The Legal Dose Episode 4: Dosing with the Dean

October 30, 2013

The Legal Dose Episode 4: Dosing with the Dean

Dean Conison has recently joined the Charlotte School of Law, and shares his thoughts on bar passage, the Charlotte Edge program, and some of his favorite things at CSL with Civil Rights Clinic members Celia Olson and Daniel Melo.

 

Click the link above to listen in, or download the podcast episode for free on iTunes!


LGBTQ: What Does It All Mean?

October 27, 2013

By: Joshua Lipack

Many people find discomfort in discussing the acronym LGBT or LGBTQ … or LGBTQIA for that matter.  And herein lies the point.  The discomfort often encountered when discussing these issues isn’t coming from a place of animus or moral disapproval as it more commonly would have been less than a decade ago.  Many people find it uncomfortable discussing these terms, primarily in mixed-company, because the terms, and the acronyms that house them, are strange to many people.  People don’t want to say something that comes across as ignorant or offensive.  I know this because, as someone included among these letters, I too find many areas within my apparent “community” that remain foreign to me.

As a subject that changes regularly with generational preferences on self-identification it is difficult, even with modest effort, to feel entirely well-versed on everything falling under the newly reclaimed “Queer” umbrella.  What is offensive to some may be a badge of honor and self-identification for others.  In this kind of environment, attorneys Sarah Demarest and Kelly Durden of the LGBTQ Law Center in Charlotte have sound advice to offer.  Refer to people by name, be respectful, and only use terms they have already used to identify themselves.

Attorneys Sarah Demarest and Kelly Durden of the LGBTQ Law Center training Charlotte School of Law Civil Rights Clinic Students on the LGBTQ community

Last week Demarest and Durden gave a special training to the Civil Rights Clinic to better understand how to serve the specific needs of LGBTQ clients.  A portion of the training was dedicated to terminology and terms to avoid.  One of those terms was “homosexual.”  As a gay male, I had always thought it was the more appropriate term in place of ‘gay’ during academic conversation or in writing.  Since coming out four years ago, I have seldom thought about the myriad of terms available to the Queer community.  I wasn’t even aware that “queer” was no longer offensive.

When I came out, I was the only person, at least to my knowledge, who was openly gay on my campus at Queens University in Charlotte.  I had the support of my fraternity and of my family and therefore never ventured much into the LGBTQ community around me, the existence of which was largely unknown to me.  For the sake of terminology, I never wanted my sexuality to define me as a person.  I am gay and therefore my boyfriend, like me, happens to be male.  Beyond that, this revelation was of no importance to any other aspect of my life.  I was “gay” and, for me at least, it was as simple as that.

While it is my personal opinion that the terms available and those continually being added or removed add too much confusion, this is only true through my personal experience.  A key factor in our training was that each person, based on vastly different life experiences, will feel differently towards each term and how they most comfortably identify themselves.  Just as there is more to the color spectrum than blue and green or red and yellow, sexuality, as well as gender identity and expression, fall within a spectrum with many people finding themselves somewhere in-between the more familiar gay or straight.  I cannot blame, and people should not feel uncomfortable, for a want of understanding this spectrum when, as a member of the LGBTQ community, I myself learned new things during this training.

One letter I had generally been unfamiliar with, other than the umbrella ‘Q’ of course, was the ‘T.’  People, whether they are aware of it or not, identify in three categories: gender identity, gender expression, and sexuality.  In my case, my gender identity is male, my gender expression is male, and my sexuality is gay – or, until last week, ‘homosexual’ in my mind since I am writing.  What many are unaware of, particularly in dealing with the Transgender community, is that people can find themselves within any number of possible combinations of these three categories.  Cross-dressers for example, a term which should only be used in reference to people who self-identify that way, are not necessarily transgender, meaning that while someone who is biologically male may dress as a female (gender expression) they do not necessarily consider themselves to be female (gender identity) as would be the case with someone who is transgender.

The key takeaway from all of this is to respect people’s freedom to identify themselves.  If someone who is biologically female, and perhaps even appears to be female, identifies themselves as male, that distinction is one that should be respected.  It requires no further knowledge to interact with the LGBTQ community without being offensive.  There is no need to ask whether this person is ‘post-op’ or ‘pre-op,’ in fact this should be avoided entirely, because all that matters is how they feel and choose to present themselves.  The process for transgender individuals is one that is deeply emotional and personal.  Questions regarding the process or where they are in the transition are inappropriate unless they offer to speak on the subject.

