The Fourth and Fireworks: A Safety Guide

by Bell Law Firm

image found at: http://petapixel.com/assets/uploads/2009/07/fwfintro.jpg

If you’re like many Tennesseans, this upcoming July 4th will involve “the 3 F’s:” food, family, and of course, fireworks. The simple fact is, few items encapsulate a National holiday more than fireworks do for July 4th. However, that does not mean they are legal where you live. So, before you bulk-buy roman candles, make sure you are aware of your areas local laws regarding the sale, possession, and use of fireworks.

After taking a quick look at firework laws for Tennessee, it’s easy to tell the situation is an absolute mess. Of the 95 counties in Tennessee, all have seemingly managed to create individual laws (or ordinances) for their specific county. In Knox County, for example, it is illegal to purchase, sell, or shoot fireworks. In Loudon County, fireworks are legal to sell but cannot be shot in the city. Some counties permit the use of fireworks year-round, some only from the end of June until mid-July, some only on July 4th, and in some not at all.

For Knoxville residents that purchase fireworks each year, you may be asking yourself how this is possible if they are illegal to sell in Knox County. Enter Lenoir City. There, it is legal to buy, sell and shoot fireworks, which explains the ever-present firework businesses off I-40 near the I-75 split, right past Knox County lines. Avoiding the obvious debate about whether this defeats the purpose of firework laws altogether, the penalty for their use remains in effect: Class 1 misdemeanor with a fine of up to $1000 and/or six months in jail.

Amidst all this confusion, Tennessee state law remains clear: under Tennessee Code § 68-104-115, the state fire marshal is required to seize and destroy all non-Class C common fireworks, now known as “1.4G fireworks”. Since this law is clear, local firework stores will not carry illegal fireworks. But legally purchased fireworks may still get you in trouble, so here are some tips to avoid ruining your independence day with a costly citation.

1. Be Careful. Be Careful. Be Careful. This cannot be stressed enough. In 2013, fireworks accounted for at least 11,400 injuries. An estimated 65 percent of these injuries occurred on the 4th alone. If you plan on shooting off fireworks with your kids, make sure you have control over the situation.

2. Find an open area. According to statistics in 2011, close to a quarter of all house fires in July are a result of fireworks. Being careful involves getting away from property, trees and bushes that can quickly catch fire from an errant bottle rocket. These firework house fires killed 8, injured 40, and resulted in over 32 million in property damage in 2011 alone. Be smart and safe.

3. Be Courteous. Often, police are called to residences because of loud noises – from both people and fireworks – that continue well into the night. Several counties have noise ordinances that go in effect after 10 p.m. or midnight, even on Independence Day. If you want to avoid angering your neighbors and potentially bringing the police to your house, make sure the fireworks are okay with them beforehand.

4. Have Fun. Fireworks or not, the 4th is a fun event for persons of all ages. If fireworks are legal in your area, following simple safety precautions ensure that you can avoid being an injury statistic and still have a blast. Yes, that pun was intended.

This article is geared towards firework information and in no way endorses illegal activity of any kind. If you or a loved one is injured by an errant firework or encounter any other legal issues over the holiday weekend, please contact our office. We will have attorneys on stand-by over the holiday weekend.

James A.H. Bell is the founder of Law Offices of James A.H. Bell, P.C. in Knoxville, TN. Mr. Bell has over 40 years of experience in both criminal and civil litigation and may be contacted by calling 865-637-2900 or by email at jbell@jamesahbell.com. The Bell Law Firm: Client Focused, Court Room Proven.

Clark v. Ohio and its Effect on the post-Crawford Confrontation Clause

by Bell Law Firm

For the past 11 years, lawyers and judges have been searching for clarity regarding The Supreme Court of the United States’ (SCOTUS) 2004 decision in Crawford v. Washington, which until recently, represented the Supreme Court’s latest take on the Confrontation Clause.[1] The Supreme Court returned to the Confrontation Clause recently in Clark v. Ohio.

Before diving into the changes that came with Clark, let’s take a look at where we started: with Crawford. At trial in Crawford, prosecutors attempted to introduce a police recording taken of defendant’s wife as evidence against defendant. The trial court allowed the use of the statement and the Supreme Court of Washington upheld their decision. The defendant appealed to the Supreme Court and SCOTUS reversed, concluding that the prosecution could not bring statements that an absent witness said out-of-court if those statements qualify as ‘testimonial’.[2] The reason the Court reversed is because the introduction of those ‘testimonial statements’ violated the defendants right to confront witnesses against him. The evidence was merely a recording; the wife was not available for the defendant to cross examine (confront), and thus his constitutional rights were violated by the prosecution’s use of the statement against him.

