Tennessee State Senate Bill Regarding Pregnancy Drug Abuse

The Tennessee State Senate now holds a bill that passed the State House that would allow Tennessee authorities to arrest women for damage done to their infants as a result of their drug abuse.  The passage of this bill would reinstate the ability of state authorities to punish pregnant drug abusers, which was taken away two years ago when such criminal penalties were removed from the books.

This should create concern for Tennesseans.  Such action may prevent many people that are drug abusers from seeking professional help for their addictions once they have learned of their pregnancy, thereby putting the mother and the child at greater risk.  Mothers coming off of the addictions without the proper help could become suicidal or go into severe withdrawals, which would put both them and their child at risk, or they may be unsuccessful in their attempts.  Additionally, such legislation may prevent mothers from seeking prenatal help for their children.

Regardless, infants addicted to drugs when they are born pose a major problem that must be addressed.  Many had hoped that a bill labeled as the Safe Harbor Act passed last year would address this issue as it incentivized mothers to get treatment and kick their addiction.  Apparently, many state legislatures are giving up hope on that Act, which many assert has not had enough time to have an impact.

It will be interesting to see how this law can be enacted.  The big questions that remain to be answered are: when would a woman become liable for the damage to a fetus?  Is it with drug abuse after knowledge of pregnancy or after conception?  How does this apply to alcohol abuse?

Stay tuned as we watch to see what actions the Tennessee State Senate will take.

UPDATE - The Tennessee State Senate has now passed this bill and it is on way to the governor.

Immigration Detainers and Governmental Liability When A Person Is Wrongly Held - Galarza v. Szalczyk

In an opinion filed on March 4, 2014, (Galarza v. Szalczyk, Case No. 12-3991) the 3^rd Circuit potentially dealt Immigration and Customs Enforcement (“ICE”) a major blow, subjecting local law enforcement to new litigation and liability, and offered those held on ICE detainers an avenue for relief.

In this precedential decision, the 3^rd Circuit ruled that a plain language reading of the federal law made the ICE Detainer a permissive basis for local law enforcement to extend the detention of individuals in local custody, but stated that the extended detention was not a requirement.  The Court reasoned that ICE could not mandate continued detention through the detainer as doing so would violate the anti-commandeering principle found in the Tenth Amendment to the U.S. Constitution.  As a consequence, the Court removed liability for wrongful detention from ICE and placed it firmly on local law enforcement officials.  To understand the importance of this ruling you must understand the ICE detainer system.

When ICE learns that an individual is in the custody of local law enforcement officials, it has the authority to issue a detainer to the local sheriff’s department requesting that the sheriff’s office notify them when the person has satisfied their terms of imprisonment and retain that individual in custody for 48 hours, allowing ICE an opportunity to take custody of that individual.  This must be broken down a little more in depth for greater understanding.  A person satisfies their terms of imprisonment when they have either completed the sentence of imprisonment imposed by a court or tribunal or posted a bond allowing them to be released from criminal custody. Additionally, it is important to know that the 48 hour period does not include weekends or holidays, and begins running upon the completion of the criminal custody.

With that brief explanation of the ICE detainer, let us now explore what Galarza tells us and the potential impact that it might have.  Currently, many local law enforcement officials are under a belief that the detainer is a federal mandate and will adhere to the detainer even when ICE has not done the same.  Galarza, at least within the 3^rd Circuit, for now, clarifies that this is not the case.  In Galarza, ICE had local law enforcement (Lehigh County) detain an individual following his completion of a sentence on a conviction for a drug crime.  This detention continued for three days beyond the completion of his sentence, and, as it turned out, the individual was a United States Citizen.  Mr. Galarza sued Lehigh County and the county attempted to argue that they were issued the detainer which was mandatory and should exempt them from suit.  The 3^rd Circuit ruling allowed the lawsuit against Lehigh to proceed.

The consequences of this decision are multi-faceted.  First, individuals wrongfully detained on an ICE detainer may have the ability to sue the local law enforcement entities detaining them. This is good news for many as they have been caught in that limbo world of attempting to find out who is responsible for the violation of their constitutional rights. 

