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Racial Profiling: Who’s Stereotyping Whom?July 29, 2009 by Peter B. Paris, Esq.
(Printed in The Trenton Times Op-Ed Section, July 27, 2009) As a former big-city police officer, a former police misconduct investigator, a bi-racial African-American, and as an attorney who defends both police officers and the criminally accused, I have a unique perspective on the touchy subject of “Racial Profiling,” an issue which has recently been debated in the Times editorial pages by Ewing Attorney Donald Roscoe Brown and Lawrence Township Police Chief Daniel Posluzny. Since any public discussion of racial profiling usually ends in a predictable stalemate, with familiar arguments and little new insight, I will make an effort to advance this discussion. Like Mr. Brown, I feel I would “be doing a gross disservice by not writing of my personal experience.” For three years in the mid 1990s, I served as a police officer in a high-crime neighborhood in Boston. I was a “working cop,” so I stopped many cars and people for many different reasons. Some people got arrested, but most did not. While sometimes race was a factor in my decisions to stop someone, it was never the only factor. I worked in a predominately black neighborhood with known areas of illegal drug dealing. If I saw a young white male drive up to a young man late at night on a known drug corner, stop momentarily, and make an exchange, I might stop the driver. Race would be a factor in my decision, but I think justifiably so. Other genetic characteristics, such as age and gender, also played a role in my decisions. Although race played no role in most of my decisions, I was frequently accused of racial profiling. Of course I knew such accusations were false, but I also knew that I could never really prove my true intentions to the satisfaction of my accusers. As an eager and idealistic rookie, I would try to explain myself, and I made it a point to be excessively polite. But nothing worked. Eventually, I realized that it wasn’t about me at all. Ironically, I was the one being stereotyped. It didn’t matter that I am not a racist. Certain people with pre-formed beliefs about police officers were going to accuse me of racial profiling no matter what the facts were. The essence of the job of a police officer is to make judgments – dozens on any given day. Those judgments are informed by the circumstances at hand, common sense, academy and field training, but mostly experience. For cops on the beat, it is a challenge to determine the truth of any given situation. Sometimes, police officers draw mistaken conclusions from their observations. Since no human being is perfect – and yes, cops are human beings – mistakes and misperceptions are inevitable. One response to this inevitability is to grant police officers the benefit of the doubt with the understanding that such mistakes are minimized through training, supervision, judicial scrutiny, and experience. Police officers, prosecutors, many judges, and a large portion of the general public tend to give police the benefit of the doubt and presume that they act in good faith, unless credible evidence shows otherwise. A contrary response to the inevitability of police mistakes is to use them to forward a personal or political agenda. Espoused by Al Sharpton, the ACLU, the news media, and some people who have been stopped by police, this agenda-based approach posits police mistakes, combined with historical inequities, as conclusive evidence of racial profiling. Conveniently, the actual existence of racial profiling in any given case can rarely be conclusively proved or disproved because the evidence lies solely in a police officer’s mind. The perfect circularity of this argument makes it an effective fund-raising tool, political rallying cry, and a profitable source of headlines. But unfortunately, the truth becomes secondary. Which brings me to Mr. Brown. In his opinion article, “Driving While Black in Lawrence Township,” (June 18) Mr. Brown accuses a Lawrence Police Officer of pulling him over because he is black. He was wearing a suit, and was otherwise driving safely. The officer told him he thought he was not wearing his seatbelt. When he realized the seat belt was engaged, he sent Mr. Brown on his way. By Mr. Brown’s own description, the officer was “very respectful and polite,” and the stop lasted about 30 seconds. In his July 10 response article. “Lawrence Township Policing Is Equitable and Fair,” Chief Posluzny informs us that the stop occurred during the nationwide “Click it or Ticket” campaign in which police all over the country were instructed to ticket drivers not wearing seat belts. Mr. Brown concluded that “but for my blackness, I probably would not have been stopped.” The irony is that Mr. Brown drew conclusions based on his stereotypes of police officers. Without any factual basis, Mr. Brown assumes that “perhaps [the officer] wasn’t aware of some subconscious views he might possess regarding the unwarranted belief that blacks, in general, are predisposed to committing crimes and unlawfully operating motor vehicles.” It’s disappointing that an intelligent and accomplished person like Mr. Brown would make such a serious accusation based on nothing more than his own stereotype that white police officers harbor “subconscious” racist views that influence their professional decisions. But, I wonder whose subconscious is influencing whom. It would be foolish for me to argue that there are no racist cops. But, it is equally foolish to accuse a police officer of one of the most serious offenses in the profession based on nothing more than a stereotype. Posted in Police Litigation | Comments Off Broker Commissions Don’t Run with the Land (But They Might be Jogging)July 27, 2009 by admin.
