Over the last several years it was commonplace to see news reports concerning citizens being arrested for videotaping police officers while doing acts in the line of duty, like making a motor vehicle stop or a sidewalk arrest. These video-taping citizens were often charged with crimes such as “obstructing government operations” or violations of wiretapping laws intended to protect private conversations. While it may seem obvious to most that a job which requires officers to “protect and serve” the public should be subject to the scrutiny by members of the public being “protected and served,” many law enforcement officials apparently objected to having their public duties recorded.
Thankfully, this dispute over whether the public has a right to record police officers has been decided in favor of an open and accountable government. The New Hampshire Attorney General released a memorandum to all law enforcement agencies in the State making it clear that citizens have a right to record police officers conducting official duties, so long as the recording does not actually interfere with the performance of those duties. Embarrassment at being on film does not constitute interference – it would have to be something like the cameraman getting in the way of an officer making an arrest.
The Attorney General’s memorandum was issued in the wake of an Order issued by the U.S. Court of Appeals for the 1st Circuit in the case of Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011). The Court of Appeals held that citizens have rights under the First and Fourth Amendments to the U.S. Constitution to record government officials during the performance of their official duties.
Such recording does not violate New Hampshire’s wiretapping statute. Prior to the Attorney General’s memorandum, police departments were relying on the “two party consent” rules of the wire-tapping statute to arrest people who recorded officers’ voices without their consent. The wiretapping statute was not intended to protect people, and especially not public officials doing their jobs, who are out in public speaking where they do not have a reasonable expectation of privacy. It was intended to protect truly private conversations, held out of easy earshot of others.
While the Glik case and the Attorney General’s memorandum are welcome, if overdue, vindications of the right to hold government officials accountable for their actions – good or bad – some officers have begun to come up with creative ways to circumvent citizens’ constitutional rights. For instance, a San Diego police officer recently ordered a person to stop recording an encounter, claiming that his cell phone could be a “weapon.” http://fox40.com/2013/04/10/cop-calls-phone-a-weapon-tells-man-to-stop-recording/.
Officers doing their jobs in an accountable, above-board manner have nothing to fear from being recorded. Most officers actually welcome it, because it keeps the person they are interacting with as honest as they are. It is the officers who do not want to be recorded that most need to be. As the conduct of the San Diego officer shows, we will all need to remain vigilant to avoid efforts to violate our fundamental rights to hold our government officials accountable.
If you believe your rights have been violated, you should consult an experienced lawyer at Douglas, Leonard & Garvey, P.C. at 1-800-240-1988 or fill out our online contact form for a case evaluation.
Tags: Concord New Hampshire attorney, Concord New Hampshire lawyer, Douglas Leonard & Garvey, New Hampshire Attorney General, police officer, video-taping, wiretapping
Posted in Blog, Civil Rights | Comments Off
Wednesday, April 10th, 2013
Attorney Richard Lehmann of Douglas, Leonard & Garvey, P.C. represents the Colby-Sawyer College student who alleged that former Police Chief David Seastrand of New London Police Department asked her to pose nude in exchange for dropping charges against her.
Our firm has been contacted by several other women alleging complaints against David Seastrand. Douglas, Leonard & Garvey, P.C. is actively and aggressively continuing to investigate allegations of impropriety involving former New London Police Chief David Seastrand.
If you are aware of any misconduct similar in nature to the events described in recent news coverage, please contact our office as soon as possible at (603) 224-1988. We would be interested in speaking with you.
Click
here to read more in
Union Leader.
Click
here to read more in
Concord Monitor.
Click
here to watch WMUR news coverage.
Thursday, April 4th, 2013
By Richard J. Lehmann – New Hampshire Criminal Attorney
Last week, the New York City Police Department issued a statement revealing that it had received a scanning machine that reads terahertz — the natural energy emitted by people and inanimate objects — and allows police to view concealed weapons from a distance. The device, which fits inside the trunk of a car and can be easily transported, may be coming to New Hampshire. But does the use of such a device, without probable cause or any other reason to believe that the person being scanned has done anything wrong, violate the
Fourth Amendment’s prohibition on unreasonable searches and seizures?
A scanning machine that reads terahertz — the natural energy emitted by people and inanimate objects — and allows police to view concealed weapons from a distance
In the landmark decision
Kyllo v. United States, the police used a different type of scanner to view thermal radiation emitting from a home. Police subsequently obtained a search warrant based on information gained from the scanning device, and found that the homeowner was using grow lights to cultivate marijuana in his home. The homeowner was convicted of possessing marijuana and appealed his conviction to the United States Supreme Court. In a razor-thin 5-4 decision, the Supreme Court reversed his conviction, finding that a person has an expectation of privacy in his or her home, and that the use of the thermal imaging device intruded upon that expectation of privacy. The case also expressed a prescient concern about the future ability of technology to allow the government to intrude upon the privacy of citizens.