For many of my fraternity brothers, I was the first ‘gay’ person in their life and so of course, many had questions.  While some were naturally inappropriate or offensive, such as asking whom between my boyfriend and I “wears the pants,” they all generally came from a place of seeking understanding or general curiosity and even fascination.  Revisiting my fraternity today as an alumni chapter advisor, the number of openly gay and lesbian students on campus has grown exponentially in part of a general trend of coming out at a younger age, a change occurring only in recent years.  I notice now that the questions are less frequent and the understanding seems to come more naturally with younger generations.  The LGBTQ community has unique and complex issues that take time and experience to understand.  I feel that understanding is coming more easily to younger generations not from education but simply from living in a world where members of this community are seen daily as our friends, neighbors, and family.  What’s to understand?  Perhaps the need for so many terms and spin off definitions will fade as we move towards a world where the fact that I plan on proposing to a man is of no concern to anyone.  In the meantime, the information provided by the LGBTQ Law Center is a valuable tool for any future lawyer hoping to feel confident and comfortable working with LGBTQ clients.


Spark To Ignite a Bigger War? The Syrian Conflict and the Role of the US

October 21, 2013

By: Brittany Moore

On September 24, 2013, Tony Ketron, Professor at CSL, spoke on the United States’ involvement in the current civil war in Syria. Ketron’s presentation addressed the legal, political, and international implications of U.S. military involvement.

The current civil war in Syria began over two years ago. The United Nations reports over 115,000 casualties and millions of refugees being displaced so far.[1] The spark of the current state of affairs in Syria can most prominently be traced back to 2011, with the Arab Spring that took over the region. The Arab Spring is the violent and non-violent protests and revolutions consuming the Middle East region to thwart the current governmental structures that are oppressing the people in favor of a more democratic governmental structure. Soon, Syria became engulfed with political and civil unrest as protesters sought to overthrow the current Baathist regime. Then on August 21, 2013, the Syrian government used chemical agents on the citizens of Syria in and around the capital of Damascus.

So what does this have to do with the U.S.? The role of the U.S. relates to Syria’s non-compliance with two treaties. The first treaty is the 1925 Treaty, which simply bans the use of poisonous gases in warfare. At the time the treaty was signed, Syria was still under the control of France, and did not sign the treaty. This means that Syria would be able to use poisonous gases, such as sarin, sulfur, and mustard gases in domestic and international warfare. However, through customary international law, a state which accepts without opposition the customary and general practices regarding international affairs and humanitarian laws is seen as accepting and being subject to the 1925 Treaty, which Syria has done until recently.

The second treaty is the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, colloquially referred to as the Chemical Weapons Convention (“CWC”). The CWC aims to eliminate weapons of mass destruction (“WMD”) by prohibiting the development, production, acquisition, stockpiling, retention, transfer, or use of chemical weapons.[2] Under the CWC, the Chemical Weapons Commission is to report UN countries that do not comply with the CWC by possessing or transferring chemical weapons in some manner.

The U.S. has two main concerns regarding the use of WMD’s in Syria. The first concern is that this type of technology will be used by terrorists suspected by the U.S. to reside in Syria. Second, the current conflict in Syria poses a real threat of spilling over the borders which would harm U.S. Allies such as Israel and the strategic interests of the U.S. and sparking a much bigger war. “We need to be very, very careful on how we proceed and we need to have a clearly defined objective,” said Ketron. Conflicts within this region have typically involved various overriding cultural issues, most notably religious views, strategic interests, and a history of conflict dating back thousands of years.

Initially, President Obama approached Congress seeking approval for military force, if necessary, to disarm Syria of their chemical weapons. However, this drew a lot of criticism because President Obama is authorized under the War Powers Act to independently authorize the use of military force for a period of 90 days in order to secure U.S. strategic interests and arguably Article II of the United States. Criticism has come not only come from Congress and the American people (approximately 72% of Americans are against any U.S. involvement in the Syrian conflict[3]), but also from other countries. Russia and Great Britain have stated they will not participate or endorse military force being used to address the Syrian Conflict. “The U.S. has set a precedent of acting alone to further our international views; Iraq conflict, Desert Storm, and World War I,’ said Ketron. A student asked “if President Obama were to exercise his independent power to employ military force in Syria would it potentially open up the door for World War III?” Ketron responded, “that probably won’t happen, but we can’t be sure. Using force now would be jumping the gun.”

On September 20, 2013, Syria and Russia entered into a treaty that has derailed the possibility of using U.S. military force in Syria. Ketron explained that this treaty essentially provides that Syria will disclose and release any and all chemical weapons in its possession for destruction or disposal. Additionally, the treaty provides for the inspection 45 sites suspected of producing or storing chemical weapons in Syria. Russian and U.S. officials, with oversight by the UN, are to conduct the inspections beginning in November with destruction of those weapons to be complete by 2014. Ketron explained that “Right now active U.S. involvement most likely will be limited to assisting with the site inspections and the destruction or disposal of chemical weapons.”

