Former CRC member sworn in at Mecklenburg County Courthhouse

October 20, 2014

Thom Prince, member of the Civil Rights Clinic from 2013-2014 and all-around great guy, passed the North Carolina Bar Exam in July and was officially sworn in to practice in North Carolina by our very own professor, Jason Huber.Swearing Huber

Thom is currently employed as an attorney with Milazzo Schaffer Webb Law, PLLC.

The Civil Rights Clinic would like to congratulate Thom on his excellent achievements!


#DayOneNC: History at your Doorstep

October 14, 2014

By Celia Olson

It was a rainy day in Matthews, N.C.  The kind of weather that marks the beginning—and the end—of scary movies.  I was sitting in a Chili’s restaurant, eating a juicy bacon cheeseburger when I got the news: Judge strikes down North Carolina gay marriage ban.  Several advocacy groups had been live-tweeting updates on the status of North Carolina’s same-sex marriage ban throughout the week, so I had been following the Civil Rights Clinic Twitter feed all day, refreshing at 20-30 second intervals, waiting for the precise moment when history would be made.  I had the search keyed up so that every time someone tweeted on the topic I would find out instantaneously: #DayOneNC.  And so, at just after 5 PM on Friday night, I found out that same-sex marriage is now legal in North Carolina.

As far as I know, there haven’t been any reports of catastrophic world-ending events or activity since Friday night.

But let me back up and set the stage for you.

As recently as two weeks ago, same-sex marriage was only legal in nineteen states and the District of Columbia.  Of those nineteen states, three states legalized same-sex marriage by popular vote, eight by state legislature, and eight by court decision.[1]

This seems crazy considering that as of right now, 8:15 AM on October 14, 2014, same-sex marriage is legal in 30 states.

The tides turned last Monday, October 6, 2014, when the United States Supreme Court—in unexpected fashion—declined to decide whether states can ban same-sex marriage by rejecting appeals in cases involving five states.  All five states (Virginia, Oklahoma, Utah, Wisconsin, and Indiana) had lower court rulings that struck down same-sex marriage bans.  Immediately, those five states reverted back to the lower courts’ binding precedent, effectively legalizing same-sex marriage.  In the span of one week, six other states followed, all of which were bound by the regional federal appeals court rulings that had struck down other bans.[2]

So what does this mean for North Carolina?

North Carolina, along with Alaska, West Virginia, Nevada, Idaho, and Colorado, have since legalized same-sex marriage through subsequent court rulings, bringing the total states with legal same-sex marriage to thirty.  Even more are expected to follow in the upcoming weeks.[3]

Amendment One, North Carolina’s ban on same-sex marriage, went into effect during a Republican primary in May of 2012 when it was approved by a majority of voters.[4]  On Friday, October 10, 2014, U.S. District Court Judge Max Cogburn struck down Amendment One, citing the controlling Fourth Circuit Court of Appeal’s case, Bostic v. Schaefer, as precedent.[5]  Bostic v. Schaefer involved two same-sex couples: one couple was denied a marriage license in Virginia, and the other couple’s valid California marriage license was not being recognized in Virginia.[6]  They were successful in their fourteenth amendment claim at the trial court level with strong wording by the presiding judge, whose decision was later affirmed by the 4th Circuit:

“A spirited and controversial debate is underway regarding who may enjoy the right to marry in the United States of America. America has pursued a journey to make and keep our citizens free. This journey has never been easy, and at times has been painful and poignant. The ultimate exercise of our freedom is choice. Our Declaration of Independence recognizes that “all men” are created equal. Surely this means all of us.” – Virginia Eastern District Court Judge Arenda L. Wright[7]

In North Carolina, with Judge Cogburn’s ruling, same-sex marriage could begin immediately—and it did.  In Buncombe County, the Register of Deeds stayed open an extra two hours Friday night to ensure that every couple who had been waiting in line could get their marriage license.

Amy and Lauren first in line in Buncombe County!  Photo courtesy of the Campaign for Southern Equality Twitter Feed.

Amy and Lauren first in line in Buncombe County!  Photo courtesy of the Campaign for Southern Equality Twitter Feed.

In Mecklenburg County, the first same-sex marriage license was granted at 8:10 AM on October 13, 2014, to Terrence Hall and Christopher DeCaria.[8]  Unfortunately though, the morning was not all peace, love, and rainbows.  Protesters gathered at the courthouse by 9 AM, yelling at the waiting couples that they were “going to hell.”[9]  Some protestors were asked to leave, while some remained, silently holding signs.  Despite the negativity, 62 couples were able to successfully receive marriage licenses in Charlotte—and others were even married right there at the courthouse!