The use of portable scanning devices to determine whether citizens are carrying concealed weapons raises similar concerns. New Hampshire, like New York, prohibits the carrying of concealed weapons without a permit. While permits are more easily obtained in New Hampshire, both states have permit requirements and both states punish violations with possible jail time.
The Constitution protects your right to remain from invasions of privacy by the police If you have been charged with a crime or believe your rights have been violated, you should consult an experienced criminal lawyer at Douglas, Leonard & Garvey, P.C. at 1-800-240-1988 or fill out our online
contact form for a case evaluation.
Tags: concealed weapons, Concord New Hampshire attorney, Concord New Hampshire lawyer, Constitution, Douglas Leonard & Garvey, Fourth Amendment, scanning devices
Posted in Blog, Civil Rights, Criminal Defense | Comments Off
Thursday, January 10th, 2013
By Jason R.L. Major – New Hampshire Civil Attorney
What rights do you have if you are subjected to a baseless legal claim? What can you do to recover the thousands of dollars of legal fees and time spent defending yourself from a frivolous lawsuit or a vindictively-filed criminal charge? The answer is a claim for “malicious prosecution.”
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Tags: bad faith, Concord New Hampshire attorney, Concord New Hampshire lawyer, douglas leonard and garvey, frivolous, malice, malicious prosecution
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Wednesday, December 26th, 2012
By Richard J. Lehmann – New Hampshire Criminal Attorney
The expanding use of technology in our lives has challenged the law to address issues that were unimaginable to the drafters of the Constitution and the Bill of Rights. The Fourth Amendment protects us from unreasonable searches and seizures by the government. A recent decision by Judge Posner, a highly regarded judge on the Seventh Circuit Court of Appeals in Chicago, addressed the question of whether the police may conduct a search without a warrant and look at the recently called numbers list in an arrested person’s cell phone.
The case
United States v. Abel Flores-Lopez was a federal drug prosecution. Police arrested the defendant and seized his cell phone. Then without a warrant, the police searched the cell phone’s listing of recently called numbers. By learning those numbers, police were able to conduct further investigation that ultimately implicated the defendant in additional drug activity, for which he was eventually convicted and sentenced to prison.
The defendant tried to have the evidence kept out or suppressed, claiming that the warrantless search of the cell phone violated his right to be free from unreasonable seizure under the Fourth Amendment.
The court started by recognizing that a cell phone is really a computer. It is also, the court wrote. “a diary writ large.” Despite acknowledging that a warrant is required to search a computer or to read someone’s diary, and that computers and diaries can contain huge amounts of personal information, that the degree of intrusion, combined with the fact that many cell phones can be remotely “wiped” clean of any information at all, justified allowing the police to conduct warrantless searches of lists of recently called numbers.
Privacy and the right to remain free from unreasonable searches and seizure is not just important to drug dealers. All of us have an interest in protecting our privacy from government intrusion. The people who wrote our Constitution understood this.
Just how far the police can go in searching your electronic devices for information is a question that will have to be resolved through the development of precedent in this rapidly evolving, specialized field. Anyone who finds themselves caught up in a similar situation should immediately consult with a lawyer with expertise in this area, such as the criminal and civil rights lawyers at Douglas, Leonard & Garvey, P.C. at 224-1988 or fill out our online
contact form.
Tags: cell phones, Concord New Hampshire attorney, Concord New Hampshire lawyer, criminal defense, douglas leonard and garvey, Fourth Amendment, illegal search, privacy
Posted in Blog, Civil Rights, Criminal, Criminal Defense | Comments Off
Tuesday, December 4th, 2012
By Jason R.L. Major – New Hampshire Employment Lawyer
So what rights do you have as an “at-will” employee, if your boss can terminate you arbitrarily for no reason at all? Even at-will employees are protected by certain exceptions to the “at-will” rule, and also by specific State and Federal employment statutes.
The primary exception to the “at-will” rule under State law is the legal concept of “wrongful termination.” It is important to understand that “wrongful termination” does not equal “unfair termination.” It is a legal claim with a very specific set of elements that must be proved: You have to show that you were (a) terminated (b) in bad faith, for (c) performing an act that public policy would encourage, or refusing to perform an act that public policy would condemn. In other words, you have to show that you took a stand on something important, like safety, health, or illegal conduct, and that your employer fired you because of it.