By Brian Mills, Esquire Commercial Real Estate Brokers received some assistance from the New Jersey Supreme Court protecting their right to lease renewal commissions following a sale of the property for which the Broker had a listing agreement. This is an important decision because following a sale, Brokers no longer have privity, a legal prerequisite to enforcing a contract right, with the owner. The new decision relaxes the privity requirement and provides direction for Brokers who wish to protect their right to the valuable income provided by renewal commissions.
This decision, Pagano Company v. 48 South Franklin Turnpike, LLC, 198 N.J. 107 (2009), softened the prior ruling on the issue (VRG Corp. v. GKN Realty Corp. 135 N.J. 539 ((1994)) which gave buyers of leased properties a clear path to avoiding responsibility for commissions after purchasing a property.
The VRG court deemed the obligation to pay renewal commissions “personal” meaning it does not “run with the land” the same way an undischarged mortgage would. As such, buyers are not responsible for renewal commissions absent an “affirmative assumption” of the obligation.
The Pagano ruling did not expressly reverse VRG, rather it broadened the circumstances under which a purchaser is said to have “affirmatively assumed” the commission. Accordingly, it is incumbent upon brokers to understand the ruling in order to position themselves favorably with respect to this important issue.
The Pagano Court relied on a provision in the listing agreement stating it is “binding on successors and assigns” coupled with express references to the listing agreement in the leases, sufficient to find the buyer “affirmatively assumed” the responsibility to pay renewal commissions– even though the buyer never provided with the listing agreement.
The ruling is limited however, providing “it would be grossly onerous and unfair to hold that in all contracts, a buyer impliedly agrees with the broker that he will pay the commission” and leaves the door wide open to future litigation of this issue. Attorneys will certainly use the Court’s rationale to fashion their transactions in such a way to avoid responsibility for the very benefit the Court was trying to protect.
Brokers can hope the next ruling will follow the reasoning in another case where a plaintiff attempted to deny a broker his commission on the grounds that it is a “personal” obligation and not tied to the land:
1If plaintiffs are correct in arguing that the commission is not [due and payable] then the following anomalous result will occur: the mortgage and judgment creditors will be fully satisfied; the sellers will be freed of their responsibility to pay those debts and the [broker]… will receive nothing… [T]hat result strikes one’s conscience as inequitable. 1Cohen v. Estate of Sheridan, 218 N.J.Super. 565, (N.J.Super.Ch.,1987).
To be clear, no decision has ruled a Broker is not entitled to renewal commissions; only that the new owner is not responsible to pay the seller’s broker. With Pagano as a precedent for protecting Brokers, perhaps if presented with a case for commissions against a seller that no longer owns the property, the Court will rule that of the three potential ways to resolve this issue: (1) the seller pays renewal commission on a property it does not own; (2) the broker is denied compensation it earned because of something totally beyond its control; or (3) the buyer pays commissions on lease renewals for which it receives rents, it is most fair to hold the buyer responsible unless the seller “affirmatively assumes” the obligation.
For the time being, however, because “affirmative assumption” is almost completely beyond the Broker’s control, Brokers should consider requesting permission from their clients to record the commission agreement against the property the same way a lender records its mortgage. This would absolutely ensure renewal commissions become the responsibility of the buyer. The landlord may agree because it unambiguously relieves it of responsibility for renewal commissions following a sale of the property. If an owner refuses to permit recording of the listing agreement, Brokers should, at a minimum, be sure their listing agreements are expressly “binding on successors and assigns” and if possible, should seek to either be identified as a broker in the lease or, preferably, have the listing agreement referenced in the lease. Posted in Real Estate | Comments Off Tuition Reimbursement for Private Special EducationJuly 23, 2009 by admin.