So after Crawford, we know that statements made to law enforcement officers for the purpose of a later prosecution are testimonial, and the defendant has a right to confront the maker of the statement. The issue presented in Clark, however, was whether an out-of-court statement made to someone other than the police could be used at trial without violating the confrontation clause.

In Clark, a day-care worker noticed that a boy in the class, LP, had red scratches on his face, was not talkative, and refused to eat. After some prodding, a day-care employee got LP to talk, and he told her that the injuries came from his mother’s boyfriend. The day-care employee alerted a child abuse hotline, and Clark was subsequently arrested. Under Ohio law, 3-year-old LP was not competent to stand trial. Due to this ruling, Clark argued that his rights under the confrontation clause had been violated because he was not given an opportunity to cross examine LP, and therefore LP’s statements to the day-care employee should not be admitted into evidence.

The trial court admitted the evidence over Clark’s objection, thus allowing testimony from the seven people that talked with LP about the incident. The Supreme Court of Ohio reversed, concluding that day-care employees were ‘agents’ of law enforcement because of their duty to report information about suspected child abuse. SCOTUS overturned that decision, 9-0 in support of the result. However, only five other justices agreed with Alito’s opinion; Scalia authored a relatively harsh concurrence that was joined by Ginsberg, and Thomas wrote a separate concurrence as well.

According to SCOTUS, certain circumstances exist where an out-of-court statement that is not made to police can be used at trial. In Clark, SCOTUS concluded that the use of LP’s statements to the day-care employee did not violate Clark’s confrontation clause right for several reasons, mainly that the statements were made in the context of an ongoing emergency and that they were both spontaneous and informal. In sum, the statement in question was closer to a 911 call than it was to a formal affidavit.  SCOTUS also dismissed Clark’s contention that the statements were testimonial, holding that the employee’s main concern (read, primary purpose) when calling the abuse hotline was the safety of LP, and not the later prosecution of Clark.

As of today, SCOTUS loosely applies a set of factors to determine whether a statement is testimonial. These factors include whether the statement: (1) discusses past or ongoing events or emergencies,(2)  the location of the defendant in relation to the victim, (3) the lapse of time between events, and (4) the formality of the statement made. In theory, application of these factors will effectively determine the testimonial nature of the statement.

However, in practice, SCOTUS’ holding does little to resolve the murky, post-Crawford aftermath. Justice Alito’s opinion declined to establish an actual standard or rule for such statements, lending future decisions subject to unpredictable judicial interpretation. Additionally, the holding could be, at least in part, a case of unsympathetic-defendant-meets-sympathetic-plaintiff. The courts’ analysis was admittedly bolstered by the fact that LP was only 3-years-old; statements made by children rarely implicate the Confrontation Clause.[3]

In conclusion, the importance of the post-Crawford confrontation clause cannot be questioned. That being said, until the line that determines what constitutes a testimonial statement is made more clear, lower courts will have to deal with a bevy of unpredictable outcomes that comes from the Court’s current factor-intensive analysis.

Jacob Feuer is an associate attorney with the Law Offices of James A.H. Bell P.C  in Knoxville, TN. He may be contacted by calling 865-637-2900 or by email at jfeuer@jamesahbell.com. The Bell Law Firm: Client Focused, Court Room Proven. Ben Lemly, a third year law student at the University of Tennessee College of Law Contributed to this post.

[1] You know, the part of the Constitution that says you have a right to confront witnesses against you.

[2] Whether a statement is ‘testimonial’ depends on the primary purpose of the statement. Typically, ‘testimonial’ statements are ones that are made by an accuser in a formal statement to the government, (for example, affidavits, custodial examinations, confessions, and interrogations). These types of statements are considered testimonial because they are made and memorialized for the purpose of later prosecuting a defendant at trial. The introduction of these types of statements violates the defendant’s right to confront witnesses against him. However, if the primary purpose of a statement is something other than for prosecution, such as responding to an emergency (for example, 911 calls), the statement is non-testimonial and can be used even if the defendant never has an opportunity to confront the person who made the statement.

