:

  • The Fourth Amendment to the United States Constitution protects you and your property from unreasonable seizure, meaning without a warrant. It also states that a warrant will not be issued without probable cause.

  • The Fourteenth Amendment to the United States Constitution states that you have a right to your life, your liberty, and your property, and none of those things can be taken from you without due process.

If action was taken against you without probable cause and with the intent to cause personal injury, we refer to that as "malice" in legal terms. At the very core of this issue is the other person's desire to take away your liberty, which is illegal, according to the fourteenth amendment.

This type of situation can cause a wide variety of complications for the person on the receiving end. You'll probably miss time from work, incur legal fees, and experience a variety of other financial consequences. You may also experience problems that have nothing to do with your finances, such as harm to your personal reputation and strain on your relationships with your loved ones.

If you have found yourself in this situation, you should know that you have options for recourse. You don't have to simply accept the damage that has been done to your personal and professional life. Speak with an attorney as soon as possible.

Malicious Prosecution as it Relates to the Prosecutor of Your Case

When someone has been incorrectly accused of committing a crime, it's natural for that person to feel hurt and angry. For most people in this situation, it's not enough to know that the arrest and prosecution records have been wiped clean. One very frequently asked question is "can I sue the prosecution for filing charges against me?"

The answer to that question depends heavily on the details of your specific case. As a general rule, however, filing suit against a district attorney (or similar government attorney) is an extremely challenging task. That's not to say it's an insurmountable task, but the lawyer in question would have to have committed a very egregious offense.

Malicious Prosecution Can Be a Form of Police Misconduct

As soon as a police officer charges or arrests you for committing a crime, prosecution has been initiated. It's extremely important that you understand this, for a number of reasons. You should also know your rights if you do find yourself in this situation.

First and foremost, know that if you ask to leave and you are not permitted to do so, then you have been arrested. This is true even if you are not actually being charged with a crime. If you are detained without good reason (which should be very clearly explained to you), you may be experiencing what is known as false imprisonment. While false imprisonment is a separate issue, the underlying concept does support your malicious prosecution case.

Again, prosecution begins as soon as you are arrested; if that prosecution began without justifiable cause, you may be able to argue that you have been maliciously prosecuted.

Malicious prosecution involving law enforcement might also fall under Federal Civil Rights 42 U.S.C. 1983, which states that anyone who deprives you of your rights and privileges as a Unites States citizen will be held liable for the damage that is done to your personal life.

You can find options for recourse in state court, as well. For example, you may have a valid state court claim if a store owner or security guard has taken action against you for theft in the absence of probable cause and with the purpose of harming you in some way. Another state court action that you should be aware of in this situation is Abuse of Process, because it often goes hand in hand with malicious prosecution cases.

The fact that you have successfully defended yourself against criminal charges does not automatically mean that you have been maliciously prosecuted. If there was even a remotely viable reason for officers and the prosecution to believe that you had committed the crime, you will not be successful in bringing a civil suit against them.

If you believe that charges have been brought against you with the purpose of intentionally harming you, it's best to speak with an attorney as soon as possible. Contact the skilled and proven team at Coxwell & Associates, PLLC at (601) 948-1600 for a free initial consultation.

Disclaimer: This blog is intended as general information purposes only, and is not a substitute for legal advice. Anyone with a legal problem should consult a lawyer immediately.

November 10, 2015

What Constitutes Police Brutality (and Other Forms of Police Misconduct)?

police brutality.jpgAlthough police brutality is an age old problem, it has only been in recent years that we've seen such extensive media coverage surrounding the issue. There have been a number of notorious cases, but most of those have been extreme and not an accurate representation of the most common types of police brutality that occur. This type of incident doesn't necessarily need to have such a severe outcome in order to be valid grounds for a lawsuit. If there have been any injuries or emotional harm sustained as a result of an officer's behavior, then the victim should speak with an attorney right away.

The phrase "police brutality" is essentially a blanket term that refers to an unnecessary and/or excessive use of force by an officer of the law. That's all relative, however. What is excessive in one situation may be warranted in other, and not all force is necessarily physical or violent. Over-the-top verbal attacks or psychological duress by an officer may also qualify, depending on the circumstances. Because this isn't something that can be quantified, the measure of what exactly constitutes "police brutality" is truly subjective in nature.

Excessive use of force is only one type of police misconduct. False arrest is also a very common claim, asserting that an officer made an arrest in the absence of a warrant or probable cause. This is a violation of the Fourth Amendment, which safeguards citizens from unreasonable seizure.