Statutory exceptions to the “at-will” employment rule under New Hampshire law include the
Whistleblower’s Protection Act (which works similarly to the concept of “wrongful termination,” but requires you to report unlawful conduct by your employer to have a claim), and the
N.H. Human Rights Act, which prohibits discrimination against certain protected categories of employees (i.e., gender, age, race, religion, sexual orientation, and disability).
Under Federal law, employees may not be terminated due to unlawful discrimination on the basis of race, gender, age, disability, or exercise of their rights under the
Family Medical Leave Act (FMLA).
If you believe you are the victim of wrongful termination, you should consult an experienced employment attorney such as one of the attorneys at Douglas, Leonard & Garvey, P.C. Call us at 1-800-240-1988 or fill out our online
contact form.
Tags: at will employee, bad faith, Concord New Hampshire attorney, Concord New Hampshire lawyer, concord nh employment attorney, concord nh employment lawyer, employment law, Family Medical Leave Act, FMLA, Whistleblower, Whistleblower Protection Act, wrongful termination
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Thursday, November 8th, 2012
By C. Kevin Leonard – New Hampshire Personal Injury Attorney
Recently, a New York court limited a defendant’s access to an injured party’s social media accounts and postings. In Kregg v. Maldonado, the Appellate Division, Fourth Department, the defendant requested all social media accounts used or maintained by the plaintiff, who was involved in a motorcycle accident.
The defendant sought the “entire contents” from the plaintiff’s Facebook and MySpace accounts and any internet postings made in connection with those accounts. The plaintiff objected on the grounds of relevancy and stated that the request for the records was a “fishing expedition.”
The Court ruled that the defendant’s request was overbroad. In this case, there was no issue that any information in the social media accounts contradicted the plaintiff’s claims for damages. Instead, the Court held that the defendant needed to narrowly tailor its request to social media information that relates to the claimed injuries from the accident.
We have warned in many blogs on our website that defendants in personal injury cases demand access to a party’s social media accounts. This case, while correctly decided in my opinion, is another warning that anything you write or post on the internet may be discoverable in your case – and used against you.
Fighting for your rights in a New Hampshire car accident case takes an experienced lawyer. If you or someone close to you has been injured, please call Douglas, Leonard & Garvey, P.C. at 1-800-240-1988 or fill out on online contact form.
Tags: Automobile Accidents, Concord New Hampshire attorney, Concord New Hampshire lawyer, Concord NH Personal Injury Attorney, concord nh personal injury lawyer, Douglas Leonard & Garvey, Facebook, internet postings, Myspace, social media, social networking
Posted in Automobile Accidents, Blog, Civil Rights, Motorcycle Accidents, Personal Injury | Comments Off
Thursday, October 25th, 2012
By Jason R.L. Major – New Hampshire Civil Litigation Attorney
A lot of clients we represent at Douglas, Leonard & Garvey involve claims against municipalities. Many of the claims are employment-related, and many are related to police misconduct. Litigating against government defendants involves challenges that do not arise in more difficult than making a claim against a private organization, because towns and cities and their officials are shrouded in many layers of immunities from suit. The included so-called “official immunity,” “discretionary function immunity,” “qualified immunity,” “
” and others.
Recently, municipalities have been asserting a claim for immunity under RSA 507-B. RSA 507-B is a statute that was enacted to regulate claims against municipalities. It was enacted in the wake of a 1974 N.H. Supreme Court case captioned Merrill v. Manchester. In the Merrill case, the Supreme Court struck down “blanket” immunities protecting municipalities that had their roots in the old concept of “sovereign immunity” – literally that “the king could do no wrong.” However, the Court allowed the State Legislature to enact reasonable limitations on suits against municipalities, including damages caps. RSA 507-B was the Legislature’s attempt to put the Court’s “reasonable limitations” into practice.
Unfortunately, RSA 507-B contains some poorly worded sections that, when read together, could be read as prohibiting any claims that were not based on a municipality’s use or maintenance of its vehicles or premises. Of course, if the statute were read that way, it would lead to the unreasonable sort of “blanket” immunity that was struck down by the Supreme Court in Merrill. Nevertheless, municipal defendants have seized upon the confusing language of the statute in an attempt to shield themselves from liability.
Plaintiffs with claims against the municipalities have recently turned the tables though. In a recent decision from the U.S. District Court for the District of New Hampshire, captioned John Farrelly v. City of Concord, et al., Magistrate Judge Landya McCafferty ruled that the defendant’s “blanket immunity” interpretation of RSA 507-B was wrong, and held that the City defendants did not have immunity from suit under this section. The defendants in that case have requested that the District Court certify a question to the New Hampshire Supreme Court asking whether the District Court’s interpretation of the statute is correct.
