This entry is an “aside” from the research I have been doing lately, and involves an important element in every criminal charge – specifically, possession of illegal substances. It is not uncommon for two or more persons to be arrested in a vehicle sting, when one individual obtains a ride to a location in someone else’s car, but they are arrested with drugs on their person. Ownership of the drugs is “constructive”, and it is attributed to everyone in the vehicle as a prophylactic measure. The defense, at that time, is to attack the element of knowledge. If the person didn’t know about the drugs, they cannot be charged with their possession (it must be knowing, or there can be no criminal action attributed to that person, logically).
The most recent case directly on point regarding this issue in Georgia is McGee v. State, 316 Ga.App. 661 (Ga. Ct. App. 2012), and it concerns the crime of trafficking (which would also include the additional element of intent, but the discourse on knowledge in this case is on-point):
William Allen Adams Jr., for Sanyo McGee.
Scott L. Ballard, Robert Wright Smith Jr., for The State.
BARNES, Presiding Judge.
Sanyo Walter McGee appeals his conviction for trafficking in cocaine and his sentence of life imprisonment. He challenges the sufficiency of the evidence to support his conviction, maintains that the trial court made several errors in its charge and recharge to the jury, and contends that the trial court erred in sentencing him to life in prison as a recidivist. While the evidence was sufficient to support McGee’s conviction, the trial court erred in its response to a jury question regarding the knowledge requirement of the trafficking statute. As discussed below, we conclude that the trial court’s response may have led the jury to incorrectly substitute criminal negligence for the knowledge requirement in rendering its verdict, and we cannot say that the erroneous response was harmless. Accordingly, we reverse McGee’s conviction and remand the case for a new trial.
1. McGee first argues that the evidence was insufficient to support his conviction for trafficking in cocaine. We disagree.
In reviewing the sufficiency of the evidence to support a conviction, we must ask “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” (Citation and punctuation omitted.) Able v. State, 312 Ga.App. 252, 252(1), 718 S.E.2d 96 (2011).
Viewed in the light most favorable to the prosecution, the evidence showed that on October 30, 2009, an undercover special agent with the Fayette County Tactical Narcotics Team agreed to meet a person named “Mike” and purchase two ounces of cocaine from him for $1900. Under the terms of the drug deal, the agent would meet Mike, who would be driving a blue Chrysler 300, in a grocery store parking lot in Fayette County. Other agents forming a surveillance team would be stationed nearby and would move in and secure the scene once the deal was completed.
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After arriving at the parking lot and waiting for an hour without having any contact from Mike, the undercover agent and other members of the surveillance team left the parking lot. However, shortly after leaving, the agent received another phone call from Mike, and he returned to the parking lot to complete the drug transaction. The surveillance team waited in another car in the parking lot to watch the transaction take place.
When the agent returned to the parking lot, he saw a blue Chrysler 300 occupied only by the driver. He observed the driver walk over to the passenger side of a dark Chevrolet HHR that was parked in a nearby aisle of the parking lot. Less than a minute later, the driver returned to the Chrysler 300. At that time, the agent received a phone call telling him to approach the Chrysler 300, and he then got out of his own car and went over to the Chrysler 300 to complete the drug transaction.
Once he approached the Chrysler 300, the undercover agent confirmed that the driver inside the car was named “Mike,” paid him the cash, and received the quantity of cocaine. After the transaction took place, Mike again exited from the Chrysler 300 and walked back over to the passenger side of the Chevrolet HHR parked nearby. At that point, the surveillance team moved in and apprehended Mike, who had sold the agent the cocaine, and McGee, who was sitting in the passenger seat of the Chevrolet HHR.
McGee was handcuffed and advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). McGee chose to speak with one of the members of the surveillance team, explaining that he was present in the parking lot “to make sure my boy didn’t get robbed.” He denied having the cocaine prior to the sale and denied having any weapons. No drugs or drug money were found on McGee or in the Chevrolet HHR in the search conducted after his arrest.
A forensic chemist at the state crime lab tested the suspected narcotics obtained from Mike as part of the drug transaction. The substance was confirmed as cocaine with a weight of 54.31 grams and a purity of 12.4 percent.
McGee and Mike were jointly indicted for the crime of trafficking in cocaine but were not tried together. At McGee’s trial, the State called, among other witnesses, the undercover narcotics agent who completed the drug transaction with Mike, the member of the surveillance team who spoke with McGee after his arrest, and the forensic chemist who tested the suspected cocaine. McGee, who represented himself, did not testify or call any defense witnesses. At the conclusion of the trial, the jury found McGee guilty of the charged offense. The trial court sentenced McGee to life in prison as a recidivist. This appeal followed.
Under OCGA § 16–13–31(a)(1), a person commits the offense of trafficking in cocaine when he “is knowingly in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine.” Thus, the trafficking statute requires the State to prove that the defendant (1) possessed a substance, (2) that the substance was cocaine or a mixture with a purity of 10 percent or more of cocaine, (3) that the quantity of the substance was 28 grams or more, and (4) that the defendant did so knowingly. Harrison v. State, 309 Ga.App. 454, 456(2), 711 S.E.2d 35 (2011).