In June 2009, the United States Supreme Court decided Forest Grove School District v. TA in which the Court held that private tuition reimbursement may be obtained even if the child was not previously receiving special education benefits from the public school system. However, this does not mean that a child who never went to public school can obtain tuition reimbursement. It means that, if a child was denied special education services before enrolling in private school, tuition reimbursement is a possible remedy. Previously, it was an open question among the Circuits whether a child had to have had an IEP before tuition reimbursement could be considered. That question has been answered in the negative. Parents must understand that the public school system must be given a chance to provide a free, appropriate, public education for children with learning differences before tuition reimbursement can be available. If you are a parent who is dissatisfied with your child’s progress in special education or mainstream classes, you must first complain to the principal and/or special education department and demand an IEP or review thereof. You do not have to accept whatever IEP they come up with, but you must make your dissatifaction known in writing. Then, if the school is unable to provide an adequate education, and you have the means to do so, you can enroll your child in private school and then hire an attorney to litigate reimbursement. The best proof that a public school system provided an inadequate education is a child’s success in a private school. While it is often possible to obtain tuition reimbursement before attending private school, it is most effective from a litigation standpoint to be able to point to dramatic progress in the private school as a prima facie case that the public schools failed the student. If your child with learning differences is making progress in private school, and s/he was in public school at some point, you may be able to get your tuition reimbursed. Call Peter B. Paris at Maselli Warren to discuss your options. Posted in Special Education Law | Comments Off Trooper Higbee’s Trial for Vehicular Homicide Is Set to Begin in Cape MayApril 20, 2009 by Peter B. Paris, Esq.
All eyes in the New Jersey law enforcement community will be riveted on the upcoming trial of Trooper Robert Higbee. On September 27, 2006, Trooper Higbee’s cruiser crashed into a mini-van, killing two young sisters, Christina and Jacqueline Becker. Though this event was clearly a horrible tragedy, questions are always raised in the law enforcement community about the fairness of criminally prosecuting a police officer for a fatal traffic accident that occurred while the officer was on duty, and clearly acting in good faith. While the Higbee trial is technically about the events on the night of September 26, 2006, the underlying policy question remains: should our communities seek severe criminal punishment for police officers who are involved in traffic accidents, when there is no indication that the officer purposely did anything wrong? The facts will become more clear as the trial progresses, but The Press of Atlantic City has reported the following scenario. Trooper Higbee claims that he was trying to catch up with a speeder aroung 10:00 pm on the night in question. He had not yet activated his lights and siren when he passed through a stop sign at approximately 60 mph, colliding with the mini-van on the front driver’s side. According to the defense, the New Jersey Police Vehicular Pursuit policy states, in part, that when a police officer is attempting to stop a vehicle, the officer “shall, when possible and without creating a threat to public safety, close the distance between the two vehicles prior to activating emergency lights and an audible device.” There can be little argument that the Becker family is due civil damages under a civil negligence standard. Indeed, the State Police has already resolved the civil case with a $2 million settlement. Of course, money cannot bring back the two girls, but such a settlement would not be unusual if the person who struck the mini-van was not a police officer, and alcohol was not involved. The question is whether Trooper Higbee committed a criminal act by “recklessly” passing through the stop sign. During this trial, there will be testimony from eye-witnesses, some of whom may have actually seen the collision, whereas others will have only seen events leading up to and subsequent to the crash. There will also be experts who will describe the speed and direction of each vehicle and will try to re-create the circumstances of the crash. There will also be experts discussing police pursuit policies and whether or not Trooper Higbee abided by those polices. But at the end of the day, after all the facts of the case are in, the jury’s final decision will turn on its understanding of the term ”reckless” and how it