[3] http://www.jdsupra.com/legalnews/supreme-court-update-mcfadden-v-united-46210/

Not so Fast, Tennessee

by Bell Law Firm

Image found at http://www.clker.com/cliparts/8/f/d/8/119710669026861758johnny_automatic_speeding_car.svg.hi.png

Unmanned “speeding cameras” in Tennessee are soon to become largely irrelevant, thanks in part to a recent bill that passed legislation in May. SB1128, which goes into effect July 1 of this year, prohibits speeding citations given by fixed, unmanned traffic enforcement cameras, unless the camera is:

• Within the designated distance of a marked school zone; or
• On any S-curve of a public road or highway

SB1128 will change T.C.A. § 55-8-198, which allows for speeding cameras to exist so long as certain criteria are met. The current criteria includes the requirement that: the tape be reviewed by a POST-certified or State-commissioned law enforcement officer, notice be sent to the offender within 20 days, appropriately sized signs be posted between 500’ and 1000’ feet of the camera, and that the local governing body conduct a traffic engineering study for the considered area, among other minor things.

Initially, SB1128 sponsor Andy Holt sought to invalidate both speeding and red light cameras completely, but ran into opposition, which led to a compromise that allows for the cameras to continued ticketing of red light violators, but only certain “speeders.” Before the bill passed, Tennessee was one of nine states that permitted speed cameras either wholly, or in a limited manner.

Questions about the cameras constitutionality began to surface following the Supreme Court of the United States’ (“SCOTUS”) 2009 decision in Melendez-Diaz v. Massachusetts. There, SCOTUS reversed the conviction of a citizen accused of distributing and trafficking cocaine because Defendant did not have the opportunity to confront the lab technicians that tested the substance seized upon his arrest. Scalia wrote the majority opinion, holding that the analysis of the substance was a testimonial statement subject to the confrontation clause, thus requiring the technician to appear before court so that the Defendant could properly “face his accuser.”

Melendez-Diaz appears analogous to the question of unmanned speeding camera citations, leaving the owner of the speeding car only an inanimate object to confront, unless the ticket was certified by an appropriate technician. Even with this certification, Melendez-Diaz would require the technician to personally show up in court to testify or have the evidence excluded.

Other states and municipalities are experiencing similar judicial questions over speeding cameras in the wake Melendez-Diaz. An Ohio court of appeals judge reversed a speeding citation given by a traffic enforcement camera, only to have that holding reversed by the State’s Supreme Court. Florida and Iowa have also heard cases concerning the legality of the cameras.

For Tennesseans, it is important to remember that § 55-8-198, the law allowing the use of speed cameras, is still valid until July 1. For the next month, all drivers should lookout for required signage notifying drivers of the speeding cameras ahead.

James A.H. Bell is the founder of Law Offices of James A.H. Bell, P.C. in Knoxville, TN. Mr. Bell has over 40 years of experience in both criminal and civil litigation and may be contacted by calling 865-637-2900 or by email at jbell@jamesahbell.com. The Bell Law Firm: Client Focused, Court Room Proven.

Body Cameras: What to Expect From Their Addition to Police Stations Across the Country

by Bell Law Firm

 

If you own a television or are a member of any social medium, chances are you have heard about the use of excessive force by police officers. The 2014-2015 deaths of Michael Brown, Walter Scott, Freddie Grey, Eric Garner, Tamir Rice among others has given rise to a heightened tension between citizens and police officers. If the glass on your desk is half-full, a positive to the violence is that discussion of attaching body cameras to all police officers has accelerated. This past December, President Obama called upon Congress to authorize $75 million dollars in Federal funding to purchase up to 50,000 body cameras for officers across the nation.

Some states, including Tennessee, have bills drafted that require police officers to wear cameras while on the job. Tennessee HB 0712, which can be found here, would require officers to wear the camera at all times while on duty. The bill also provides that the recordings must be saved for at least seven days and are not to be released to the public until charges are adjudicated. Finally, Tennessee’s proposed bill provides that implementation costs shall only be provided by grants, donations, or Federal funding.

According to a recent random polling of 1,001 Tennessee citizens, 86 percent say they are in favor of a bill requiring officers to wear body cameras while on-duty.[1] However, before any significant change occurs, some important questions remain unanswered. Who watches or monitors the video recordings? Will the videos be available to the public? Who will pay the cost of implementing and upkeep? How long and where will the videos be stored? These are just some of the questions that need to be resolved before any meaningful action occurs.

