41% error rate in background checks

41% error rate in background checks

This  article explains why you should fear a criminal background check, even if you’ve never done anything wrong.  It documents that at least one study found a 41% error rate in background checks.  Errors that harmed the consumer.

An all too often problem occurs in these hard economic times. The criminal background check. The potential Employer has you sign a document. Granting permission to run a background check. A couple of years ago, you got a misdemeanor. For example, Possession of marijuana. You paid your fine and court costs, contributing to the judicial fund, the court fund, the sheriff’s fund, and went on with your life. Little did you know, an error was made  somewhere along the way and you have been labeled a felon.

A few years down the road, you apply for a job. Sign the permission to run a background check. And are denied the job. For the stated reason there is a felony on your record.  (Note:  the potential employer must first give you the opportunity to correct the flag, if it is in error, before denying you the job).

A felony? But it was just misdemeanor possession of such a small quantity of pot, the judge merely imposed a fine. Not even probation. Now what.

The FCRA (Fair Credit Reporting Act), a federal law codified at 15 U.S.C. § 1681 et seq. applies. Before denying you the job for the felony found on your record, the employer must give you written notice of what the flag was, and the name and address of the company that performed the background check. You have a right to dispute it. Do so. And provide the court record that shows it was a misdemeanor. The company has thirty days to respond. And if the background check company doesn’t respond and doesn’t fix the error, sue them in federal court.

Also. Report the company to the FTC.  For misreporting information on your background whether you sue or not.

For some guidance. Read this information provided by the FTC.

The imaginary “check em out” exception to the Fourth Amendment

The imaginary “check em out” exception to the Fourth Amendment

Law enforcement. Once in awhile needs reminders and refresher courses. On the constraints placed on them while on armed patrol in our communities.

There is no exception to the Fourth Amendment that permit hunches, generalized claims of lawlessness and disorder, broad brush strokes of “high crime area” that licenses law enforcement to check things out or perform a look see. With or without a warrant. Law enforcement is not the community baby sitter.  It is an armed, uniformed, trained force.  Authorized to enforce the law  … at gunpoint, and tragically, sometimes, by a gunshot to the head. Police must enforce the law….within the law. The ultimate Freedoms are at stake…not to be confined. And not to be dead.  Thus, law enforcement is subject to strict constitutional constraints. It simply has to be. We are not a militarized society.  As a result, they don’t get to go round just checking up on people.  That is not a legal act of enforcement. That’s babysitting. This ain’t nursery school.  This is our country. And man. We enjoy the greatest freedoms in the world. Let’s keep it that way.

The constitutional requirement of articulable facts of a minimum of reasonable suspicion for an minimal investigatory detention and articulable facts of probable cause for a full blown search of seizure is alive and well. It is the law of the land, including within localized parishes of Louisiana.

“The particular legal issue presented here has long been resolved by the United States Supreme Court in an unbroken line of cases cited often in the well-settled jurisprudence of this State. The issue is simple: Can a police officer conduct an investigatory stop and detain citizens otherwise legally operating motor vehicles on the public highways or private roads in this State solely because past crimes or suspicious activities have occurred in the area where motorists are traveling?

The answer is not even close: “No.”

THERE IS SIMPLY NO “CHECK-EM-OUT” exception to this Constitutional prohibition.

In this case there were no exigencies, i.e. there was no terrorist on the loose, no amber alert, no recent criminal activity in the area, no recent jail-break, no report of a truck matching the description of the one driven by Parker as being involved in any criminal activity. Officer Godwin could articulate nothing to establish a particularized and objective basis for suspecting Parker of criminal activity.” (Emphasis added)


Excerpt from the appeal of a black woman. Who fought a traffic stop. For six years. In Louisiana.

Following are links to this and another  Louisiana appellate decision. Both affirmed the continued viability in this state of the federal constitutional freedom from detentions, searches and seizures, predicated merely on hunches, vague or conclusory claims of high crimes and misdemeanors, and self enobled proclamations to take a “look see” or to “check em out.”

One is a one page grant of a writ which reversed the trial court’s upholding a warrant based on a sheriff’s desire to take a “look see” through a resident’s entire swath of computers and cell phones, including those of his child and wife, because an IP trace of an anonymous whistle blower site which identified some shenanigans within local government led to his home.  For an article on what happened, read this article.   Or this one from Louisiana Voice, by Tom Aswell, who bird dogged what happened.