applies that understanding to the facts. In other words, what was the officer’s state of mind when the accident occurred? The notion of a culpable state of mind can be an intellectual quagmire, but can be summed up as follows. There are four states of mind: purposeful, knowing, reckless, and negligent. “Purposeful” conduct is something done consciously and purposely, like first-degree premeditated murder. “Knowing” conduct is similar to purposeful conduct, except that the actor need not have specifically intended a particular result. Recklessness and negligence are close cousins. Whereas negligence means that the actor “knew or should have known” that his conduct carried certain risks or would likely have a certain result, recklessness requires ”a conscious disregard” for a particular risk and that such a disregard was a “gross deviation” from what a “reasonable” person would have done under the circumstances. Determining the difference between, say, “purposeful” conduct and “reckless” conduct is usually quite straightforward. But it gets tricky when jurors attempt to differentiate “reckless” and “negligent” conduct. With respect to vehicular homicide, a defendant must be found innocent if his conduct was negligent, and guilty if it was reckless. According to the model jury instruction for reckless vehicular homicide, ”A person acts recklessly when he/she consciously disregards a substantial and unjustifiable risk that death will result from his/her conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the defendant’s conduct and the circumstances known to him/her, disregard of the risk involves a gross deviation from the standard of conduct that a reasonable person would observe in the defendant’s situation.” There is no model negligent homicide jury instruction. But, we can look at the jury instruction for another statute to demonstrate how fine the line is between recklessness and negligence. The negligence component of the jury instruction for the crime of “Reckless or Negligent Infliction of Injury to Innocent Persons” reads:
The defense will likely focus on two key aspects of these instructions. First, it will argue that, at worst, Trooper Higbee’s passing through the stop sign constituted a negligent act. The defense may even request an instruction on negligence, especially if the jury asks the judge to clarify the meaning of recklessness. In any event, under the facts as we now know them, it would seem difficult for the defense to credibly argue that Trooper Higbee bore absolutely no fault. After all, two young girls are dead, he was traveling over 60 mph without using his emergency lights and siren and without stopping at the stop sign. Therefore, the defense is likely to focus on portraying Trooper Higbee’s conduct as “mere” negligence. The second key aspect of the defense will relate to the second part of the recklessness instruction which states that a person with a reckless state of mind must have CONSCIOUSLY disregarded a risk that was so obviously dangerous that ”disregard of the risk involves a GROSS DEVIATION from the standard of conduct that a reasonable person would observe in the defendant’s situation.” The defense will correctly argue to the jury that “recklessness” is quite a high standard under these circumstances. Even if Trooper Higbee’s passing through the stop sign at 60 mph was a deviation from standard policy, that alone is not enough for a conviction, even if it is enough for purposes of civil liability. Instead, Trooper Higbee’s conduct must have been a “gross” deviation from such standards. This is the reason why the NJ Police Vehicular Pursuit Policy is so central to this case. Trooper Higbee will argue that he had been “trained” to delay the use of emergency lights and siren until he caught up to the alleged speeder. Therefore, not using his emergency equipment was not a gross deviation from applicable standards. However, the prosecution will argue that, even if this policy was in place and Trooper Higbee knew about the policy, he still was obligated to not “create a threat to public safety” by doing so. The prosecution will argue and present expert evidence to the effect that, under ANY circumstances, a police officer should not pass through a stop sign at 60 mph, especially not at night with no lights or sirens, and that doing so is a “gross deviation” from reasonable standards. Unfortunately for Trooper Higbee, modern police training typically requires officers to slow down at all intersections, even when lights and siren are engaged. In the end, the members of the jury will apply common sense and their own “gut feelings” in applying the law to the facts. This will undoubtedly be an emotional and vigorously contested trial which we will continue to follow as it proceeds. Posted in Police Litigation | Comments Off A Holistic Approach to Representing Juveniles and Young AdultsApril 14, 2009 by Peter B. Paris, Esq.