HB 0712 attempted to answer some of these questions by providing for a minimum amount of time for storage, where funding will come from, and who will store the footage. The proposed bill will likely require additional revisions before it can reach a vote for the following reasons.

First, the bill does not effectively answer the question of who will be able to see the footage. Police cameras won’t be as effective if it is the police themselves regulating the videos. As of mid-April, 12 states and the District of Colombia proposed regulations that would restrict the public from viewing any of the footage.[2] Other states’ proposals would release the footage only to those who have filed a complaint or are involved in a court proceeding involving excessive force by a police officer. Some states have proposed releasing the relevant portions of the video to the public and blurring out the faces of those involved for privacy reasons.

Second, the seven-day storage minimum will need to be increased in the interest of justice. By nature, incidents involving excessive force usually end with the arrest of that individual. Given a scenario where the individual remains incarcerated for days after the arrest, seven days would not provide enough time for an individual to obtain a lawyer and have that lawyer file the necessary information to obtain the document. On May 28^th, an Illinois bill, discussed here, passed a House vote that would provide storage for 90 days, which is consistent with other proposals.

Although it is not as pressing a concern as other police camera questions, the funding of the cameras under HB 0712 may require amending as well. Currently, the proposal requires that funding for cameras come only from donations, grants or Federally. This is in contrast to President Obama’s proposal, which provided that the Federal government would match spending from State and municipal governments. A possible solution would be to marginally increase fines for simple citations and use that extra income to purchase and implement the camera system.

Some police departments are phasing out in-car cameras in favor of the cheaper body cameras. While an economic choice is appealing, in-car cameras should not be replaced for the time being. For starters, in-car cameras automatically begin recording when the police car speeds up or turns on sirens, allowing evidence of the underlying reasonable suspicion or probable cause for the stop to be recorded. Body cameras still require a manual trigger, which may not occur until the car is stopped. In addition, battery life of an in-car camera is still significantly longer than its body counterpart. While the technology might one day be advanced enough for a phasing out of the in-car camera, body cameras today are best served to complement, not replace, the in-car cameras.

Body cameras appear to be here for good, but it remains to be seen how best to accomplish their addition.

James A.H. Bell is the founder of Law Offices of James A.H. Bell, P.C. in Knoxville, TN. Mr. Bell has over 40 years of experience in both criminal and civil litigation and may be contacted by calling 865-637-2900 or by email at jbell@jamesahbell.com. The Bell Law Firm: Client Focused, Court Room Proven.

[1] http://nashvillepublicradio.org/post/poll-overwhelming-bi-partisan-support-tennessee-police-wear-body-cameras

[2] http://www.washingtonpost.com/local/crime/as-police-body-cameras-catch-on-a-debate-surfaces-who-gets-to-watch/2015/04/17/c4ef64f8-e360-11e4-81ea-0649268f729e_story.html

Probable Cause to Arrest

by Bell Law Firm

In Baltimore Maryland, the chief prosecutor for that state judicial district held a press conference and announced the state had “probable cause to make an arrest” of the law enforcement officers connected with Freddie Gray’s death. The anticipated charges are homicide and related lesser offense such as misconduct. According to reports, Mr. Gray died after sustaining a spinal cord injury while he was in police custody. The prosecutor cited repeated mistreatment of Mr. Gray. During Mr. Gray’s initial arrest, seizure and custody transport. Mr. Gray was abused, was arrested without probable cause, and the officers involved violated numerous police procedures. Moreover, the officers neglected to seek medical treatment at all after Mr. Gray was injured. You can view a full timeline of the events as compiled by the New York Times here.

Two important legal questions have surfaced as a result of this announcement. One, what was the basis of Mr. Gray’s initial arrest, and did that basis amount to probable cause to seize and detain him? The answer is very simple: No. Mr. Gray had in his possession a knife, located in his pants pocket. It was not an illegal weapon, prohibited by law. The arrest of Mr. Gray for possession of an unlawful weapon was without probable cause.

