North Carolina Voters Must Present IDs at Polls

On March 15, 2016, North Carolina will hold its primary elections for candidates running for various federal and state offices. Primary elections operate differently than general elections. General elections only consist of different candidates, running for the same office, from different political parties or affiliations. However, for partisan, or politically split, races, a primary election must occur first. Primary elections allow for voters to choose one candidate to represent the voter’s political party in the general election. For example, there are currently twelve Republican presidential candidates. Each candidate will be listed on a ballot in the March primary. Voters, who identify their political affiliation as Republican, will vote for one of these twelve candidates to represent the political party as a whole in the general election. The same process will occur for other political parties. Overall, the primary election provides voters with an opportunity to vote for their choice of a political party’s nominees for partisan races. For a list of federal and state offices up for election in 2016, please visit the North Carolina State Board of Election’s 2016 Election Info page, http://www.ncsbe.gov/ncsbe/Elections/Election-Information.

Upon arrival at the polls, North Carolinians will face a few procedural changes. As of January 1, 2016, North Carolina law requires registered voters to present an acceptable form of photo identification to an election official in order to cast ballot. Acceptable forms of photo identification include:

(1) United States passport,

(2) North Carolina-issued driver’s license,

(3) Veterans ID card,

(4) United States Military ID card,

(5) Federal or state-issued tribal enrollment card, or

(6) Drivers license or non-operators identification card issued by another state (only if the voter registered to vote within ninety days of the election).

If a voter does not have an acceptable form of identification, the voter may request, or the county election official may provide, a “reasonable impediment” declaration form. This form is made available to voters who are unable to obtain an acceptable form of photo identification due a reasonable impediment. Reasonable impediments include, but are not limited to, lack of proper documents, lack of transportation, work schedule, illness or disability, and family obligations. Additionally, this form provides an “other” section for voters to indicate other reasons as to why they do not have the specified forms of identification. Once the form is completed, the voter must sign the declaration, and provide his or her birthdate, and last four digits of his or her Social Security number or present his or her current voter registration card or a copy of an acceptable document bearing his or her name and address (e.g. current utility bill, bank statement, or a government-issued document). In the event that the voter does not provide proper identification with his or her declaration form, the voter has up to nine days to return to the county board of elections and present the required identification.

Once this form is completed, the voter will be able to cast a provisional ballot. A provisional ballot is ballot used to record one’s vote, and is not officially counted until questions about the given voter’s eligibility are answered. According to North Carolina law, the voter’s provisional ballot will be counted when the county board of elections verifies the information on the declaration, and all other eligibility requirements are met. However, a county board of election official may not count a voter’s provisional ballot under four circumstances. First, the provisional ballot may not be counted if the county board of elections has grounds to believe that the reasons listed on the declaration are factually false, criticizes the photo identification requirement, or are obviously non-sensical statements. Second, a provisional ballot may not be counted if the voter failed to include the last four digits of his or her Social Security number and date of birth, or his or her voter registration card, or other acceptable documents. Third, the county election official was unable to use the voter’s information to confirm the voter’s registration information. Lastly, if the voter is disqualified for some other reason by provided by law, his or her provisional ballot will not be counted.

Although it is not required to have a lawyer to accompany you to the polls, it is important to understand North Carolina election laws, your rights as a voter, and the options that are available to you at the polls, if you do not possess an acceptable form of photo identification. By knowing your rights to civic participation, you can recognize when those rights have been violated. For more information about the Voter ID law, you can visit http://voterid.nc.gov/index.html. Learn Your Rights 101.

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Small Claims Court in North Carolina

In North Carolina, Small Claims Court is where people settle disputes regarding property or money with a value of $10,000 or less. There is no jury, but there are judges called magistrates that govern the proceedings in Small Claims Court.

In order to file a claim, the plaintiff must pay $96 and an additional $30 to serve the defendant by sheriff unless the plaintiff chooses to serve the defendant by certified mail with return receipt requested. On the other hand, a person that cannot afford to pay the filing fee may file a Petition to Sue as an Indigent.

The complaint should be filed in the office of the Clerk of Superior Court in the County where either the defendant resides or in a county where your the acts that justify your lawsuit occurred. Moreover, the complaint should explain who you are suing, where the defendant lives or does business, what the defendant owes you, and why the defendant owes you. Do not forget to clearly state what relief you are seeking from the court.