Other forms of Police Misconduct most often include behaviors that have more of a criminal connotation, such as:

  • Corruption (typically, involvement in the drug trade or sale of stolen property)
  • Abuse of Authority
  • Extortion or Bribery
  • Selective Enforcement
  • Theft, Burglary, or Shakedowns
  • Fixing (including that involving traffic citations)

Essentially, any deliberate behavior that results in a miscarriage of justice should be discussed with an attorney. Police officers are not exempt from the very laws that they enforce.

If you feel that you have been the victim of police brutality or false arrest, our team of experienced lawyers will be happy to discuss your options with you.

Contact the skilled and proven team at Coxwell & Associates, PLLC at (601) 948-1600 for a free case consultation.

Disclaimer: This blog is intended as general information purposes only, and is not a substitute for legal advice. Anyone with a legal problem should consult a lawyer immediately.

July 31, 2013

Using Federal Law to Stand Up to School Bullies in Mississippi

bully.jpgAs summer winds down and the start of yet another school year is around the corner, I thought it would be a good idea to blog about school bullying and what can be done to protect your child. Bullying in school is nothing new. I can vividly remember an ABC Afternoon Special entitled "Psst Hammerman's After You!" in which a smaller student was being bullied by a larger student. (As an aside, it seems like my generation who went to school from the mid 70's through mid 80's learned all of our valuable life lessons from ABC's Afternoon Specials. We learned about sex, drugs, divorce, you name it. Our parents got off easy. Where are the Afternoon Specials now that I'm a Dad!. I digress). In the end, the smaller student stands up to Hammerman, gets his nose bloodied but earns the respect of the bully and is left alone. Well, we all know that doesn't happen in real life.

Recently the nation has been besieged by horrible stories of bullying, some of which end tragically. Take the lesbian student in Mississippi, Destin, who was allegedly bullied by not only the students but teachers and faculty as well. Destin ended up leaving school. My heart dropped when I read the story of beautiful little Phoebe Prince who took her own life after being constantly bullied by "mean girls" at school. Reportedly the school's teachers and administration was well aware of the bullying but did not take steps to end it.

There are other stories. You may have even been bullied as a kid. I know I was. I talk to my son about it as well. But what can we as parents do if our child is being bullied?

The first thing you need to do is recognize the difference between simple teasing and bullying. As we all know, children (and adults) will tease one another from time to time. In the 80's if you were a guy and didn't wear a Member's Only jacket with a Polo or Izod shirt underneath, Levi's (or similarly "cool" jeans") and Addidas/Fila/Nikes/Converse/Reeboks then you were opening yourself up to teasing. I'll never forget when my Mom bought me a "Braggin' Dragon" shirt. Dang thing had a freakin' dragon breathing fire right where the Izod alligator normally resided. You try wearing that around my school and think you won't get teased a little.

As a parent, we don't like anyone messing with our kid but we need to teach our kids to deal with something like fashion faux paux on their own.

Mississippi enacted an "Anti Bullying" law in 2010. In fact, every state except Montana now has similar legislation. Bullying is defined by Mississippi law (37-11-67) as "any pattern of gestures or written, electronic or verbal communications, or any physical act or any threatening communication, or any act reasonably perceived as being motivated by any actual or perceived differentiating characteristic, that takes place on school property, at any school-sponsored function, or on a school bus, and that:

(a) Places a student or school employee in actual and reasonable fear of harm to his or her person or damage to his or her property; or

(b) Creates or is certain to create a hostile environment by substantially interfering with or impairing a student's educational performance, opportunities or benefits. For purposes of this section, "hostile environment" means that the victim subjectively views the conduct as bullying or harassing behavior and the conduct is objectively severe or pervasive enough that a reasonable person would agree that it is bullying or harassing behavior."

If you fee that your child is being bullied to the extent they are in danger of physical harm then you need to act ASAP. You obviously need to address the teacher(s) but the most important persons to advise are the Principle (or whomever is over students) and the Superintendent. I would suggest setting up a meeting and also sending a follow up letter expressing your concerns. Much of today's bullying is done electronically or on social media. Be sure to save these items so that you can share them with the school.

Under State law, schools are now required to have training and policies designed to prevent bullying. However, we are finding that the policies may be there but the implementation of those policies is lacking as is the training. So what you find are stories like Destiny and Phoebe, children who just wanted to go to school and get and education but were instead subjected to bullying which no one would stop.

