A fugitive people within a nation is tyranny.

Posts tagged ‘5th Amendment’

Know Your Rights & Flex Them

You risk losing your legal rights when you don’t use them. Know when you shouldn’t consent. When ticketed and when signing, place “without prejudice” above your signature and after your name “U/D” for under duress. If you’re pulled over, chances are you are under duress, because you will be compelled or threatened in some way. In this way, you can take some additional measures to protect yourself legally.

When pulled over in traffic always be calm and cool. Check your ego and avoid digging a hole for yourself.

Per the 4th Amendment you are protected against unreasonable search and seizure. Per the 5th Amendment a person cannot be compelled to be a witness against himself. The best way to do this is to keep your mouth shut. You have the right to remain silent, whether that makes you feel better at that moment or not. The 6th Amendment states that you have the right to counsel for your defense. It’s up to you to make smart choices.

The police may make false promises to you. Don’t let them fool you into waiving your rights. (Don’t you see this on cop shows? It happens all the time.) Your refusal to allow a search is not evidence of guilt and doesn’t give the officer legal right to search or detain you. Before an arrest, you may terminate your encounter at any time. Ask if you are free to go. “Officer, are you detaining me or am I free to go?” Avoiding a search may be best since you don’t what a previous owner may have left in your car. You also avoid waiving damage to your property.

You have the right to refuse. “I don’t consent to searches.” In fact, you have legal advantages to refusing a search. If you are searched without consent, your lawyer can challenge this. Remember that police must have evidence or clear cause that you are involved in criminal activity. Being tricked into consent is how most people lose their rights.

Don’t expose yourself by acting irresponsibly or being a public nuisance. However, living in a low-income community doesn’t waive your rights. Don’t give them probable cause or create suspicion. They can pat you down to see if you are armed. You aren’t required to empty your pockets as this is waiving your right against a search without cause. You aren’t required to consent. “Officer, I’m not resisting, but I don’t consent to searches.” Don’t physically resist. If you are cuffed and threatened with arrest or police try to get you to admit to any activity you are not involved in, you can say: “I’m going to remain silent. I’d like to see a lawyer.” When you are under arrest or being interrogated, these words are your best protection. Keep your mouth shut. You can’t expect to talk your way out of a police interrogation. Anything you say can and will be used against you in court. Don’t sign anything without a lawyer except a promise to appear in court.

Carrying an ID is only required by statute when driving. Otherwise, some states may require you to give your name. Police need reasonable suspicion to detain you. Simply ask if they are detaining you and if you’re free to go. If they don’t physically detain you, you are free to go. However, withholding your identity often leads to a detention or an arrest. If your goal is to quickly get on your way, then identifying yourself may be your best option. If you are willing to go to court, you can deny frequent ID requests.

Fighting against police misconduct is never easy, but it’s easier when you know your rights and act appropriately. You can file a legitimate complaint. If an officer has too many, he can removed from the streets. However, you will likely do yourself harm by threatening a complaint, so don’t make this mistake.

During any encounter pay close attention to details and events. Remember as much as you can about the officers: what they look like and names. Remember exactly what the officers said. If anyone witnessed the event, get with them about their recollection. Use whatever device you have to collect your thoughts and information. The longer you wait, the more you will forget. If you are injured by a police encounter, have photos made when you are at your worst and as soon as possible. Collect records for any medical treatment.

If officers knock at your door, do not consent to let them enter. You may ask if they have a warrant while keeping your door chain on. Their entrance may be a way to get you to consent to search your property. The 4th Amendment requires police to obtain a search warrant signed by a judge to search your home. Unless a serious emergency exists, police cannot enter your home without a search warrant. They don’t need a warrant if you invite them in. If you must talk with an officer, take your keys, lock your door and talk to them on the porch or sidewalk.

If police come to your door and you don’t need their help, you can simply decline to open the door, removing yourself to a more private place in the interior of your home.

Anniversary of Bradley Amendment Continues Child Support Discussion

by Killeen Gonzalez

May 5, 2011, marks the 25th anniversary of the controversial Bradley Amendment. In 1986, the Bradley Amendment was enacted into federal law as an amendment to Title IV of the Social Security Act thanks to the likes of then-Democratic Sen. Bill Bradley.

What is the Bradley Amendment?

The Bradley Amendment is a series of laws that were designed to prohibit non-custodial parents from having their child support arrears reduced or eliminated regardless of the circumstances. In addition, the amendment allowed child support enforcement workers to disregard changes in a non-custodial parent’s circumstances like job loss, incarceration, military service or physical disability in certain instances.

Furthermore, it gave the same workers the ability to pursue legal remedies against the non-custodial parent the moment a payment was missed without having to first go through a quasi-judicial or judicial proceeding. These legal remedies included asset seizure, un-expiring property liens, driver’s license suspension, professional license suspension, suspension of voting privileges and incarceration.

Why is the Bradley Amendment Controversial?