At trial, the parties receive an opportunity to present evidence and have witnesses testify based on their personal knowledge. After both parties have presented their cases, the magistrate will usually make decision. However, the magistrate has up until 10 days from the date of trial to make a decision. If a party is unhappy with the magistrate’s decision, it may appeal the case to district court after paying the clerk a fee of $92.

Many people attempt to navigate Small Claims Court without a lawyer, but as stated above, there are procedural rules that must be followed in order to get your case inside of the courtroom. Moreover, it important to know the relevant substantive law so that the proper evidence is submitted in court to help prove your case. Therefore, it is advisable to retain a lawyer to assist you with your lawsuit. Learn Your Rights 1o1.

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Happy New Year!

Hello all! 2015 was a great year for Anthony Burts, the author and founder of Learn Your Rights 101. After finishing law school at the NCCU School of Law, he passed the July 2015 bar exam and was subsequently affirmed as a licensed attorney. Learn Your Rights 101 looks forward to providing you all pertinent general information about your various rights in 2016. Learn Your Rights 101.

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The Fleeing Felon Rule: Tennessee v. Garner Revisited After SC Officer Shoots Walter Scott

Michael Slager, a South Carolina officer has been charged with murder after a video went viral that appeared to show him shooting an unarmed man who was running away. A man, identified as 50-year-old Walter Scott, broke away from the officer. At that point, something fell, Mr. Scott ran away and the officer fired eight shots at him.

Discussions about whether Officer Slager’s actions were reasonable have surfaced throughout the United States. At common-law, the fleeing felon rule permitted the use of deadly force against a felon who was clearly in flight from apprehension. However, the legality of the fleeing felon rule was undermined by the Supreme Court of the United States in Tennessee v. Garner.

In Tennesse v. Garner, officer Elton Hymon responded to a nighttime residential burglary call. On arrival, the officer heard a door slam and saw an individual run across a backyard. When the officer directed his flashlight into the yard, he saw the suspect, Edward Garner, crouched near a chain link fence. The officer believed that the suspect was approximately seventeen or eighteen years old and unarmed. After the officer identified himself and called for Mr. Garner to halt, Mr. Garner leapt to clear the fence. Since the officer thought that Garner would otherwise escape, he shot and killed Mr. Garner.

The Court held that the Fourth Amendment prohibits the use of deadly force to apprehend a fleeing felon “unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officers or others.” Furthermore, the Court noted that Officer Hymon “could not reasonably have believed that Garner—young, slight, and unarmed—posed any threat.” Thus, the Court in Garner struck down the common-law rule, which allowed the use of deadly force whenever necessary to effectuate the arrest of a fleeing felon.

If this case goes to trial, the issue will be whether or not Officer Slager had probable cause to believe that Mr. Scott posed a significant threat of death or serious injury to him or others. Based on the preliminary facts of this case, it seems that since Mr. Scott was unarmed and ran away from Officer Slager, he posed no threat to the officer. Therefore, under the Garner Courts holding, Officer Slager’s actions seem to have been overwhelmingly and exceedingly unreasonable. Learn Your Rights 101.

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Texting and Driving in North Carolina

 According to the National Safety Council, one in every four car accidents are the result of texting and driving. Also, texting and driving makes an accident more than four times more likely to happen. North Carolina enacted N.C. Gen. Stat. § 20-137.4A in order to deter its citizens from texting and driving.

The Law

Under North Carolina’s Motor Vehicle Act, it is unlawful for a person to operate a vehicle on a public street, highway or public vehicular area while using a mobile telephone to:

  1. Manually enter multiple letters or text in the device as a means of communicating with another person; or
  2. Read any electronic mail or text message transmitted to the device or stored within the device, provided that this prohibition shall not apply to any name or number stored in the device nor to any caller identification information.

Exceptions

A person cannot be found in violation of this law if their vehicle is lawfully parked or stopped. Similarly, a person can use factory-installed or aftermarket global positioning systems (GPS) or wireless communications devices used to transmit or receive data as part of a digital dispatch system as well as use voice operated technology.

Violation of this law is an infraction and shall be punishable by a $100 fined and court costs. Even though this may seem slight to some, one may be subjected to a civil negligence lawsuit if he or she causes an accident as a result of texting and driving. The best way to avoid violating the statute is to wait until your vehicle is lawfully parked or stopped to enter letters or text into your cell phone or to read text messages or emails. Learn Your Rights 101.