What can you do if the bullying persists? You can file a lawsuit. A school that fails to respond appropriately to harassment of students based on a "protected class" (race, sex, national origin) may be violating one or more civil rights laws enforced by the Department of Education and the Department of Justice, including:

Title IV and Title VI of the Civil Rights Act of 1964
Title IX of the Education Amendments of 1972
Section 504 of the Rehabilitation Act of 1973
Titles II and III of the Americans with Disabilities Act
Individuals with Disabilities Education Act (IDEA)

In other words, school districts can be liable under the law if they ignore severe harassment that prevents a student from getting an education.

Obviously filing a lawsuit is an extreme measure but some schools are slow to respond or don't respond. They need to be held accountable when they are put on notice that one of their students is being subjected to bullying and they do nothing to help.

Continue reading "Using Federal Law to Stand Up to School Bullies in Mississippi" »

June 26, 2013

Court Defends Journalist's First Amendment Rights

police-arrest.jpgAlthough the First Amendment protects citizen-journalists' rights to photograph and record law enforcement officers in a public setting, officers continue to harass and even arrest citizens for exercising these rights. The First Amendment grants Americans the freedom to document, whether through print, photography, or film, public officials carrying out their duties in the public sphere. However, there have been several instances recently in which journalists have been arrested for photographing or recording officers behaving inappropriately. Do you see the problem here? Public officials, who are paid by the government to perform certain civic duties, are not only verbally harassing citizens exercising their First Amendment rights, but also physically harming and even arresting these individuals.

Four Circuits have already affirmed the rights of citizen-journalists to photograph public employees performing their jobs in a public setting. Recently, a journalist in Maryland filed a Complaint in Maryland District Court, claiming relief for being physically assaulted and unlawfully arrested by the local police. Garcia, the citizen-journalist who filed the Complaint, was accosted by officers when he was discovered photographing a separate incident nearby. However, Garcia did not begin photographing the police officers until he became aware of the excessive force used by these officers in making the arrests in the initial incident.

In Garcia's Complaint, he cites evidence of his beating at the hands of local police officers and his subsequent unlawful arrest. Not only did these officers prevent Mr. Garcia from exercising his First Amendment right to photograph police activity in a public setting, but the officers also took the film from his camera prior to making the arrest. The officers never returned this film. Garcia's Complaint even notes a correlation between the surge of police misconduct toward citizen-journalists in recent years, and the increasing popularity of websites such as YouTube, which hosts countless user-submitted videos documenting such police misconduct. Perhaps these officers, aware that Garcia potentially had photographic evidence of their misconduct, did not want their actions to end up in the media spotlight, like countless other documented episodes of police brutality.

As long as citizen-journalists are peaceful, and maintain a safe distance so as not to interfere with the arrest, their rights to document police activity, and that of other public officials, are strictly-protected. Accordingly, the local police department which employed these officers had a media relations policy that encouraged peaceful working relations with news media. The policy even stated that officers should treat the media as "invited guests" on crime scenes, rather than public nuisances, as Mr. Garcia was treated. This media relations policy encouraged the media to document newsworthy crime scenes, even noting that media should be granted greater access to the scene than other members of the public. The policy intended for media to be present at newsworthy incidents, believing their presence would portray the officers in a positive light for performing their duties satisfactorily. However, these particular officers clearly did not follow their department-wide media relations policy.

Citizen-journalists are encouraged to document the activity of police and other public officials to create more transparency in the federal government. Police misconduct in a public setting should be exposed. On the same note, positive acts of police and other public officials should also receive just as much publicity. Instead of accepting responsibility for their actions, and allowing Garcia to photograph the arrest, certain officers let their emotions get the best of them, knowing that Garcia had potentially-incriminating evidence of the officers' excessive use of force in the initial arrest which sparked this incident. These officers abused their power, turning Garcia's perfectly-legal actions against him.

Prior to his arrest, Garcia was not disturbing the peace, and he kept a reasonable distance from the officers. He did not interfere with the initial arrest in any way whatsoever. Garcia's only mistake was photographing these officers in a compromising position. If Garcia had not noticed these officers acting inappropriately, however, these officers would not have taken issue with his photography at all. Garcia was punished for performing his civic duty; for documenting what he believed to be excessive force used by the police. He did not behave inappropriately, nor did he behave in a disorderly manner. He was simply exercising his First Amendment right. Public officials performing official duties should expect their actions to be recorded while in public. How else would these officials be held accountable for their actions? Officials certainly do not object to being photographed when they behave admirably. Consequently, the right of citizen-journalists, and all Americans, to photograph police and other public officials performing their duties in a public setting, will always be upheld, as long as these reporters do not interfere with the arrest, or behave in a disorderly manner.