The next question is, what is the basis of the officers arrest, and did that basis amount to probable cause to seize and detain the officers? The answer again is very simple: yes. The officers, based upon a review of the film footage, statements of witnesses, review of procedures, and the totality of the circumstances show that they, in connection with each other recklessly failed to safely restrain Mr. Gray during the course of an illegal seizure of Mr. Gray’s person, which resulted in Mr. Gray’s death.

What is probable cause, then, in the legal sense?  It simply means that amount of proof necessary to bring forth charges and set the process for a trial on the issue of guilt for the conduct of the officers in their handling of a person in custody. It does not mean that the officers are guilty beyond a reasonable doubt. It does not mean the evidence is more likely than not that the officers violated the criminal law, or that they are guilty of the crimes charged. It merely means that there is sufficient evidence to initiate the legal process.

A common definition that we learned in law school is that probable cause exists where the facts and circumstances within the officers’ knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed. For example, if you saw me in raincoat and it was wet, you would have probable cause to believe that it was raining outside.

Like the rest of the country, we will continue to follow the Freddie Gray story as the wheels of justice continue to turn.

James A.H. Bell is the founder of Law Offices of James A.H. Bell, P.C. in Knoxville, TN. Mr. Bell has over 40 years of experience in both criminal and civil litigation and may be contacted by calling 865-637-2900 or by email at jbell@jamesahbell.com. The Bell Law Firm: Client Focused, Court Room Proven.

Thinking of Attending Bonaroo? We Have some Advice.

by Bell Law Firm

For many music lovers from all over the country, a music fest is brewing in Bonaroo. There will be a record attendance by many from the four corners of the United States. Unfortunately, for some, there will be some potential dire consequences with the heightened law enforcement activity that normally accompanies this particular event. This brief article will discuss the most frequent interaction between the attendee and the law enforcement officer(s) (LEO).

First and foremost, if your vehicle is stopped, the police will want to search you and the vehicle for narcotics. You should not consent to a search of your motor vehicle. Also, you should read our last blog on the latest ruling by the Supreme Court on search and seizure of vehicles. You can find the article here. You should not make any statements or try to debate the stop and detention. Simply ask, “Am I free to leave now?”

If your vehicle (car, motorcycle, van, bus, motor home, camper, etc) or other property is seized, please obtain and keep the seizure receipt (usually it’s a green copy) so that the lawyers can take immediate action. The seizure hearing is separate and apart from the criminal case, so there will be a need to contest the seizure of your assets. The LEO will confiscate any evidence of narcotic use, such as scales, rolling papers. The LEO will seize for forfeiture any and all assets, such as vehicles described above, cash, jewelry, and other valuables. The bigger the asset seizure, the more aggressive the prosecution will be is a good rule of thumb to remember.

Once you are on the side of the road with the LEO, do not volunteer any answers to any questions. Provide the LEO with a valid driver’s license, proof of registration, and proof of insurance. Do not agree to do what the officer asks you to do, or request you to do, such as field sobriety tests. If the LEO orders you to do something, such as get out of the car, then obey the order and no further.

The Law Offices of James A.H. Bell, P.C. has for years successfully defended young men and women from across the country from various forms of prosecution resulting from the Bonaroo festival. We want you to enjoy your time here in Tennessee, but if the visit results in an arrest, seizure, or confiscation assets, please feel free to contact this office for a consultation.

James A.H. Bell is the founder of Law Offices of James A.H. Bell, P.C. in Knoxville, TN. Mr. Bell has over 40 years of experience in both criminal and civil litigation and may be contacted by calling 865-637-2900 or by email at jbell@jamesahbell.com. The Bell Law Firm: Client Focused, Court Room Proven.

Supreme Court Strengthens Privacy Protection for Motorists

by Bell Law Firm

Officer conducting a search using a “dog sniff”

Just after midnight on March 27, 2012, Nebraska police officer Morgan Struble watched as a Mercury Mountaineer veered slowly onto the shoulder of State Highway 275 before correcting and moving back. Officer Struble, travelling with his k-9 Floyd, activated his blue lights and proceeded to stop the SUV.

There were two men in the vehicle, one of which was Dennys Rodriguez. Rodriguez, the driver, told Officer Struble he had swerved onto the shoulder to avoid a pothole, and handed the officer the usual information: license, registration, and proof of insurance. Officer Struble conducted a records check on Rodriguez. Finding nothing, he returned to the vehicle and began questioning the two men about where they had been that night. Officer Struble then took the other man’s identification and ran a records check on him. Finding nothing, he returned to the vehicle and returned the license along with a written warning for Rodriguez.