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Young v. UPS: A Victory for Pregnant Workers

On March 25, 2015, The Supreme Court of the United States held that a plaintiff can demonstrate a genuine dispute as to whether an employer violates the Pregnancy Discrimination Act (PDA) where her employer treats pregnant workers less favorably than its treats non-pregnant workers that are similar in their ability or inability to work.

Who is Peggy Young and Why Did She Sue UPS?

Peggy Young, the petitioner in this case, worked as a part-time driver for the respondent,  United Parcel Service (UPS). Her job required her to be able to lift packages that weighed up to 70 pounds as well as packages that weighed 150 pounds with assistance. However, after she became pregnant in 2006, her doctor told her that she should not lift more than 20 pounds during the first 20 weeks of her pregnancy or more than 10 pounds after that.

In response, UPS told Ms. Young that she could not work while under a lifting restriction. She then stayed home without pay during most of the time that she was pregnant and later lost her employee medical coverage. As a result, Ms. Young sued UPS in federal court after receiving a right to sue letter from the Equal Employment Opportunity Commission.

Ms. Young claimed that her co-workers were willing to help her lift heavy packages. She also said that UPS accommodated other drivers who were similar in their ability to work. For example, UPS (1) provided temporary alternative work assignments to employees unable to perform their normal work assignments due to an on the job injury, (2) made reasonable accommodations for those disabled under the Americans with Disabilities Act, and (3) provided “inside” jobs for employees that had lost their Department of Transportation certifications because of a failed medical exam, a lost driver’s license, or their involvement in a motor vehicle accident.

Procedural History

The U.S. District Court granted summary judgment in favor of UPS. It found that Ms. Young had failed to establish her prima facie case (a fact presumed to be true unless it is disproved) of discrimination under the Pregnancy Discrimination Act. The Fourth Circuit Court of Appeals upheld the district court’s ruling.

The Pregnancy Discrimination Act

Title VII forbids discrimination against any individual with respect to employment because of such individual’s sex. In 1978, Congress enacted the Pregnancy Discrimination Act by adding new language to Title VII’s definitions section.  Under 42 U.S.C. §2000e(k), the first clause of the 1978 Act specified that the “term ‘because of sex’ . . . included . . . because of or on the basis of pregnancy, childbirth, or related medical conditions.” The second clause states that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.”

The Second Clause

In this case, the Supreme Court of the United States primarily based its analysis around the second clause. Ultimately, the Court looked at why Congress enacted the second clause. It noted that Congress enacted the second clause in order to overturn both the holding and the reasoning of the Supreme Court’s decision in General Electric Company v. Gilbert. In Gilbert, a company plan provided non-occupational sickness and accidents benefits to all employees without providing disability-benefits payments for any absence due to pregnancy. The Court held that the plan did not discriminate on the basis of sex because there was no risk from which men were protected and women were not. Furthermore, the Court believed that even though pregnancy is confined to women, it was not comparable to the diseases or disabilities that the plan covered.

Here, in Young, the Court reasoned that simply including pregnancy among Title VII’s protected traits would not overturn the ruling in Gilbert and would not respond to the Gilbert Court’s determination that an employer can treat pregnancy less favorable than disease or disabilities resulting in a similar inability to work. The Court also noted that “the first clause of the [Act] reflects Congress’ disapproval of the reasoning in Gilbert” by “adding pregnancy to the definition of sex discrimination prohibited by Title VII.” Furthermore, the Court in Young reiterated that the second clause of the Act was intended to overrule the holding in Gilbert and to illustrate how discrimination against pregnancy is to be remedied.

How Can a Pregnant Worker Now Show Intentional Discrimination?

In Young, The Supreme Court held that a plaintiff who alleges that the denial of an accommodation constitutes disparate treatment (intentional discrimination) under the Pregnancy Discrimination Act’s second clause may make out a prima facie case by showing:

  1. that she belongs to a protected class;
  2. that she sought accommodation;
  3. that the employer did not accommodate her; and
  4. that the employer did accommodate others similar in their ability or inability to work.

Next, if the pregnant worker is able to establish a prima facie case, the employer may then seek to justify its refusal to accommodate the plaintiff by relying on a legitimate, non-discriminatory reasons for denying her accommodation. However, the Court cautioned that employers’ reasons generally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of other people that the employer accommodates. If the employer offers an apparently legitimate, nondiscriminatory reason for its actions, the employee may then show that the employer’s reasons falsely hide their true discriminatory intentions.