As this case illustrates, your First Amendment rights are fiercely-protected. If you believe your First Amendment rights have been violated, do not hesitate to call the skilled attorneys as Coxwell & Associates today. To learn more about Civil Rights cases, please visit our website.

June 25, 2013

"Permeating" a Vehicle Deemed Unconstitutional Search

police_dog_car_sniff.jpgIn U.S. v. Taylor, the U.S. District Court for the Southern District of West Virginia recently held that the police strategy of "permeating" a vehicle, prior to a drug dog sniffing the vehicle for drugs, constitutes an unreasonable search under the Fourth Amendment. Permeating a vehicle, or entering the suspect's vehicle without a warrant and tampering with the controls, involves turning the vehicle "on", rolling up the vehicle's windows, and adjusting the air conditioning to blow odors from the inside of the vehicle to the exterior, so the drug dog can more easily sniff out illegal drugs. This process of tampering with the interior mechanisms of the vehicle increases the likelihood that the drug dog, sniffing the exterior of the vehicle, will pick up the scent of any illegal drugs inside the vehicle. Since this search was performed without a warrant, and these officers did not have probable cause to search Taylor's vehicle, the judge found the officers' permeation unconstitutional. The officers' entry into the suspect's private automobile, to gather evidence they otherwise would have been unable to obtain lawfully, constituted an unreasonable search under the Fourth Amendment.

Although permeation has become a fairly common practice in many jurisdictions across the country, this West Virginia court found the practice unconstitutional. The court relied on two recent U.S. Supreme Court decisions to make this ruling: U.S. v. Jones and Florida v. Jardines. In Jones, the Supreme Court determined that placing a GPS device on the suspect's private property (his vehicle), without a warrant, was not only trespassing, but also constituted an unreasonable search under the Fourth Amendment, since this device was used to collect information about the suspect for over a month before his arrest. In Jardines, the Supreme Court upheld the Court's decision in Jones, finding that a police officer could not enter a suspect's porch, which was held to be an extension of the person's home, with the intention of conducting a search of the property without a warrant. Since the officer brought a drug dog to the porch for the purpose of carrying out a warrantless search, the Court held that the officer performed an unreasonable search under the Fourth Amendment.

When permeating a vehicle, the officer unlawfully enters the suspect's vehicle without probable cause. The officers entered Taylor's vehicle for one reason: to "stack the deck" against him by making it more likely the drug dog sniffing the exterior of his car would be able to detect the smell of illegal drugs, if any were hidden inside the car. The West Virginia court recognized the unconstitutionality of this practice, and stood up for Taylor's civil rights. As the Jones opinion notes, the government may not trespass, or physically enter private property, to collect information about suspects, without a warrant or probable cause. Doing so constitutes an unreasonable search under the Fourth Amendment. Because the officers physically entered the suspect's private property without a warrant, and performed an unlawful search of his vehicle, Taylor's constitutional rights were violated. Thus, physically entering private property without a warrant, to aid in the search of a suspect's property, is unlawful under the Fourth Amendment.

If you, or a loved one, have fallen victim to an unlawful search, please contact the skilled attorneys at Coxwell & Associates today. To learn more about civil rights litigation, please visit our website.

February 4, 2013

A Civil Rights Hero Turns 100

storybehind.jpgRosa Parks would have been 100 today. She passed away in 2005. When Ms. Parks refused to give up her seat on that bus on December 1, 1955 I don't think anyone realized what a profound impact she would have on what we now recognize as Civil Rights. Ms. Parks refused to give up her seat to a white person and was arrested for violating the segregation laws known as "Jim Crow Laws". After her arrest, African Americans organized a boycott against bus companies led by a young preacher by the name of Martin Luther King, Jr. The boycott lasted 381 days until the United States Supreme Court ruled that the Jim Crow laws were unconstitutional and that buses were to be desegregated. Ms. Parks' refusal to give up her seat sparked a civil rights revolution.

But how did the case get to the United States Supreme Court or even find its way to the court system? The NAACP legal team decided to use the Civil Rights Act, 42 U.S.C. 1983, to file suit against the the Mayor of Montgomery, Alabama W.A. Gayle. (Ms. Parks was not a Plaintiff in the civil suit. Instead, the NAACP selected five other African Americans who had also been discriminated against on the buses.) 42 U.S.C. 1983 was originally enacted in 1871 to help the Federal government combat KKK attacks on African Americans. Ulysses S. Grant signed the bill into law. The law was later changed to allow private citizens to sue states, cities, or counties for money damages or injunctive relief.