As a result of their potential liability, many local law enforcement entities should think long and hard about whether or not they want to comply with an ICE detainer.  In fact, local entities lack the ability in many cases to determine the immigration status of an individual and they are at the mercy of ICE to get it right and do so very quickly.  As a result it is likely that litigation adverse local law enforcement entities may start refusing to cooperate with ICE detainers.  This could be a boon for the immigrant community allowing them to avoid ICE detention.  However, it will likely become much more difficult for ICE to detain potentially dangerous criminals, jeopardizing the safety of our communities.  Regardless, one impact that is will be seen is that ICE will become much more taxed and enforcement initiatives will be much more difficult to attain.           

If you or a loved one are detained by local law enforcement, it is still in your best interest to consult with an attorney trained in immigration law prior to paying a criminal bond.  This ensures that your (or your loved one’s) interests and rights are protected.  

U.S. Supreme Court Ruling on the Right to Possess a Firearm and Misdemeanor Domestic Violence Convictions - United States v. Castleman

Yesterday the United States Supreme Court in United States v. Castleman, 572 U.S. ____ (2014) confirmed what many people feared:  All misdemeanor domestic violence convictions, even in states where no violence is required for a conviction, bar individuals from possessing a firearm.

At issue in Castleman is 18 U. S. C. §922(g)(9), which forbids the possession of firearms by any­one convicted of a “misdemeanor crime of domestic violence.”  Castleman challenged that his conviction did not qualify under this law because Tennessee law did not require an act of violence.  The Court ruled that any conviction that required the use of force would qualify as a misdemeanor domestic violence conviction under 18 U. S. C. §922(g)(9).  The Court's opinion can be found here: United States v. Castleman.

The practical take-away from this decision is that persons convicted of crimes must be proactive to learn exactly what they are or are not allowed to do or possess.  With this specific holding, arguments can easily be made for either side; however, the Supreme Court has spoken, making this holding binding across the land. 

The consequences of even innocent ignorance can be seen with the recent issue here in Grundy County where a man’s firearms were taken from his home because his son, who was on probation and not allowed to be in possession of a firearm, was living in his home.  There were other issues at play in that situation that are not relevant to this blog post, but the lesson to be learned remains.  If in doubt about your rights and responsibilities upon receiving a conviction (or those of family members), consult with an attorney who can explain such.  In all reality, the consequences of a conviction, especially when the result of a plea bargain, should be fully explained to you before the conviction occurs.

Be on the lookout soon for a blog post explaining the far-reaching consequences of convictions and plea bargains on immigration proceedings and why it is so important to be advised of these consequences.  Although post-conviction relief may be available in some situation, it is much better to avoid a situation where this relief is needed. 

Facing criminal proceedings and need legal representation?  Already have a conviction and want to see what its impact will be on your rights and responsibilities?  Contact The Law Office of Russell S. Mainord for a consultation today.  

Why I Offer Free Consultations

Why do I offer free consultations?

Many law offices charge consultation fees for individuals seeking to have their cases evaluated.  The idea is that the law firm is spending time and resources to evaluate your case and that they should be compensated for that time.  However, I do not share this belief.

An individual should never hire an attorney unless they are confident in that person or firm to meet their needs.  Many times, people pay a consultation fee and then hire the attorney because they already have an investment in the services that the attorney is providing; settling for that attorney regardless of their personal feelings for them.  Hiring an attorney, in most cases, is like taking in a family member and you should be very comfortable with that person before you sign a retaining agreement.  Paying a consultation fee, in my opinion, clouds that relationship. 

Furthermore, an attorney should attempt to answer your questions as honestly and quickly as possible.  To meet these needs, you must meet the attorney, discuss your case openly and honestly while the attorney gives honest feedback.  If a consultation fee has been paid, the attorney may feel a compulsion to tell you what you want to hear, take a designated time period to answer your question, or many times leave potential clients with a feeling that they have been taken advantage of.  There have been many times that I have sat across the table from a potential client and informed them that there is nothing that can be done to assist them or I have been able to resolve their situation within a couple of minutes without any costs to myself or the client.  Charging a fee would have left the potential client feeling like they were ripped off and, frankly, I would agree with them.