Here, the Supreme Court vacated the Fourth Circuit’s decision and remanded the case. Under the Federal Rules of Civil Procedure, a party is entitled to summary judgment if there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Upon reviewing the record in the light most favorable to Ms. Young, the Court determined, unlike the Fourth Circuit, that there was a genuine issue of material fact as to whether UPS provided more favorable treatment to employees whose inability to work was similar to Ms. Young’s (the fourth prong of the the test above). Thus, on remand, the Supreme Court instructed the Fourth Circuit to consider the combined effects of UPS’ policies as well as the strength of UPS’ justifications for each policy.

Why is This a Victory for Pregnant Workers?

The Supreme Court’s holding in Young is a win for women because it lowered the burden for pregnant workers and raised the burden for employers to overcome. Moving forward, it appears that it will be easier for plaintiffs to succeed in pregnancy discrimination and accommodation claims, or at least, get their cases to a jury. Furthermore, policies that negatively impact pregnant employees where there is evidence that the requested accommodations have been provided to non-pregnant workers and not pregnant workers, are likely to be considered unlawful.

In addition, the Pregnancy Discrimination Act is not the only law that requires employers to accommodate pregnant workers. In 2008, Congress amended the Americans with Disabilities Act  to require employers to provide necessary accommodations to pregnant workers with pregnancy-related conditions that meet the definition of “disability.” The 2008 amendment to the Act did not apply in this case because it was enacted after the case was filed. Moving forward, employers should review their policies and ensure that they are appropriately accommodating pregnant workers. Learn Your Rights 101.

 

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Resisting Arrest 101

Thousands of people are charged with resisting a public officer every year. North Carolina’s law relating to resisting arrest is pretty broad. According to NCGS § 14-233, “[i]f any person shall willfully and unlawfully resist, delay or obstruct a public officer in discharging or attempting to discharge a duty of his office, he shall be guilty of a Class 2 misdemeanor, punishable by up to 60 days in jail. Moreover, any conduct that obstructs or delays an officer in the discharge of his or her duties also falls within the meaning of the statute.

To support a conviction of resisting, delaying, or obstructing an officer in the performance of his or her duties, the state only needs to prove that a defendant acted willfully in obstructing or interfering with the officer. According to the North Carolina Supreme Court, a person interferes with an officer when he or she “check[s] or hamper[s] the action of the officer, or [does] something which hinders or prevents or tends to prevent the performance of his legal duty.” The North Carolina Supreme Court also defined ‘obstruct’ as “direct or indirect opposition or resistance to the lawful discharge of his official duty.”

Verbal communications can be considered resisting, delaying or obstructing an officer

Actual physical force or assault is not necessary to support a conviction of resisting, delaying, or obstructing an officer. Furthermore, according to the holding in State v. Singletary, words alone may be enough to violate the statute.

Is asserting your rights considered resisting, delaying, or obstructing an officer?

Under the holding set forth in State v. Cornell, a citizen may not be arrested for resisting, delaying or obstructing a police officer “when merely remonstrating [or protesting] with an officer or criticizing or questioning an officer while he is performing his duty when done in an orderly manner.” Additionally, communications intended merely to assert rights, clarify a misunderstanding, or gain information in a peaceable and orderly manner, are not banned by the statute

Defense to a charge of resisting, delaying, or obstructing an officer

Under North Carolina law, a person has the right to resist an unlawful arrest.  Keep in mind that even though a person has the right to resist an unlawful arrest by the use of force, a person resisting an unlawful arrest by force may use only such force as reasonably appears to be necessary to prevent the unlawful restraint of his or her liberty.

For example, in State v. Branch, a police officer pulled over a man in a high crime area and asked for his license and registration.  Once a check of the man’s information came back okay, the police officer asked for the man’s consent to search his vehicle. The man then refused and the police officer informed the man that he would call for a canine unit. After a few moments the man sped off while the police officer’s hand was inside of the man’s vehicle. The man stopped his car after driving approximately 800 feet. The police then searched his vehicle and found marijuana.

At the man’s hearing to suppress the evidence of marijuana, the trial court found that the officers “had no lawful authority to try to detain the vehicle and the defendant at the scene,” because they lacked sufficient evidence “to create a reasonable and articulable suspicion” that Defendant was engaged in criminal activity after finding that Defendant’s license and registration were in order. However, although the trial court noted that Defendant had the right to “use reasonable force to resist an unlawful detention,” the trial court also found that “a reasonable person should have known that accelerating rapidly while the officer was reaching inside your vehicle would jeopardize the officer’s safety and indeed his life.”