Rather than allowing the men to depart, however, Officer Struble asked Rodriguez if he would wait while Struble conducted a “dog sniff”, a procedure by which the officer walks his k-9 around the vehicle for the purpose of detecting the presence of illegal drugs. Rodriguez refused, at which point Officer Struble told him to turn off the ignition, get out of the vehicle, and stand in front of the patrol car while they awaited the arrival of a second officer. Both men did as they were told, and upon the arrival of the second officer, Officer Struble and his k-9 Floyd conducted the “dog sniff”, and subsequently discovered, “a large bag of methamphetamine.”

All told, the entire stop lasted a period of some thirty minutes, approximately 7-10 minutes of which occurred after the issuance of the citation and before the dog alerted to the presence of drugs in the vehicle. After his arrest, Rodriguez challenged the use of the evidence against him, arguing essentially that the officer had no basis to continue detaining him after issuing the written warning.

After reviewing the evidence, a magistrate agreed with Rodriguez on one thing: the officer had no lawful basis to continue holding the two men after he issued the written warning; he had no reasonable suspicion that the men were travelling with narcotics, and he had no probable cause to believe that they had committed a crime.

Despite this admission, the Magistrate, and later the District Court’s, reaction can be boiled down to: “so what?” The Magistrate found, and the District Court later agreed, that the seven to ten minute extension of the stop was “not of constitutional significance” and refused to suppress the evidence. The Eight Circuit Court of Appeals affirmed the decision and Rodriguez appealed to the only court in the land with the authority to overrule them: the United States Supreme Court.

In a divided 6-3 opinion, Justices Ginsburg, Roberts, Scalia, Breyer, Kagan and Sotomayor ruled that, unless the officer has a “reasonable suspicion”[1] of criminal activity, a traffic stop that exceeds the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures.

In this case, the only evidence of the presence of illegal contraband came from the dog sniff. Because the dog sniff occurred after the “mission of the stop” had been completed (i.e. after the driver had been issued a written warning), the evidence was discovered at a time when the driver was illegally seized, and therefore cannot be used against the defendant in court.

To be clear, this decision will not end the practice of overzealous officers prolonging traffic stops for the purpose of fishing for evidence of illegal activity.  Cases involving traffic stops are always fact-specific and, as the dissent points out, the time required to complete a traffic stop can vary depending on the technology available to the officer making the stop, among other factors. Likewise, this case does not stand for the proposition that drug dealers and traffickers are free to transport their wares on our nation’s highways without fear of detection from law enforcement.

What it does stand for, is the idea that an officer cannot prolong a stop and force passengers and drivers to exit their vehicle, await the arrival of other officers, or wait while the officer conducts a “dog sniff” unless the officer has an articulable basis for doing so.

[1] A reasonable suspicion means a suspicion that does not rise to the level of than probable cause, but is more than a mere hunch based on the totality of the circumstances.

Jacob Feuer is an associate attorney with the Law Offices of James A.H. Bell P.C  in Knoxville, TN. He may be contacted by calling 865-637-2900 or by email at jfeuer@jamesahbell.com. The Bell Law Firm: Client Focused, Court Room Proven.

There are Awards, and then there are AWARDS

by Bell Law Firm

Every profession has their way of honoring individuals that have completely dedicated their lives to not only excelling in their chosen career, but changing the very nature of that profession for the better. In sports, there is the Hall of Fame; for entertainers, there are the Oscars, Emmys, or Tony Awards. The legal profession is no different in this regard. While there are no green jackets, or championship rings for attorneys, the acknowledgment usually comes in the form of a significant recognition from the various bar associations across the nation. For example, on the national bar association level, the American Bar Association has an award entitled Mark Hardin Award for Child Welfare League Scholarship and Systems Change and it is named for a longtime director.

The bar association award typically is given to an attorney, law professor, judge or legislator that demonstrates a deep commitment to the principals of the bar association over long periods of time.For a criminal defense attorney in Tennessee, receiving such an award from either the National Association of Criminal Defense Lawyers or the Tennessee Association of Criminal Defense Lawyers could be considered the apex of their career, and indeed many fine lawyers practice for decades in faithful service to their clients and never receive any recognition. Being recognized by both the Tennessee Association of Criminal Defense Lawyers and the National Association of Criminal Defense Lawyers with such an award is truly a once in a generation accomplishment.Our very own office leader, James A.H. Bell, is just such an individual, and we would like to highlight those two awards, despite Mr. Bell’s protestations of tooting his own horn.