The strategy paid off as the Alabama federal district court ruled inn June 1956, that "the enforced segregation of black and white passengers on motor buses operating in the City of Montgomery violates the Constitution and laws of the United States," because the conditions deprived people of equal protection under the Fourteenth Amendment. The court further enjoined the state of Alabama and city of Montgomery from continuing to operate segregated buses. The case was appealed all the way up to the United States Supreme Court but they refused to overturn the district court's decision.

The Civil Rights Act can be used by any citizen (white, black, etc.) when their rights have been violated by the State. Over the past 18 years, I have filed numerous civil rights lawsuits alleging police brutality. My very first civil rights case was in 1995 against the City of Jackson. Our client's teenage son was killed while being arrested for a misdemeanor. He was unarmed at the time. We were able to obtain a $2.1 million verdict for the family in federal court. The 5th Circuit Court of Appeals subsequently affirmed (ruled in our favor) the verdict. The City of Jackson, just like the City of Montgomery, appealed all the way to the United States Supreme Court but to no avail. We not only were awarded the $2.1 million but our attorneys fees and costs had to be paid by the City of Jackson as well.

Continue reading "A Civil Rights Hero Turns 100" »

June 20, 2012

Social Media Updates That Could Implicate You

military-operation-canceled-facebook.jpgAs a 3 year member of the Facebook community I continue to be amazed at the personal information that my "Friends" place on their Facebook status. A recent marijuana arrest of a Madison, Mississippi couple caused me to think how such updates on social media outlets could come back to haunt you.

In the above article, the news reporter writing the story went to the Facebook pages for the couple and the couple's children in order to obtain background information for the story. Several intimate details of the family's life was detailed on Facebook. You can be sure that whenever a person is arrested, the police quickly find out which of the numerous social media outlets the person is on to see if they can find any evidence to use against them.

Here are just a few examples of some actual Facebook status updates:

"Please pray for my friend John Doe. He suffered a back injury and is undergoing surgery tomorrow". (That's a violation of someone's medical privacy, commonly known as a HIIPA violation even though there is no civil action for a HIPPA violation. However, it could be an invasion of privacy).

"I can't believe the nerve of some people! You know who you are Jane Doe! Stealing my BF behind my back! You are a slut and a whore! (Possibly slander depending on Jane Doe's reputation).

"Ima go get my drink on tonight!" (Several hours later this idiot was involved in a serious auto accident in which he was the driver.)

The Huffington Post listed 13 Facebook Posts that got people arrested.

These are just a few examples of some of the "updates" people feel the urge to post on Facebook. We've all seen similar posts. In fact, posts like this have led me to "hide" more "friends" than the F.B.I. Witness Protection Program.

Continue reading "Social Media Updates That Could Implicate You" »

February 13, 2012

A Week of Same Sex Marriage Developments Across the Nation


Same sex marriage has been a hot button issue for quite some time. Last week, two major events took place on the west coast. In California, the Ninth Circuit Court of Appeals declared that the state's ban on same sex marriages (Proposition 8) was unconstitutional. Then just one (1) day later, Washington passed a law allowing same sex couples to marry.

Prop 8 had been approved by 52% of California voters in 2008. The three judge panel declared the ban unconstitutional because it singled a specific group of individuals- in this case homosexuals- for no reason. In other words, in order to "discriminate" against a specific group of individuals, a state must have a compelling reason. The majority of the judges found California had no such reason; however, the lone dissenting judge found California's ban was constitutional because the state had an interest in the preservation of families. The judge who issued the opinion on behalf of the Ninth Circuit said the ban "serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples."

Even though the Court of Appeals declared Prop 8 unconstitutional, the same sex marriage issue is far from over in California. Opponents of the decision are already planning an appeal to the United States Supreme Court to review the decision. Additionally, Judge Vaughn Walker- the judge who initially declared the ban unconstitutional at the district level (level below the Court of Appeals) in 2010- has a conflict of interest hearing set for later this year. Critics of the decision allege the Judge should have disclosed his sexual orientation due to the decision he was being asked to render. The Ninth Circuit refused to invalidate Judge Walker's decision on that basis and held a judge's sexual orientation was not a basis that would allow the court to overturn that judicial decision.