The scene outside the Mecklenburg Courthouse in uptown Charlotte.  The Mecklenburg Register of Deeds said that yesterday was the most marriage licenses ever issued in his county in a single day.

The scene outside the Mecklenburg Courthouse in uptown Charlotte.  The Mecklenburg Register of Deeds said that yesterday was the most marriage licenses ever issued in his county in a single day.

Whether you are straight or gay, if you think this does not affect you—you are wrong.  A recent study conducted by The Williams Institute estimated that with the legalization of same-sex marriage, North Carolina stands to add $64 million to the state and local economy over the next three years due to the increase in weddings being performed in-state.  What same-sex marriage does not affect are the pre-existing and future marriages of heterosexual couples.  Believe it or not, they still will hold valid marriage licenses.

Allowing everyone, regardless of their gender, race, sexual orientation, etc., to receive equal rights under the law is the hallmark of the civil rights movement in the United States.  Thank you, North Carolina, for stepping up and standing on the right side of history.

[1] http://gaymarriage.procon.org/view.resource.php?resourceID=004857.

[2] In 30 states – AK, CA, CO, CT, DE, HI, ID, IA, IL, IN, ME, MD, MA, MN, NC, NH, NJ, NM, NV, NY, OK, OR, PA, RI, UT, VA, VT, WA, WV and WI, plus Washington, D.C. – same-sex couples have the freedom to marry. http://www.freedomtomarry.org/states/.

[3] In an additional five states (Arizona, Kansas, Montana, South Carolina, and Wyoming), federal appellate rulings have set binding precedent in favor of the freedom to marry, meaning the path is cleared for the legalization of same-sex marriage there as well.  Id.

[4] http://ballotpedia.org/North_Carolina_Same-Sex_Marriage,_Amendment_1_(May_2012)

[5] http://www.southernequality.org/wp-content/uploads/2014/10/Cogburns-order.pdf

[6] Bostic v. Schaefer, 760 F.3d 352,  (4th Cir. 2014).

[7] Bostic v. Rainey, 970 F. Supp. 2d 456 (E.D. Va. 2014) (language comes from the lower court’s order granting summary judgment to plaintiffs).

[8] http://www.newsobserver.com/2014/10/13/4230114_first-same-sex-marriages-performed.html?rh=1

[9] http://www.charlotteobserver.com/2014/10/13/5238996/gay-couples-line-up-early-monday.html#.VDwVl_ldXkU


The NC State Bar Substantially Curtails Prosecutors from Forcing Defendants to Waive their Civil Rights

December 5, 2013

By: Celia Olson

As a result of the CSL Civil Rights Clinic’s (“Clinic”) inquiry filed over a year ago, the North Carolina State Bar (“Bar”) recently issued a Formal Ethics Opinion significantly curtailing the use of Release-Dismissal Agreements (“RDA”).

RDAs are “deals” offered by a district attorney to wrongly convicted, and in many instances incarcerated, individuals.  In exchange for the district attorney moving to dismiss the case, a defendant waives his or her right to sue any persons involved in his or her prior arrest, prosecution, conviction, or detention.

The Clinic was approached over a year ago by a man who served ten years of a life sentence for a sexual assault he did not commit, and who had signed an RDA to get out of prison.  At the time, RDAs were not per se invalid and were often legally enforceable.  However, the Clinic was so astounded at the coercive nature of his circumstances that it decided to research the practice of RDAs both in North Carolina and across the country.

Not surprisingly, North Carolina had never addressed this issue head-on, as was the case in most other states.  However, those states that had prohibited RDAs gave a foundation for the Clinic to begin its research.  The Clinic drafted a formal inquiry to the Bar detailing the various ethical approaches other states use to address RDAs, and detailed the appropriate response for North Carolina in response to the problem: to ethically prohibit RDAs in all circumstances, from arrest to post conviction.

The Clinic joined forces with the North Carolina Advocates for Justice and its liaison to the Bar, Burton Craig, to lobby for an ethical prohibition.  After over a year of hard work and persistence, the Bar recently addressed this matter.   While the Bar chose not to explicitly ban all instances of Release-Dismissal Agreements, it does provide significant limitations on their use.

First, the opinion prohibits a prosecutor from conditioning a motion to vacate a conviction due to newly uncovered evidence upon signing a waiver (RDA).  Second, before negotiating a waiver with a pro se prisoner, it requires the prosecutor to seek judicial approval of pro se representation.