In another case before the U.S. District Court for the District of New Hampshire, Huckins v. McSweeney, et al., Judge Joseph DeClerico has decided to certify to the New Hampshire Supreme Court the question of whether the Town of Sanborton’s “blanket immunity” interpretation of RSA 507-B is constitutional. The plaintiff in this case is represented by Douglas, Leonard & Garvey, P.C. We are confident that the Supreme Court will uphold its decision in Merrill v. Manchester and rule that the defendant’s interpretation of RSA 507-B is incorrect and, even if the statute could literally be interpreted as the defendants wish, that doing so would lead to an unconstitutional result.
This is good news for plaintiffs with claims against municipalities. In a few months there will likely be one less immunity hurdle to overcome in order to successfully obtain recoveries in their cases.
If you think you have a case against a municipality, please contact Douglas, Leonard & Garvey, P.C. at 1-800-240-1988 or fill out our online contact form to see if one of our experienced civil litigation lawyers may be able to help you.
Tags: Concord New Hampshire attorney, Concord New Hampshire lawyer, discretionary function immunity, Douglas Leonard & Garvey, new hampshire employment law, new hampshire employment lawyer, NH Legislature, nh municipalities, prosecutorial immunity, qualified immunity
Posted in Blog, Civil Rights, Employment Law, Municipalities | Comments Off
Wednesday, October 10th, 2012
By Charles G. Douglas – New Hampshire Employment Law Attorney
With the changing demographic nature of our nation’s population, it was inevitable that at some point a white employee would be able to claim harassment because of her race. In a case earlier in September this year the United States Equal Employment Opportunity Commission announced a settlement by a former assistant prosecuting attorney in Hawaii who claimed she was discriminated against because she was white.
The prosecutor, Ms. Weigel, had worked on the island of Kauai in an office where her supervisor continually made disparaging comments that Weigel needed to “assimilate into the local culture.” She was told to dump her white boyfriend in favor of a local man.
The supervisor would talk about how staff who were white had to stop acting the “haole” way and act more like the local Hawaiians. The workplace harassment rose to such a level that the tension between Ms. Weigel and her boyfriend caused them to break up and she ended up moving back to the mainland.
The County agreed to compensate her $120,000 and to establish policies and training to make sure that whites would not be subjected to harassment.
The discrimination laws cut in both directions and it is obvious that as workforce populations change, racial discrimination victims may change with it. We represent employees of all types who are discriminated against in the workplace. If you feel you have been discriminated against, please contact one of our employment attorneys at 1-800-240-1988 or complete our online contact form.
Tags: Concord New Hampshire attorney, Concord New Hampshire lawyer, Douglas Leonard & Garvey, EEOC, employment discrimination, new hampshire employment law
Posted in Blog, Civil Rights, Discrimination, Employment Law | Comments Off
Tuesday, September 18th, 2012
By Richard J. Lehmann –
New Hampshire Employment Lawyer
The Americans With Disabilities Act (“ADA”) protects employees from being fired, demoted, or denied promotion based on physical or mental disability. Questions about ADA protections often arise when an employer uses physical or mental tests or evaluations to make hiring or promotion decisions.
The basic rule is that employers may use medical tests or exams when the physical or mental characteristic being tested is related to the job to be performed and is a business necessity. For example, fire fighters typically have to pass periodic physical tests to ensure that they are capable of performing the physical work required for their job. A fire fighter who is unable to carry hoses, breathing apparatus, and other equipment is unable to perform the main function of the job. That kind of physical test is permissible.
What is not allowed, however, is for employers to test their employees for characteristics that are not directly related to the job. For example, it is completely irrelevant if a telephone operator is unable to run a ten-minute mile. Testing a physical limitation when the job does not require physical skills violates the ADA.
A closer call can arise when employers use mental evaluations to establish personality traits. These tests are becoming more and more common during the hiring phase and even when employers consider candidates for promotion. Psychological tests that measure personality traits, such as honesty, preferences, and habits are permitted. However, psychological tests that are designed to identify a mental disorder or impairment are medical examinations and are prohibited by the ADA.
Employers may have many reasons to want to know about an employees medical or psychological condition. Some of these are valid and others violate the ADA. Determining whether a particular test is allowed under the law requires a complicated balancing of factors. If you have questions about physical or mental tests or examinations at work, you should consult with an experienced employment lawyer.
If you are having problems with an employer requiring you to take tests, please contact us at 1-800-240-1988 or fill out our online contact form to see if we can help.
Tags: ADA, Americans With Disabilities Act, Concord New Hampshire attorney, Concord New Hampshire lawyer, concord nh employment attorney, concord nh employment lawyer, Douglas Leonard & Garvey, new hampshire employment law
Posted in Blog, Civil Rights, Discrimination, Employment Law | Comments Off