Prior to Washington's recent law, six states and the District of Columbia allowed same sex couples to marry: Connecticut, Iowa, Massachusetts, New Hampshire, New York and Vermont. The Washington House of Representatives approved the bill last week and then the Republicans and Democrats of the Washington Senate- in a 55-43 vote- approved it. Washington Governor Chris Gregoire is set to sign the bill later this week. Yet same sex couples will not be allowed to marry until ninety (90) days after Gov. Gregoire signs the legislation. Even then, Washington voters- like the California voters in 2008- will be allowed to vote to decide whether they wish to overturn the legislature and Governor's decision to allow for same sex marriages in their state.

Mississippi currently has a ban on same sex marriages. The ban was initially issued in former Governnor Kirk Fordice's executive order in 1996. This was codified in Mississippi Code Annotated § 93-1-1 ("Any marriage between persons of the same gender is prohibited and null and void from the beginning. Any marriage between persons of the same gender that is valid in another jurisdiction does not constitute a legal or valid marriage in Mississippi.") 86% of Mississippi voters amended the Mississippi Constitution in 2004 to reflect this thereby declaring the ban appropriate. However, Mississippi does allow single homosexuals to adopt a child (Miss. Code Ann. § 93-17-3(5): "Adoption by couples of the same gender is prohibited."). The individual cannot be in a relationship or be part of a couple wishing to adopt (Miss. Code Ann. § 93-17-3: "Couples of the same gender may not adopt.")

Regardless of how you feel on the subject of same sex marriage, the debate over it in our court system does not seem to have an end in sight. Perhaps the United States Supreme Court will take California's appeal during their next session and shed light on this issue.

August 4, 2011

California Police Brutality Death Case Causes Deja Vu Moment

police_brutality.gifA tragic police abuse death case which occurred In the college town of Fullerton, California caused a serious deja vu moment for me. In the Fullerton case, a young mentally ill man, Kelly Thomas, was sitting on a bus bench when he was approached by police. They were investigating a report of some cars being broken into in the area and they wanted to search his backpack. When Kelly asked what he had done wrong the police wouldn't tell him so he ran. He was after all suffering from schizophrenia.

The officers, six in all, gave chase and subdued him with tasers, baton strikes, and general roughing up which included kicks and punches. As he was being beaten, Kelly cried out for his father. Kelly was beaten so badly he was taken to the hospital and later died of these injuries. When his father viewed the body, he assumed that his son had been beaten up by a local street gang. His initial thought was to call the Fullerton police and report the crime. Little did he know that Fullerton police officers were responsible.

The City of Fullerton has become defensive. They claim that this was an isolated incident and that its officers are trained to deal with mentally ill persons. However, either the training these officers received was deficient or they need to be retrained.

Continue reading "California Police Brutality Death Case Causes Deja Vu Moment" »

August 1, 2011

Immunity for Mississippi Police officers nvolved in crashes upsets innocent victims

weird_car_accident_buffalo_2.jpgThe Clarion Ledger had an interesting article this morning about immunity for Mississippi police officers who are involved in automobile accidents. The article mentions one of our previous cases, Harris v. City of Jackson which you can read about here.

It is truly a shame that police officers and other state, county, and city workers have immunity for car accidents for which you and I would be held responsible. The only way to overcome this immunity is to show the Government worker caused the accident by acting with "reckless disregard" to a person's rights. In the Harris case, the officer was speeding at 100 mph and ran a red light smashing into our client's son who was turning on a green arrow. This was held to be "reckless disregard".

Continue reading "Immunity for Mississippi Police officers nvolved in crashes upsets innocent victims" »

July 20, 2011

Curfew Laws - Teen Rights

Across the United States a new trend has developed. Teenagers have been using social media to communicate with one another on where groups will be "hanging out" during the summer nights. While this sounds like a simple way to just "spread the word" amongst teenagers, law enforcement has been eavesdropping with their own social media profiles and finding out where and when these "impromptu parties" are being held. Obviously, some residents of a particular area don't particularly like large groups of kids hanging out around their neighborhood. So they cal the cops if they aren't there already.

Well, to some cities, this isn't enough. City Council Members have banded together and have started passing city ordinances providing curfews in an effort to keep people under 18 years of age at home. Curfews are nothing new. Parents and teenagers are getting upset because some of these curfews are set as early as 6:00 p.m. The language of these ordinances are so vague that they basically allow any law enforcement officer to pull over a vehicle for no reason whatsoever other than the driver or passengers "look like they are under 18" and out past curfew.