The first honor Jim received was the National Association of Criminal Defense Lawyer’s Robert C. Heeney Memorial Award. This Award is NACDL’s most prestigious award, given annually to the one criminal defense attorney who best exemplifies the goals and values of the Association, and the legal profession. The award was established in 1981 to honor NACDL’s 18th President, the late Robert C. Heeney, of Rockville, MD. Other past winners have included some of the preeminent criminal defense lawyers in the country including Lisa Wayne from Denver, Colorado, John Wesley Hall from Little Rock, Arkansas, Judy Clarke from Spokane, Washington, and Barry Scheck from New York, New York. Mr. Bell is the only attorney from the State of Tennessee chosen to be the recipient of the Heeney Award during its entire history.

The second prestigious award bestowed upon Mr. Bell is the Tennessee Association of Criminal Defense Lawyer’s Joe B. Jones Award. That award is given periodically for superior lifetime achievement in the area of criminal defense and the law, established in memory of the late Judge Joe B. Jones, a past President of TACDL. Past winners of this award include some of the most prominent criminal defense attorneys in Tennessee history, including Robert W. Ritchie, and William D. Massey from Memphis. The Joe B. Jones Award has only been given out ten times since being established in 1998.

The fact that one receives these two highest awards from two very respected bar associations is virtually unprecedented. Our entire office is very proud that two preeminent bar associations saw fit to bestow their highest honor on our founder and leader. We can honestly tell you that Jim’s work ethic today is driven with the same exuberance that he displayed at the time he was bestowed with those honors. Keep that in mind the next time you find yourself in need of legal counsel, there are awards, and then there are awards.

James A.H. Bell is the founder of Law Offices of James A.H. Bell, P.C. in Knoxville, TN. Mr. Bell has over 40 years of experience in both criminal and civil litigation and may be contacted by calling 865-637-2900 or by email at jbell@jamesahbell.com. The Bell Law Firm: Client Focused, Court Room Proven.

The Little Boy that Haunts Me

by Bell Law Firm

Many years ago, I stood in a criminal court in Knoxville, Tennessee as the prosecutor in a case wherein a young man was being sentenced after having been convicted of felony drug offenses.  As he was led into the courtroom by court officers, a little boy, not more than three years old ran from the back of the courtroom and threw himself at the young man.  The little boy was overjoyed to see his dad who couldn’t embrace his son because the man’s hands and feet were shackled.  The little boy wrapped himself around the young man’s legs crying “I’ve missed you Daddy.  I’ve missed you so much!”  Court officers pried the boy away from his father and returned the boy to his mother who stood crying in the courtroom.  Shortly thereafter, the judge sentenced the young man to spend the next decade of his life in prison.  The little boy and his mother left the courtroom followed by three other young men who had criminal records of their own and who were suspected drug dealers as well.  About three months later, I received a letter from the young man who wrote to me from prison with one simple message:  I have done some wrong things.  But I love my son and I am a good father.

That little boy haunts me.  I wonder what happened to him, if he continued to have a relationship with his father, if he grew up with or without the right influences in his life, if he grew up at all.

According to a recent article I read, there are currently 2.4 million people in prisons in the United States.  The prison population in the United States has grown 500% in the last 30 years and while the United States has only 5% of the world’s population, it has 25% of the world’s imprisoned population.  Perhaps, most astonishing is that 1 of 28 children has a parent that is in prison.  That means that there are at least 4 children in my daughter’s fourth grade class who have a parent in prison.

In Tennessee, you must be convicted of a felony to be housed in a prison as opposed to a county jail.  Translation, all those prisoners have had their voting rights revoked.  They will not be able to hold public office.  They will not be able to own or possess a firearm of any kind.  In all likelihood, they will not serve on juries nor will they have much success at finding gainful employment.  They are disenfranchised.  They are citizens who can never be fully restored in the eyes of the law regardless of having served their time and maintained a spotless record of lawful behavior both in prison and on the outside after being released.  In some respects, every felony sentence is a life sentence.