Further, and most importantly:

“[A] prosecutor may only negotiate an agreement that includes a waiver of the prisoner’s potential civil claims against the sovereign or public officials if the prosecutor has the legal authority to represent the interests of the sovereign or those officials with respect to such civil claims.  It would be unethical for the prosecutor explicitly or implicitly to misrepresent the scope of the prosecutor’s authority to negotiate with respect to such civil claims.”

This limitation is critical because, in North Carolina, prosecutors do not have the authority to represent most police agencies and government actors in civil proceedings, which effectively bars release-dismissal agreements in the most common situation in which they would arise.

The Clinic is satisfied with the opinion because these limitations strengthen the ethical fabric protecting the civil rights and remedies of wrongfully convicted individuals.  However, their efforts did not stop there.  The Clinic was (and is not) satisfied that the majority of state bars have never addressed this issue.  So, after filing an inquiry in North Carolina, the Clinic filed similar inquires in eighteen other states.  Several states have declined the invitation to issue an opinion but many are still considering the substance of the Clinic’s inquiry.  Virginia was the first to issue an opinion which prohibits the “routine” use of RDAs, and subjects any non-routine use to intense ethical and legal scrutiny.

To read the entire Formal Ethics Opinion published by the North Carolina State Bar, go to http://www.ncbar.com/ethics/ethics.asp.

If you would like more information or have any questions about the Civil Right Clinic’s work contact Jason Huber at jhuber@charlottelaw.edu.


Rally to Restore the Fourth (Amendment) to be held July 4th, 9am at Trade and Tryon.

July 1, 2013

Restore the Fourth is a grassroots, non-partisan, non-violent movement that seeks to organize and assemble almost 100 protests nationwide on July 4th, 2013.  Restore the Fourth Charlotte is a coalition of with a broad political background who demand that the government of the United States of America adhere to its constitutionally dictated limits and respect the Fourth Amendment. We seek to raise public awareness of the unconstitutional surveillance methods employed by the U.S. government.

Restore the Fourth maintains that justification of the Fourth Amendment beyond the original text need not be given; the legitimacy of which is self-evident. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Fourth Amendment of the Bill of Rights clearly protects all citizens’ assets, both digital and physical, against searches and seizures without warrant.  We aim to assert those rights and insist that the proper channels of government work to ensure that all policy complies with the supreme laws of the United States of America in their entirety.

Restore the Fourth requests that American citizens’ right to privacy is respected and stands with the Electronic Frontier Foundation and StopWatching.us on their open letter to Congress. As informed members of the American electorate, they endorse and echo the letter’s demands:

1. Enact reform this Congress to Section 215 of the USA PATRIOT Act, the state secrets privilege, and the FISA Amendments Act to make clear that blanket surveillance of the Internet activity and phone records of any person residing in the U.S. is prohibited by law and that violations can be reviewed in adversarial proceedings before a public court;

2. Create a special committee to investigate, report, and reveal to the public the extent of this domestic spying. This committee should create specific recommendations for legal and regulatory reform to end unconstitutional surveillance;

3. Hold accountable those public officials who are found to be responsible for this unconstitutional surveillance.

This movement intends to bring an end to twelve years of Fourth Amendment abuses and to ensure that all future government surveillance is constitutional, limited, and clearly defined.  On July 4th at 9:00am, Restore the Fourth Charlotte will rally at the corners of Trade and Tryon to demonstrate the need for a return to the principles of the Constitution. We urge you to join us on the most patriotic of days and to help spread awareness of these violations of our Constitution.


Ban the Box in the News

April 21, 2013

Over the past two months public dialogue about Ban the Box has increased, spurred on by the Charlotte City Council’s decision to send the issue to the Economic Development Committee.  Several local media outlets exposed the issue to a wider audience, and helped Charlotteans begin to understand the importance and details of the proposed ordinance.

Creative Loafing highlighted the contributions of Councilwoman Mayfield and the Civil Right Clinic in getting the City Council to consider the needs of the thousands of Charlotteans who have conviction histories and are looking for work.  Councilwoman champions ‘Banning the Box:’ Spearheaded by LaWana Mayfield, job application question regarding prior convictions debated in city committee.

The Charlotte Observer ran an editorial by Civil Rights Clinic member Cleat Walters III, which highlighted the benefits of the ordinance to the City.  Banning ‘the box’ eliminates unfair obstacle to jobs

Unfortunately, not all of the stories in the media were accurate.  While we all have sympathy for the family and fiance of murder victim Danielle Watson, who was killed during a robbery inside the Flying Biscuit, WBTV’s story highlighting his opposition to Ban the Box “Murder victim’s fiance outraged over bill to remove “felon” question from job application” fails to identify the fact that the ordinance does not prohibit criminal background checks for job applicants.