Accordingly, the trial court concluded that the defendant had “reacted with more force than was reasonably permitted to resist the unlawful detention by the officers.” Moreover, the court found that the officers had probable cause to arrest the defendant for assault, and the later search of his vehicle was lawful pursuant to that arrest. The trial court denied the defendant’s motion to suppress, and the defendant then pled guilty to possession of marijuana and assault on a government officer. On appeal, the North Carolina Court of Appeals upheld this decision.

In conclusion, North Carolina’s resisting arrest law is broad and a person can be found in violation through both verbal and non-verbal conduct. Additionally, a person has the right to resist an unlawful arrest, but that person’s resistance must be reasonable under the circumstances. Speaking and acting in an orderly fashion while interacting with public officers are the best ways to avoid being charged and arrested for resisting arrest. Learn Your Rights 101.

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Social Security Disability 101

In the United States, there are an estimated 49 million people with some form of disabling condition. For those that are unable to earn a living, congress has given the Social Security Administration the power to administer programs such as Social Security Disability (SSD) and Social Security Income (SSI).

What are the differences between entitlement to SSD or SSI?

On one hand, Social Security Disability requires that a person must have earned enough money and paid in enough Social Security to become “insured” and claim Social Security Disability. On the other hand, SSI does not require that a person ever have worked, but instead requires a showing of financial hardship. It is also possible that some people may qualify for both programs.

What is a disability according to the government?

Both Social Security Disability and Social Security Income take on the same definition of disability. Under 42 USC §§ 423 (d)(1)(A) and 1382c(a)(3)(A), disability is “the inability to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to either result in death or last at least 12 months.”

The Social Security Administrations disability evaluation process

In determining whether a person is disabled, the Social Security Administration (SSA) uses a five step “Sequential Evaluation” process:

  1. Is the claimant currently engaged in substantial gainful activity?
    • If yes, the SSA will conclude that a person is not disabled.
    • If no, then go to question #2.
  2. Does the claimant have any severe impairment?
    • If no, the SSA will conclude that a person is not disabled.
    • If yes, then go to question #3.
  3. Does the claimant have any impairment which meets or equals those contained in the listing of impairments?
    • If yes, the SSA will conclude that a person is disabled.
    • If no, go to question #4
  4. Does the claimant have any impairment which prevents his or her past relevant work?
    • If no, the SSA will conclude that a person is not disabled.
    • If yes, then go to question #5.
  5. Does the claimant’s impairment prevent him from doing any and all other work?
    • If yes, the SSA will conclude that a person is disabled.
    • If no, then there is no disablement.

An application for benefits can be completed at any Social Security Office, through mail, via telephone (1-800-772-1213) or online. For more information on the Social Security Administration, visit www.socialsecurity.gov. Learn Your Rights 101.

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NC Attorney General’s Offices Investigating a Questionable CIAA Service Charge

The NC Attorney General’s Office is investigating why the Ritz-Carlton imposed a 15 percent service charge on guests of the hotel’s lounge during last month’s CIAA basketball tournament.

If you still have your receipts from the weekend, check them to make sure that you were not similarly charged a “CIAA Service Charge” for attending an event during the CIAA tournament. If you find that you were, make sure that you convey that information to the NC Attorney General’s Office.

For more information, visit http://www.charlotteobserver.com/news/local/article13205801.html#storylink=cpy or visit www.ncdoj.gov. Learn Your Rights 101.

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Beware of New Scam Sweeping the Carolinas

Be aware of a new scam in which phone scammers who claim to be from the local power companies threaten service disconnection.

How it works?

Scammers call claiming that your account is delinquent and service will be disconnected unless a payment is made immediately. Scammers often use “spoofing technology,” which makes the caller ID display the name and phone number of the local utility.

North Carolina law enforcement have advised people to not give out money or personal and financial information to those making the calls. Instead customers with questions about their accounts should contact the company at the official number or website known to be valid, which can be found on a bill.

You can also report scams to the Attorney General’s Consumer Protection Division by calling 1-877-5-NO-SCAM (1-877-566-7226), file a complaint online at www.ncdoj.gov or contact their local law enforcement agency. Furthermore, you can find out more about scam alerts by going to the North Carolina Attorney’s General website www.ncdoj.gov/News-and-Alerts/ Alerts.aspx. Learn Your Rights 101.

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