Opponents believe that, in part, by granting such capabilities to child support workers, the Bradley Amendment effectively disregarded the non-custodial parent’s constitutional rights of due process and equal protection as well as disregarded the unconstitutionality of what equates to nothing more than a “debtors’ prison.”

The rights of due process and equal protection were given to Americans after the Civil War as part of the 14th Amendment to the U.S. Constitution. Although 14th Amendment violations are most often cited by social advocacy groups, arguments have also been made that the Bradley Amendment violates the fifth, eight, ninth and 10th amendments as well.

Due process essentially ensures that all Americans are entitled to be heard in their own defense, have a right to legal representation even if they cannot afford a lawyer on their own, have a right to a fair and public trial with a jury of one’s peers and property taken by the government may only be done for public purposes and the government must reimburse that person the fair market value for that property.

The right of equal protection goes hand in hand with the right to due process and is designed to keep states from unfairly applying its laws to individuals under their jurisdiction. In this case, opponents of the Bradley Amendment believe that the laws are unfairly applied against the poor.

According to the Southern Center for Human Rights, in the state of Georgia alone there are over 500 non-custodial parents who are incarcerated over failure to pay child support. Of those non-custodial parents currently incarcerated, the majority were not given legal representation and are considered indigent.

The group’s website also cites that 70 percent of outstanding child support debt in this nation is owed by non-custodial parents who make less than $10,000 a year. According to the federal government’s poverty guidelines for 2011, an individual making $10,890 or less a year in most states is considered poor. This gives credence to the argument that the Bradley Amendment unjustly targets people living at or below poverty level.

Furthermore, another item that has been called into question related to the Bradley Amendment and the child support system as a whole is the money trail associated with child support enforcement. What many people may not realize is that not all money collected by child support enforcement workers goes to the custodial parent; some of it goes to the state and federal government to pay welfare debts.

Moreover, the state receives matching federal funds. Those matching funds then go, in part, to pay the salaries of the child support workers, as well as the law enforcement and legal representatives who assist them in collection efforts.

In addition, once a person is incarcerated, some prisons charge fines and fees to the inmates for such things as room, board and medical costs. Such was the case in Clinch County, Georgia, where detainees at the Clinch County Jail were unlawfully charged $18 a day for room and board regardless of whether they were later found innocent and released. A civil class action lawsuit was eventually filed on behalf of those detainees; the judge ruled that the sheriff had to return all illegal fees.

Challenges to the Bradley Amendment, Past and Present

Since its inception, the constitutionality of the Bradley Amendment, and child support in general, have been repeatedly called into question throughout the nation. Early cases in point include one from the Massachusetts District Court, one from Florida’s Sixth Judicial Court as well as the case of Michelle Sweat, which was heard in Georgia by Superior Court Judge C. Diane Perkins in February 2002. The judges in each of those cases found aspects of child support laws to be unconstitutional.

From 2004 through 2006, there were moves made on behalf of the American people to get both the courts and the U.S. Congress to repeal the Bradley Amendment entirely on the basis that it is unconstitutional. The case was ultimately dismissed in February 2006. That, however, was not the end of the discussion by any means.

In July 2008, then-presidential candidate Barack Obama and Sen. Evan Bayh came under fire for their introduction of the Responsible Fatherhood and Healthy Families Act of 2007, which was also seen as unconstitutional by some groups. The introduction of the act revived the earlier arguments against the Bradley Amendment, which brings us to the most recent challenge made to the constitutionality of the law.

On March 22, the Southern Center for Human Rights filed a civil rights class action lawsuit on behalf of six non-custodial parents from several Georgia counties. At this time, the case is still pending.

Sources:

Congressional Research, “The Bradley Amendment: Prohibition against Retroactive Modification of Child Support Arrearages” Congressional Research

Associated Press “Parents Sue Ga. Over child support jail time” The Augusta Chronicle

The Law Office of the Southern Center for Human Rights, “Debtor’s Prison” Southern Center for Human Rights

The Law Office of Southern Center for Human Rights, “Georgia Deprives Children as Indigent Parents Languish in Debtor’s Jail for Inability to Pay Child support” Southern Center for Human Rights

William Akins, “Why Georgia’s Child Support Laws are Unconstitutional” Georgia Bar Journal

Cornell University Law School, “Equal Protection” Cornell University Law School

E Manning, “Obama Attacks Constitutional Rights of Non-Custodial Parents” Newsvine.com

Center for Law and Social Policy, “Responsible Fatherhood and Healthy Family Act of 2007” Center for Law and Social Policy

Christine Vestal, “Child Support Enforcement Takes a Hit” Stateline.org

U.S. Department Health and Human Services, “The 2011 HHS Poverty Guidelines” ASPE.hhs.gov

Phyllis Schlafly, “Repeal the Bradley Amendment” Restoring America

Alliance for Non-Custodial Parent’s Rights, “U.S. District Court of MA Civil Docket” ANCPR.com

Divorcenet “The Bradley Amendment: How Does it Affect Men’s Child Support” Divorcenet.com

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