Legal services should be open and available to all people regardless of financial status.  Charging a consultation fee closes off access to legal services for many people.

When you come to my office for a consultation, you will never pay a consultation fee.  You will come in and sit down with either myself or a member of my staff and have an opportunity to explain your situation and what you are seeking.  I will then evaluate your case, explain the options as I see them, and outline how I can help you meet your needs. I will do my very best to make sure that you do not feel pressured to retain my services unless you feel ready to do so.

Call today to schedule your consultation. 

Madi Rogers 24 Hour Cold Water Challenge Accepted!

I Think I Need A Lawyer ... Now What?

It happens, usually when you least expect it ... you need an attorney.  Now, often, if we believed the movies and books that are so popular these days, the moment when you need an attorney is high action, high drama, everything is an emergency until the case is solved, and solved quickly.  Don't get me wrong, I love these books, movies, and tv shows as entertainment, but I think that they have skewed the view that people have of the practice of law to the point that most people don't know what to expect when the moment occurs that they need an attorney.

People need attorneys for all kinds of reasons; from the most day to day transactions, such as creating a will or drafting a real estate deed to the high drama of a major criminal case, personal injury, etc...  When that moment does occur that you need an attorney, you need someone that you can trust.

So, what can you expect when you need an attorney?  I can't answer for every attorney, but I can tell you how we handle things at The Law Office of Russell S. Mainord.

Usually, first contact is going to be made by either you calling our office or stopping in (we are located in Altamont, TN).  It is most certainly recommended that you call and set an appointment, as that allows us to devote the most undivided attention to your case.  While we take walk-in appointments, without knowing to expect you ahead of time, we cannot schedule accordingly to give you that same level of undivided attention.  When you call to schedule your appointment, we will get your name and contact information and a brief description of what legal matter you are needing assistance with (i.e. divorce, child custody, criminal, immigration, etc...).

When you come to your appointment, bring any documents that you have relating to your legal need(s) with you so that we can evaluate them to properly advise you.  Usually, there will be additional information that we will tell you that we need, but doing this certainly helps speed the process along.  Be prepared to answer questions as we will question you about your (potential) case much the way that you can expect to be questioned in court.  When the initial consultation is done, Russell will advise you as to the course of action that he sees being available for your case and will give you a quote for the legal fee.

Work on your case, and our attorney-client relationship with you begins when you sign the retaining agreement and pay your retainer.  Some cases will be set as a flat fee while others are completed at an hourly rate.  Don't worry, whichever is the situation for you, we will fully explain how everything works.

Assisting you with your legal matters is a partnership.  We work together with you to achieve the best possible solution for your case.  No attorney can promise to always win or that the best possible solution will be your preferred outcome.  But, what we can promise is to work extremely hard to zealously advocate for your interests.  With each step of the way, we will keep you informed, both through talking to you on the phone or in the office and through case update letters.  Although you are welcome to call with questions or concerns, please know that there is no need to call every day for an update, we will update you as there are changes in your case.  It is easy to get anxious and the want to call multiple times a day, but remember that the time spent on the phone is time that we cannot spend on other aspects of your case.  This is a big part of where trust comes in.  The other major area of trust is where we ask you to be completely and totally honest with us.  You must trust us enough to do so as that complete honesty is what allows us to determine that best course of action for your case.

What's the timeline of a case?  It depends on each individual case and its facts.  Cases can take anywhere from a few weeks for a simple matter of drafting a legal document to years.  This goes back to our perception based on books, movies, tv, etc....  Shouldn't everyone be able to take care of a major criminal matter in a matter of days as depicted on shows like The Good Wife?  The timeline of a case can be affected by so many outside factors, but we do our best to advise you as to the normal, average timeline and then to keep you informed as your unique case progresses.

No one wants to think about needing an attorney, but we will all likely need one at some point in our lives.  When you do need an attorney, it needn't be a scary or traumatic experience but, rather, a partnership with a trusted adviser.