As a former social worker and police officer, I have alot of experience with troubled youth. There is no single prescription for helping them turn things around, but my experience has shown me that young men and boys in trouble tend to lack the psychological self-awareness necessary to understand the roots of their behavior and learn to control their impulses. My fundamental belief is that all adolescents can benefit from professional counseling, even those not in trouble. But, for those who have behavior problems that get them in trouble at school or with police, counseling is imperative. The main challenge, of course, is to get young men and their parents to “buy in” to therapy as an opportunity for growth, not as a symbol of personal or parental failure. It is my firm belief that when teenagers and young adults engage in behavior that leads to police involvement, the behavior should be viewed as a cry for help. I also believe that police, prosecutors, and judges want to believe the same thing. But they also know that some kids and young adults simply do not have the kind of support necessary to answer the cry. When that is the case, the State will step in to fill the void — one way or another. It is my job to help convince judges and prosecutors that the family and the individual know what they need to do and are taking the necessary steps to correct misbehavior so the State can turn to those truly in need of intervention. From an attorney’s persective, simply defending the case does not answer the young person’s cry for help. Even if I get the case dismissed, without counseling and other life-changes, the problem is likely to recur. Therefore, I believe in taking a “holistic approach” to each case, which is designed to create a positive overall experience out of a negative incident. While the “heavy lifting” must still be done by the young person and his family, I try to use the incident as a motivator and opportunity for real change. The first step is to engage support services soon after an arrest has occurred. Strategically, judges and prosecutors appreciate that a defendant has decided to take positive action before being ordered to do so. But even if the young person is 100% innocent, and the case could be dismissed or won at trial, the young person needs to appreciate the gravity of the situation and learn to examine past misbehavior or unhealthy friendships in productive ways. In sum, I try to help families “treat the patient, not just the symptom.” A professional counselor will provide a safe, confidential environment for the young person to discuss life with an adult who is skilled at creating a relationship of trust. Only good can come of that. If your child or a young person you know is in trouble, call Peter Paris at Maselli Warren, PC to discuss ways to approach the case itself as well as ways to create positive change. Posted in Criminal Defense, Municipal Court, Family Law | Comments Off News Flash - USCIS Updates Count of FY 2010 H-1B Petition Filings.April 14, 2009 by Yan Bennett.
News Flash - USCIS Updates Count of FY 2010 H-1B Petition Filings. 42,000 petitions have been submitted towards the 65,000 maximum cap. See the full press release, here: http://www.uscis.gov/files/article/h-1-cap-9april09.pdf. Posted in Immigration Law | Comments Off Sexual Harassment Victim: How to Stand Up for YourselfApril 8, 2009 by Peter B. Paris, Esq.
Women who are victims of sexual harassment and discrimination often suffer in silence. Like rape victims, victims of sexual harassment often feel somewhat responsible for being mistreated. Make no mistake: it takes courage to stand up for yourself. But once you summon the courage to do something about it, you need a good lawyer who understands and appreciates the financial and psychological damage that sexual harassment causes. State and federal laws are well designed to provide women with the tools to fight for their rights. But there is also bad news. First, it is very difficult to successfully sue for sexual harassment if there has not been a substantially adverse employment action, like termination or demotion. If the harassment is so severe that you cannot return to work without extreme anxiety, depression, or other serious psychological harm, it is possible to show that you have been “constructively discharged,” which means that the situation is so bad that a reasonable woman would not be able to work in the environment. The point is that you need to have suffered an adverse employment action that is related to sexual harassment before you can hope to bring a successful lawsuit. The other bad news is that harassment can be difficult to prove without corroboration. I call this the “He said/She said” dilemma. Technically, a successful case can be proven solely on the basis of one person’s testimony, but in reality, you need to locate, collect, and/or generate evidence that corroborates your side of the story. Here are some tips that will help your case immensely: 1. If you are currently suffering sexual harassment, start documenting the events, preferably by emailing yourself or a trusted friend. Using email will “time-stamp” the entries automatically so you can easily prove they were written on certain dates. Simply writing things down on paper does not prove when they were written. 