Why do we care about the Syrian conflict? We care for two main reasons. First, as a practical matter, the U.S. is a major world leader that prides itself on championing democracy, justice, and furthering humanitarian principles. In connection with the U.S.’s position as a world leader, our economy and the value of the American Dollar influence the affairs and actions of foreign third-world countries. Second, the U.S. has strategic interests in protecting Middle Eastern allies, like Israel, from the proliferation of chemical weapons to terrorist organizations, the spillover effects of chemical agents being used across borders, and the millions of refugees who are currently seeking shelter and safety from the turmoil. “I think we are a stabilizing force for Democracy, even when we aren’t welcome,” said Ketron.

World conflicts arise almost daily, however, it is the manner in which they are handled and resolved which demonstrates the strength of the country, and the world. More often than not the resolution of an international third-world conflict needs the assistance of a world leader to prevent further destruction and conflict. The U.S.’s involvement in Syria, at this point, is to do just that – to prevent further conflict and destruction.



Citizens Review Board article in Creative Loafing

October 19, 2013

Citizens Review Board proposed reform will change little

Creative Loafing published Clinic member Isabel Carson’s recent article on the latest happenings surrounding the reformation of Charlotte’s Citizens Review Board. Click the link above to read more.


Constitution in the Classroom

October 13, 2013

By: Isabel Carson

On September 17th, students from the Charlotte School of Law participated in an event called “Constitution in the Classroom” promulgated by the American Constitution Society (ACS).  The basic premise of the program is to take law students into middle school and high school classrooms and have them teach an amendment from the Bill of Rights.  ACS provides an outline of the lesson plan, handouts, and step-by-step instructions for the hour and a half class.  Regardless of preparation or materials, I was in for a surprise and a challenge.

Waiting outside the principal’s office has never felt so nerve-wracking.  For 10 minutes I waited with a fellow clinic member outside of the administrative suite at West Mecklenburg High School for an escort to take us to a Tenth grade Civics class.  No amount of stress or anxiety over oral arguments, job interviews, or first dates had prepared me for the nerves I felt walking into that classroom full of Tenth Graders.

Initially, few students even noticed the group of strange, overdressed adults as we entered the classroom.  Chatter continued until the teacher welcomed us and suddenly, we had the floor.   Luckily, our lesson on the 6th Amendment fit right into the material the class had been covering the past few weeks.  Students who were familiar with the branches of government chimed in as we did a brief overview of the roles of the government in creating, enforcing, and interpreting laws.   However, as the conversation became more pointed and students had less of a basis of knowledge, attention began to wane.   It was like…well…high school.  Side conversations, rude comments, giggling, and sheer inattention began to bubble over at times.

What began as a written lesson plan, had to become an organic conversation.  We could not teach AT the students. We could not pass out worksheets, explain, break them into groups, and expect them to get anything out of the activities.  We asked students to replace the fake characters from the hypothetical scenarios with themselves: what would YOU do?  What seems unfair to YOU? What should have happened?  All of a sudden, these questions were answerable.  These kids had knowledge – not the kind law students get from agonizing over case law, but real-world experiences and a fundamental sense of what is right and fair.

Sometimes in law school, the focus on black letter law and judicial rationales does not account for the actual experience of the parties to a case or the real-world variations of how laws are enforced against different groups of people. Taking a step back and hearing the experience of another human being –regardless of age, race, sex or outlook – was a humbling and challenging experience for me.  Forgetting some of my pre-conceived notions of constitutional jurisprudence, I was reminded of the reasons why I attended law school when these kids explained the importance of representation for all and fair law enforcement procedures.  Their foundation for how the law SHOULD work as compared to their understanding of how the law DOES work illustrated a missing link that is apparent in all realms of social policy and interaction.  Whether it is a legislator serving his constituents, a lawyer serving her clients, or a teacher teaching a student – there is almost always a lack of access to or practical understanding of opposing perspectives.

As lawyers, we are counselors, advocates, and technicians of the language of the law.  We are also servants, and in the grand scheme of things, it is the PEOPLE whom we serve.  The people in that Tenth Grade classroom reminded me that the real world and the black letter law are constant contradictions, and that communication and access are vital tools in repairing the discord between policy and application.  As a servant, I strive to break down the barriers of communication and to make resources and knowledge more accessible to all.

I believe each student (whether Law student or Tenth grade civics student) that participated in the Constitution in the Classroom event came away with a unique experience or benefit, and I encourage any and all to participate if given the opportunity in the future.


Citizens Review Board Reform: An Exercise in Semantics

October 6, 2013

By: Isabel Carson

On Monday September 24th, at the Council-Manager Relations Committee meeting, the Citizens Review Board Task Force offered a stick to the community’s outcry for reform of the Citizens Review Board (CRB).  Albeit, the stick was disguised as a carrot – cloaked in the language of “recommendations for reform” – the recommended changes proposed by the Task Force leave the CRB’s Appeals process virtually the same.

