Archive for July, 2009

Racial Profiling: Who’s Stereotyping Whom?

Wednesday, July 29th, 2009

(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.

Broker Commissions Don’t Run with the Land (But They Might be Jogging)

Monday, July 27th, 2009

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.

Tuition Reimbursement for Private Special Education

Thursday, July 23rd, 2009

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.