Hopefully, Charlotte will follow cities like Richmond that recently enacted a similar ordinance as reported by The Richmond Times-Dispatch.  Richmond City Council unanimously passes ‘ban the box’ ordinance.

Ban the Box is slated for discussion during the May 2nd meeting of the Charlotte City Council’s Economic Development Committee.  The coalition hopes the  meeting room CH-14 in the Government Center will be packed when they consider this important measure at 12pm that day.


Civil Rights Clinic members speak to City Council about reforming Citizens Review Board

April 2, 2013

On Monday evening, April 1, 2013, the Charlotte City Council heard Civil Rights Clinic members Isabel Carson and Daniel Melo advocate for the reform of the city’s Citizens Review Board. Isabel and Daniel were two of a series of eight speakers to the City Council about the Citizen’s Review Board and the need for change. Charlotte’s Citizens Review Board is the forum for appeals for citizens who have complained about police misconduct. After an informational presentation by the city’s stakeholders and then public input during the Citizens’ Forum, the City Council decided to (1) have the City Manager develop a stakeholder process within the next 90 days and (2) send the ordinance, City Ordinance 849, to the Council Manager Relations Committee for review. Changing the standard of review and the need for transparency were recognized as primary areas in need of reform. The Council asked for further data collection, analysis, and possible reform of those issues.

Board

dan

Isabel
Pictures by Katie Webb

Please stay tuned to the Civil Rights Blog for more updates and information in the following weeks!

For further information, please read:

Observer article April 1st Council Meeting: After scrutiny, council votes to examine review board

February Observer Article: The real story on the Citizens Review Board

By Lindsey Engels


Another “Win” for CSL Civil Rights Clinic and Release-Dismissal Agreements

March 19, 2013

On January 29, 2013, the Ethics Committee of the North Carolina State Bar responded to the Civil Rights Clinic’s inquiry with a proposed Formal Ethics Opinion banning the use of release-dismissal agreements by state prosecutors.  North Carolina, one of the first states the Clinic contacted at the start of this project, is among the first state bars to draft an opinion initiated by the Clinic’s inquiry.  The Ethics Committee based its Opinion on North Carolina Rule of Professional Conduct 3.8(a), which forbids a prosecutor from prosecuting a charge that the prosecutor knows is not supported by probable cause.

A release-dismissal agreement happens when a prosecutor enters into an agreement with a criminal defendant to dismiss criminal charges in exchange for the defendant’s release of any and all civil claims arising out of the defendant’s arrest, prosecution and/or conviction. When the Clinic started the project in the fall of 2011, 13 states had already addressed the issue.  Indiana, South Carolina, New Jersey and Massachusetts prohibit the use of release-dismissal in entirely.  California and Ohio permit defense attorneys to offer a release-dismissal agreement, but flatly prohibit a prosecutor from doing so.  For more information about the project, where we have filed, and the status of the project, check out these articles:

In the proposed Opinion, the Committee stated that the inquiry is limited only to state court prosecutions where the state “did not also assert civil claims against the defendant arising from the same alleged criminal conduct.”  The Committee further stated, “When new evidence clearly demonstrates that a convicted person should be released from prison, the duty to ‘seek justice’ requires a state prosecutor to initiate a proceeding to have the conviction vacated if not already initiated by the convicted person.”  The Committee asserted that conditioning the initiation of that proceeding, or cooperation with a proceeding initiated by the convicted person, upon the convicted person’s release of all civil claims against authorities “violates the most basic tenets of a prosecutor’s responsibilities as set forth in Rule 3.8.”

By tying the use of release-dismissal agreements to these rules and banning the use of release-dismissal agreements in dismissing convictions, North Carolina is on its way to joining the likes of Virginia, South Carolina, Indiana, Connecticut and others to prohibit the use of release-dismissals in criminal cases.

The Civil Rights Clinic will submit written comments on the proposed Formal Ethics Opinion to the Ethics Committee concerning the absence of federal prosecutors from the Opinion’s restrictions, its limitation of the ban to post-conviction matters, and language in the Opinion that requires clear demonstration that a convicted person should be released from prison.

If you wish to submit a comment on the proposed Formal Ethics Opinion to the Ethics Committee, please send the comments to

North Carolina State Bar

Ethics Committee

PO Box 25908

Raleigh, NC 27611

 

By Jordan Dupuis


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