The ACLU has had a field day with these curfews. They write letters and explain to City Officials that ordinances that seem to be protecting residents can actually be violating teenagers First Amendment Rights.

Every parent and teenager should be familiar with ordinances enacted during the summer months, regardless of where they live. If you need help understanding the ordinance of your area, give me a call and I'll be glad to help you.

Eric Brown

June 26, 2011

Does a Felony Conviction Take Away the Right to Vote? Yes, No, Maybe.

elections03.jpgMany of the people I meet in Jackson, Ridgeland, Clinton, The City of Madison, and all over Mississippi have a misunderstanding about the right to vote after a felony conviction. The Mississippi Constitution lists ten (10) crimes. The specific Mississippi Constitutional Provision is as follows:

SECTION 241, MS. Constitution of 1890:
Every inhabitant of this state, except idiots and insane persons, who is a citizen of the United States of America, eighteen (18) years old and upward, who has been a resident of this state for one (1) year, and for one (1) year in the county in which he offers to vote, and for six (6) months in the election precinct or in the incorporated city or town in which he offers to vote, and who is duly registered as provided in this article, and who has never been convicted of murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement or bigamy, is declared to be a qualified elector, except that he shall be qualified to vote for President and Vice President of the United States if he meets the requirements established by Congress therefor and is otherwise a qualified elector.

In addition to these ten (10) crimes the Mississippi Attorney General in an opinion listed eleven other crimes that should be added to the list. These crimes are armed robbery, extortion, felony bad check, felony shoplifting, larceny, receiving stolen property, robbery, timber larceny, unlawful taking of a motor vehicle, unlawful carjacking. These crimes were added because in the opinion of the Attorney General they fell within Section 241 of the Mississippi Constitution that prohibited voting after a theft conviction. In total there are 21 crimes that will take away your right to vote.

Mississippi Law states that anyone convicted of these crimes shall not be registered to vote and if already registered their names should be erased from the voter registration book by the county election commissioners. Miss. Code Section 23-15-19 (1972). A Federal Conviction of any kind does not prohibit a person from voting in Mississippi elections.

When I travel across the state I find that "good people can make some bad and sometimes dumb choices in life." I think at one time or another almost all of us find ourselves in that position. A felony conviction in Federal Court, another state, or for one of the crimes other than the 21 listed above does not prohibit a person from voting. If you fall into this category and you are not listed on the voting rolls you should demand to be put back on the rolls and if the election commission does not comply, then contact a lawyer. People in American fought for hundreds of years for the right to vote and you should not be intimidated, abandon, or ignore the right to vote.

Here is a brief summary of what qualified you to vote in Mississippi:
1. Be a citizen of the U.S.
2. Be a resident of Mississippi and be 18 years old at the time of the next election.
3. Live in the town you want to vote for 30 days before the next election.
4. You must not be convicted of one of the 21 crimes listed above.
5. You can still vote if you have a Federal conviction.
6. You can vote if you have a conviction from another State.
7. You can still vote if you have a Mississippi Conviction other than the 21 listed.

To register to vote you can get registration forms at public libraries, county court houses, community centers, post offices, and other city or county offices. You can also download the forms from the Mississippi Secretary of State's website. The process is easy and takes very little time. Exercise the most valuable right you have-vote.

May 25, 2011

Mississippi Freedom Riders and The Laws They Rode In On

breach.jpgThis is the 50th Anniversary of the Freedom Riders coming to Mississippi to help integrate bus stations, lunch counters, hotels, and various other public places. When the Freedom Riders arrived however, Mississippi police officers were waiting and armed with new laws with which to arrest them. These so-called "breach of peace" laws were passed in 1960 and 1961 primarily to allow officers to arrest civil rights protestors. The Mississippi Supreme Court upheld the conviction of various Freedom Riders in this 1964 case.

The most disturbing part of these statutes is that most of them are still on the books and being used every day to arrest Mississippi citizens for failing to comply with police orders even when they are not breaking the law in the first place. The Mississippi Legislature did repeal one of the "breach of peace" statutes in 2009.

I cannot recount the numerous cases which I have defended over the years which started out with an officer telling someone to "shut up", "come here", or do something. When the person excercised his or her constitutional right to refrain from doing as the officer said, the person was arrested and charged with "failing to comply with a police officer", "disturbing the peace", "disorderly conduct", and/or "resisting arrest". The facts at trial usually show that the citizen arrested was not committing any criminal act before being told by the officer to do something. Speaking, contrary to most police officer's opinion, is NOT a criminal offense. In fact, the Mississippi Supreme Court has even held that a citizen may even curse at a police officer but I do not recommend this course of action.