Not only is a felony conviction the mark of Cain or scarlet letter that bears itself out in the life of the person who committed the crime, it is a mark that bears itself out in the lives of the children these felons leave behind.  Younger children want to know why Mommy or Daddy can’t come home.  As time goes on, they learn to accept the absence of their parent in their lives and find it difficult to adjust once the parent is released.  Oftentimes, they have difficulty at school because of the disruption in their home-life when a parent goes to prison and again when the parent tries to re-enter their lives after being released from prison.  In smaller communities where parents of classmates tend to know more about the lives and backgrounds of other students and their families, these children can be alienated because protective parents don’t want their children to have play dates or sleepovers with a kid whose mom or dad is a convicted felon.

Having practiced criminal law for over 20 years, I have witnessed these devastating effects in the lives of the children of convicted felons.  Who or what fills the shoes of a parent who is sent to prison?  Something or someone always does.  We, as a country, have a duty to these children to make sure they are not punished for the sins of the parents.  They will be adults one day with children of their own.  We must teach them a standard by which to live their lives, raise their children, and break the cycle.  We must stand in the gap.  Mankind will be the better for it.

Paula Henderson is a criminal defense attorney with the Law Office of James A.H. Bell, P.C. in Knoxville, TN.  She may be contacted by calling 865-637-2900 or by email at phenderson@jamesahbell.com. The Bell Law Firm: Client Focused, Court Room Proven. 

Supreme Court Considers Application of Americans with Disability Act to Law Enforcement Officers

by Bell Law Firm

I have been representing law enforcement officers (LEOs) and their families off and on for nearly forty years in various legal situations and crisis. Usually these situations involve occupational injuries occurring on the job (workers’ compensation), personal injury claims, administrative grievances, criminal investigations (state and federal) and marital issues involving divorce. Some of my good friends are LEOs and I generally receive a lot of referrals of clients from the law enforcement community. The average law enforcement officer is focused at investigation of accidents involving motor vehicles and criminal violations. Training for LEOs can be expensive and frequently costs about thirty thousand dollars to sharpen their skills in the venues of their work, traffic or patrol. The training, however, typically does not include any instruction at all on the medical issues that most mortals encounter as they pass through life. Recently, there has been a great deal of debate about the adequacy of LEO training as it relates to dealing with individuals who are suffering from mental illness.

For example, in a DUI investigation, there are medical conditions that mimic intoxication. In engaging the mentally ill on the street, there is almost no training on how to contend with the suicidal or psychotic person who is appearing to be uncontrollable. Today, the Supreme Court is considering whether the Americans with Disabilities Act requires police to take special precautions when trying to arrest armed and violent suspects who are mentally ill. The Court heard oral arguments in a challenge over how LEO contended with a person who had schizophrenia, as she was engaged in a very threatening manner with her social worker. In that case, the LEO forced their way into the suspect’s room at a group home, shot her five times as she came at them with a knife. At issue before the US Supreme Court are the American with Disability Act geared to protecting and providing accommodations of the disabled. It is urged upon the Supreme Court to require the LEO community to make “reasonable accommodations” when investigating a fact pattern that involves individuals who have mental or physical disabilities. On the other hand, the LEO has advanced that the ADA never required accommodations for dangerous encounters with armed and mentally ill individuals.

“Friends of the Court” briefs[1] filed on behalf of the Plaintiff, Ms. Sheehan, advance the notion that LEO failure to take into consideration the mental disabilities of a person will by necessity result in more unnecessary and unreasonable police violence, such as shootings by the LEO. Other Friend of the Court briefs, filed on behalf of the LEOs, advance the proposition that to rule in favor of the ADA in police encounters would undermine the effectiveness of LEO in controlling a violent and volatile situation, thereby risking the lives of not only the bystanders, but also the LEO appearing on the scene of the confrontation. The lower appellate courts have gone both ways on this issue, and thus, the case is ripe for decision by our highest court in the land. A decision is expected later this year.

James A.H. Bell is the founder of Law Offices of James A.H. Bell P.C  in Knoxville, TN. Mr. Bell has over 40 years of experience in both criminal and civil litigation and may be contacted by calling 865-637-2900 or by email at jbell@jamesahbell.com. The Bell Law Firm: Client Focused, Court Room Proven.

[1] A “Friend of the Court Brief”, or an Amicus Brief, is a document that is filed by a party that, while not directly involved in the litigation, would be affected by the decision or otherwise have an interest in the litigation.