The other decision, excerpted above, details the six year nightmare of a young black woman whom a deputy just wanted to check out. More details and analysis are available in an article posted by the Marshall Project.





Pleading No Contest or Nolo Contendere

Pleading No Contest or Nolo Contendere

How do you wish to plead? 

“I do not wish to contend.” Defendant who enters a plea of nolo contendere neither admits nor disputes the charge. A plea of no contest allows defendant to avoid admitting facts, which subsequently could be used in another action. Notably, neither a plea of no contest nor a guilty plea per se bars a federal civil rights action for the use of excessive force during arrest.1 While scholars debate the propriety of no contest pleas,2 they remain viable options in all courts, but are always subject to approval by the court.

A no contest plea has the same effect in the criminal prosecution as a guilty plea or conviction. It subjects defendant to the same fines, costs, and forfeitures; it becomes a criminal record.  It may enhance a subsequent sentence. A no contest plea to a felony bars the right to possess a gun. If the charge is a registrable sex offense, all the registration requirements apply. Whatever the effects of a guilty plea or a conviction after trial on the substantive charge are the same for a no contest plea.

The Supreme Court endorses plea bargaining and no contest pleas.3  However, state law (and a court’s own practices) determines whether and how a defendant may plead no contest.  Generally, courts are amenable, but no contest pleas are not a right.  Some judges will not accept such pleas if the prosecution objects or for other reasons. In some jurisdictions, a no contest plea prevents a defendant from admission to any diversion programs. The federal rules allow a nolo contendere plea only if the court considers the parties’ views and the public interest in the effective administration of justice.4

The effects of a no contest plea in a subsequent civil action or on professional licenses varies across jurisdictions, federal and state, and depends on whether the charge was a felony or misdemeanor, and in some jurisdictions, it depends on the seriousness of the charge. Under the federal rules of evidence (and in those states that parallel those rules), a no contest plea is not admissible in a civil action, subject to specified exceptions.5 In California, a no contest plea is deemed a conviction with regard to licensing for pharmacists, but a no contest plea to a misdemeanor cannot be used as evidence against the defendant in a civil case. This is generally the prevailing rule.

While all pleas may be challenged on appeal for voluntariness, the effect on the right to appeal other issues depends on the terms of the plea deal and otherwise varies across jurisdictions.  In Texas, for example, a defendant who entered a no contest plea may appeal only from written pretrial motions actually ruled upon by the court.6 This appears to be the prevailing rule.

The related Alford7 plea differs from the plea of no contest in that the defendant maintains innocence, but acknowledges the prosecution has sufficient evidence to convict at trial. No appeal is allowed, except to challenge the voluntariness of the plea. Most state courts hold that an Alford plea is the functional equivalent of a regular guilty plea, not just in the criminal case, but also in subsequent litigation, criminal or civil. Presently, only Indiana, Michigan and New Jersey, do not allow Alford pleas.

1 Haring v. Prosise, 462 U.S. 306 (1983).
2 See, e.g., Stephanos Bibas, Harmonizing Substantive-Criminal-Law Values and Criminal Procedure: The Case of Alford and Nolo Contendere Pleas, 88 Cornell L. Rev. 1361 (2003) Available at: http://scholarship.law.cornell.edu/clr/vol88/iss5/3
3 See Santobello v. New York, 404 U.S. 257, 260-61 (1971)
4 Fed. R. Crim. P. 11.
5 Fed. R. Evid. 410(a) and (b).
6 Tex. Rules of App. Proc. Rule 25.2(a).
7 North Carolina v. Alford, 400 U.S. 25 (1970).

IMAGE:  Jury box, Howard M. Metzenbaum U.S. Courthouse, Cleveland, Ohio by Carol Highsmith (image is in the public domain)

The psychological torture of unemployment

The psychological torture of unemployment

I received a copy of this study on the psychological effects of being unemployed and underemployed. It resonated with me. I’ve struggled at various times. To survive. I recently wrote about the negative impacts on communities of paramilitary policing and profitizing policing. I’ve also read a study on the true cause of addiction…feeling left out of society as it spins and climbs

I received it…as a member of an email ring for criminal defense lawyers. This was sent to help at sentencing hearings.

As sad as it is, it’s informative and crucial that the word gets out