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May 17, 2011

Wrongful Death Lawsuit Filed Against University of Ole Miss

Coxwell & Associates and the Lanier Law Firm is announcing a wrongful death lawsuit filed today against University of Mississippi head football coach Houston Nutt, the National Collegiate Athletic Association (NCAA), the University of Mississippi and other defendants based on their respective roles in the 2010 death of student-athlete Bennie (Buster) Abram.

Mr. Abram, an Ole Miss junior and walk-on defensive back on the football team, collapsed and died on the first day of spring practice last year. According to the autopsy report, the 20-year-old's death on Feb. 19, 2010, was caused by complications from sickle cell trait with exertion and a contributing factor of cardiomegaly, an inflammation of the heart.

The lawsuit says coaches, trainers and athletic department officials at Ole Miss violated NCAA guidelines covering the intensity of spring practices, particularly for players with the sickle cell trait like Mr. Abram. The lawsuit also cites the NCAA for failing to implement adequate guidelines for off-season practices and for not sanctioning coaches who violate existing guidelines.

Also named as defendants are the university's board of trustees, Ole Miss athletic department medical director Dr. Jeffrey Dennis, strength and conditioning coach Don Decker, the UMAA Foundation (the Ole Miss athletic booster club), and Baptist Memorial Hospital in Oxford, Miss. The case is Bennie F. Abram Jr., et al. v. Houston Nutt, et al., No. 11-421-CIV, in the Circuit Court for the First Judicial District of Hinds County in Jackson, Miss.

Sickle cell trait appears in nearly 10 percent of the African-American population, and less commonly in all races. Believed to be the leading killer of Division I football players, the condition has been linked to at least nine deaths among college athletes since 2000.

Mr. Abram, a native of Southaven, Miss., fell unconscious and was treated on the practice field by athletic trainers before being taken to Baptist Memorial Hospital. According to doctors' reports, he went into cardiac arrest at the hospital and died six hours later.

"Buster's death is a tragedy that should have been prevented," says The Lanier Law Firm's Gene Egdorf, who represents the Abram family along with Merrida "Buddy" Coxwell and Charles R. "Chuck" Mullins of Coxwell & Associates, PLLC, in Jackson, Miss. "Every sickle cell expert in the world will tell you that the only way this trait can cause a student-athlete's death is when they are put through overly strenuous workouts like the one Bennie went through before he died. The negligence of the NCAA, coaches, trainers and staff combined with senseless off-season workout programs is a recipe for disaster. We will fight to change this cycle just like we did when we got the NCAA to change its rules to mandate sickle cell testing."

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April 22, 2011

The Law Says Your High School Senior Is An Adult!

Your graduating senior may still be your baby, but in the eyes of the law he or she is an ADULT!

That means you can no longer make important medical or financial decisions for your child without their permission. But your job of being a PARENT doesn't stop just because your child turns 18. If there's a medical emergency or your child asks for financial help, you NEED the ability to cut through the legal red tape and get involved.

FACT: Doctors, hospitals or financial institutions (i.e. college business offices, student loan processing agents, banks, etc) will NOT bend the rules on this! It's against privacy laws. You must have 3 KEY DOCUMENTS in place to make important medical or financial decisions on your child's behalf. Even something as simple as a status update would be refused!

It's easier to see this need in case of medical emergencies, but financial decisions are as equally concerning. Millions of college students fall prey to the "predatory" lenders on campus, all promising money through student credit cards and student loans. You need to be legally able to assist and safeguard the financial wellbeing of your new adult.

You need to ensure you do not fall prey these lenders yourself through cosigning for credit cards, student loans, etc. As a Mississippi bankruptcy attorney, I often I see young adults who have run up enormous debt during college and are now facing lawsuits and garnishments. I also see parents and grandparents are also facing the same due to cosigning for their childrens loans. Student loans cannot be discharged through bankruptcy.

I call these 3 key documents the Parent Child Protection Kit, as they will give you the legal permission you need to HELP your child! Seeking the counsel of an attorney is always recommended, however these forms are all available on the internet, free of charge, and do not require an attorney.
• Advance Health Care Directive
• Financial Power of Attorney
• HIPPA Medical Release Form

Here's wishing your new adult a hearty congratulations on their big graduation day and hoping that, through your guidance, they will never need my services!!