2. It is important to document harassing events before you suffer an adverse employment action. Often, an employer will fire or demote someone because they complain about harassment, but the employer gives a different, pre-textual reason like chronic tardiness, multiple absences, dishonesty, etc. But if you have already documented the harassing conduct, you will be able to show that the employer’s reason is a mere pretext. 3. You must tell someone at the supervisory level about the harassment before any adverse employment action has been taken. Employers are required to take such complaints seriously, and they are prohibited from retaliating against you for reporting sexual harassment. If you do complain, and they fire you soon after, you may have a strong case, especially if you have documented the harassment. 4. If you do not feel comfortable reporting the harassment to a supervisor or the owner, then you should file a complaint with the Attorney General’s Office, Division of Civil Rights, or the federal Equal Employment Opportunity Commission (EEOC). You cannot sue your employer for sexual harassment if your employer did not know about it and had an opportunity to fix the problem. 5. I realize that there is often a real risk of illegally getting fired in retaliation for reporting harassment. However, there is strength in numbers. Find a trusted associate or supervisor to accompany you when you report the harassment. Or, you can hire an attorney to help you report the harassment. 6. If you are fired after you report sexual harassment, demand that your employer state in writing the reason for your termination. 7. Hire an attorney as soon as possible after being terminated or demoted. This is important because of the statute of limitations, but it is most important because taking legal action soon after termination will, in itself, corroborate your allegations of harassment. If you have been subjected to severe or pervasive sexual harassment, suffered an adverse employment action, and you have corroborating evidence, call Peter B. Paris at Maselli Warren for a free consultation. It may be time to stand up for yourself. Posted in Sexual Harassment, Employment Law | Comments Off News Flash - USCIS Announces Continued Receipt of H-1B Visa PetitionsApril 8, 2009 by Yan Bennett.
News Flash - USCIS Announces Continued Receipt of H-1B Visa Petitions U.S. Citizenship and Immigration Services (USCIS) announced today that it will continue to accept H-1B applications until the Fiscal Year 2010 (FY 2010) cap of 65,000 petitions is reached. USCIS stated it will monitor the number of H-1B petitions received for both the 65,000 regular cap and the 20,000 U.S. master’s degree or higher educational exemption cap. USCIS also stated that it reserves the right to randomly select petitions in a lottery to reach the cap, although USCIS previously stated that it would utilize the random lottery only in the first five days of the filing period. See the USCIS press release issued today for the full report: www.uscis.gov. Posted in Immigration Law | Comments Off H-1B Lottery for Fiscal Year 2010April 6, 2009 by Yan Bennett.
This year, certain employers may be receiving a boon from the economic downturn. Each year, employers are permitted to hire temporary foreign workers in specialty occupations under the visa category of H-1B. The H-1B category is numerically limited to 65,000 (the “cap”), which causes a great deal of anxiety to employers who are seeking to fill needed positions in their companies. Employers must file beginning on April 1. In the past, the U.S. Citizenship and Immigration Services (USCIS) would conduct a “lottery” to determine acceptance of applications. This lottery is conducted by receiving petitions for temporary employees and if the cap is reached within the first five business days, then 65,000 petitions are selected at random for processing. USCIS has confirmed that it will utilize the lottery system this year. Government regulation also provides that if the cap is not reached in the first five days, USCIS will not conduct a lottery and will process petitions on a first-come, first-serve basis. While USCIS believes that the cap will be reached before the ultimate deadline of Posted in Immigration Law | Comments Off Employers Should Note Significant Changes to I-9 Employment Eligibility Verification FormApril 6, 2009 by Yan Bennett.
After April 3, 2009, employers are required to use a newly revised Form I-9, Employment Eligibility Verification Form, to verify the employment authorization of their new employees. Only the new form, which has “Rev The most significant change to the Form I-9 is the requirement that all documents presented during the I-9 verification process must be unexpired. The government has also added additional documents that may be used for verification. Human Resource and Personnel departments should carefully review the revisions and ensure that they are compliant with the new rules. Failure to do so may result in civil fines. Employers should not require existing employees to complete new Forms I-9 unless re-verification of work authorization is required. The employer may be subjected to allegations of discrimination under federal law if the employer requests unnecessary documentation or unnecessary completion of new Form I-9s. If the employer knows or suspects the employee is not authorized to work legally, the employer should seek legal advice in the proper investigation or termination of the employee. Employers and employees should feel free to contact Yan Bennett at Maselli Warren, P.C. with any immigration questions. Posted in Immigration Law | Comments Off | |||||||||||||||||||||||||||||||||||||||||||||||||