We all know the numbers by now: 0-79, as revealed by the Observer article last February, “CMPD Review Panel Rules Against Citizens – every time.”  Since last February, the local media has advertised this stark statistic, emphasizing the failure of the CRB to ever find on behalf of the citizen.  However, it is not the “0” that struck a chord with the Charlotte School of Law Civil Rights Clinic.  More troubling than the fact that the CRB has never decided a case in favor of a citizen in its 16 year existence, is the unfortunate reality that in 16 years and 78 appeals filed, only 4 times has a citizen received a full adversarial hearing before the board.  Only 4 times has a citizen been afforded an objective forum to present all of his/her evidence and question the evidence of the police department or Internal Affairs.  This is due to the unreasonably high evidentiary burden and the inappropriately focused standard of review at the threshold of the appeals process.

As the ordinance currently stands, the citizen complainant is required to prove by a “preponderance of the evidence” that the police chief “abused his discretion” before the CRB will even allow a full evidentiary hearing.  Preponderance basically means 51% while the abuse of discretion standard forces the CRB to pay high deference to the decision of the police chief.  The citizen must meet this standard both at the threshold of the appeals process and again at the full evidentiary hearing stage, and the community as well as city officials have consistently pushed to lower this burden.  The recommendation from the Task Force in Monday’s meeting was to change the language of this standard to “substantial evidence that an error occurred in the investigation of the complaint or disciplinary action of the police chief.”  This new standard changes nothing and is the same in practical effect as the original standard for three distinct reasons.

First, requiring a citizen to show a preponderance or even substantial evidence at a stage in the appeals process when the only evidence offered are the statements by the complainant and any and all evidence/witnesses or personnel that the Police Department wishes to present – is like a kitten on a seesaw with an elephant.  The majority of the evidence (due to resources and knowledge of the process) comes from the police department.  For this reason, the Civil Rights Clinic has proposed that this initial standard, when the CRB is deciding whether to hold a full hearing, should be lowered to “reasonable cause to believe.”  Given the facts and circumstances, the CRB members should have some indication that the complaint is not frivolous and that misconduct could have occurred.

Second, the Task Force’s cleverly re-worded standard of review, focusing on the investigation procedures of Internal Affairs or the disciplinary decision of the Police Chief, is just another way to impose a deferential review of the complaint that fails to assess the underlying facts of the case.  It entirely misses the point of independent oversight of law enforcement.  The CRB was created during a time of community turmoil and distrust of the CMPD after several shootings in the mid 1990s.  The purpose of oversight was to establish a neutral intermediary between the CMPD and citizens, an avenue for citizens to present their cases outside of the perceived biases of CMPD and Internal Affairs.  When the standard that the CRB is required to apply to citizens’ complaints focuses their review on the procedures of IA or the discretionary decisions of the Police Chief, rather than the underlying merits of the complaint that neutrality is compromised.  For this reason, our Clinic has proposed that the full burden at the threshold stage be “reasonable cause to believe that misconduct occurred.”

Third, requiring citizen complainants to meet the exact same standard at the threshold hearing as in the full evidentiary hearing is not logically sound.  In a criminal trial, there is first a probable cause hearing where facts must support a reasonable belief that criminal activity occurred; and then at trial, the prosecutor must prove guilt beyond a reasonable doubt.  In a civil trial, a plaintiff’s complaint must be factually sufficient if taken as true to present a claim upon which relief can be granted; then the trier of fact weighs evidence that is gathered throughout the discovery process to make his determination.  In no instance that I can imagine is the threshold burden, before the record is factually developed, equal to the burden at final disposition.   For this reason, while our Clinic proposed lowering the threshold burden, we would promote maintaining a higher burden at the full evidentiary hearing: “preponderance of the evidence that misconduct has occurred.”

Back in February, when the media first sounded the horn for reform of the CRB, Julian Wright, the CRB’s attorney, published a statement in the Observer to explain that any deficiencies with the CRB were structural and due to the language of the ordinance.  In his statement, published on February 24th, 2013, Mr. Wright observed that “[i]f the Observer, City Council, or our community wants different results from the CRB, they need only lower the “abuse of discretion” standard imposed upon the board” which “could yield dramatically different results in CRB appeals.”  This suggestion provided an early roadmap for reform which has been lost in the stakeholder process.

I am not so naïve as to demand that this issue be resolved in 90 days.  I do not mistakenly presume that all of the nuances of the various community stakeholders’ proposed reforms can be understood in a brief hour-long meeting.  I do expect, however, that our representatives in the City Hall chambers intend to thoroughly address the structural and practical obstacles prohibiting the CRB from building community trust.  The entire community expects it.  In the wake of the tragic shooting that occurred on September 14th our city cannot afford to let community distrust in our Law Enforcement linger.


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