As to the statutory requirement that the defendant possess the substance, evidence that the defendant had joint constructive possession of the cocaine with another is sufficient to sustain the trafficking conviction. See Martinez v. State, 314 Ga.App. 551, 552(1), 724 S.E.2d 851 (2012). “A person who, though not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing is then in constructive possession of it.” (Citation omitted.) White v. State, 313 Ga.App. 605, 606(1), 722 S.E.2d 198 (2012).
As to the knowledge requirement of the trafficking statute, the State must prove “that the defendant knew that he possessed a substance and knew that the substance contained some amount of cocaine.” Harrison, 309 Ga.App. at 456(2), 711 S.E.2d 35. See
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Barr v. State, 302 Ga.App. 60, 61–62(1), 690 S.E.2d 643 (2010); Cleveland v. State, 218 Ga.App. 661, 663(1), 463 S.E.2d 36 (1995). In contrast, the statute does not require that the State prove that the defendant knew the purity or weight of the substance. See Harrison, 309 Ga.App. at 456(2), 711 S.E.2d 35;Barr, 302 Ga.App. at 61–62(1), 690 S.E.2d 643;Cleveland, 218 Ga.App. at 663(1), 463 S.E.2d 36.1
Furthermore, even if a defendant does not directly commit the trafficking offense, he is a party to the crime if he intentionally aids or abets in its commission. See OCGA § 16–2–20(b)(3); Martinez, 314 Ga.App. at 552(1), 724 S.E.2d 851.
A defendant’s presence, companionship, and conduct before and after the offense are circumstances from which his participation in the criminal intent may be inferred. A defendant will not be presumed to act with criminal intention, but the trier of facts may find such intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the defendant is prosecuted. If the totality of circumstantial evidence is sufficient to connect the defendant with the possession of the drugs, the conviction will be sustained, even though there is evidence to authorize a contrary finding.
(Citation and punctuation omitted.) Martinez, 314 Ga.App. at 553(1), 724 S.E.2d 851.
Applying these principles to the case-at-hand, we conclude that the evidence outlined above was sufficient to enable a rational trier of fact to find McGee guilty beyond a reasonable doubt of trafficking in cocaine. Jackson, 443 U.S. at 319(III)(B), 99 S.Ct. 2781. The testimony regarding the drug seller Mike’s contact with McGee in the parking lot immediately before and after the drug transaction, combined with McGee’s statement to the surveillance team member, entitled the jury to reasonably infer that, at a minimum, McGee served as a lookout and was present to provide security for Mike during the transaction. “Acting as a lookout for a person who is committing a crime authorizes a conviction for that crime.” Dixon v. State, 277 Ga.App. 656, 659, 627 S.E.2d 406 (2006). See also Kimbro v. State, 152 Ga.App. 893, 894, 264 S.E.2d 327 (1980) (jury entitled to find that defendant was party to the crime when the defendant “was observed in a position which authorized the inference that he was standing as a lookout”). The evidence, therefore, was sufficient to sustain McGee’s conviction.
McGee nevertheless contends that the State failed to exclude every reasonable hypothesis except that of his guilty as required by OCGA § 24–4–6.2 But
[i]t is the jury’s role to resolve evidentiary conflicts, determine witness credibility, and decide the reasonableness of hypotheses based upon the circumstantial evidence. Questions as to the reasonableness of hypotheses are generally to be decided by the jury which heard the evidence and
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where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, that finding will not be disturbed unless the verdict of guilty is insupportable as a matter of law.
(Punctuation and footnotes omitted.) Ferrell v. State, 312 Ga.App. 122, 125(1), 717 S.E.2d 705 (2011). Contrary to McGee’s contention, we conclude that, based upon the evidence presented by the State in this case, decisions regarding the reasonableness of hypotheses were properly left for the jury to resolve.
2. McGee contends that the trial court erred in its response to a jury question pertaining to the knowledge requirement of the trafficking statute. We agree.
In its initial charge, the trial court instructed the jury on the statutory definition of trafficking in cocaine, see OCGA § 16–13–31(a)(1), but the court did not define “knowingly” as that term is used in the trafficking statute. Later, during its deliberations, the jury returned a note inquiring, “Does the defendant have to know what crime is being committed to a be a party to that crime?” (Emphasis in original.) In response to the jury’s question, the trial court responded,
The short answer to that is no. As far as to know what specific crime is being committed, the defendant—the State would have to prove, however, that the defendant knew, or should have known, what prohibited conduct was being committed.
(Emphasis supplied.) McGee objected to the trial court’s response to the jury’s question, arguing that “you actually have to know what a person is doing to be a party to it.” The trial court noted McGee’s objection for the record but made no correction to its response to the jury’s question.
The trial court’s response to the jury’s question was an incorrect statement of the knowledge requirement imposed by the trafficking statute. As explained in Division 1, to convict a defendant of trafficking in cocaine, the State must prove “that the defendant knew that he possessed a substance and knew that the substance contained some amount of cocaine.”Harrison, 309 Ga.App. at 456(2), 711 S.E.2d 35. See Barr, 302 Ga.App. at 61–62(1), 690 S.E.2d 643;Cleveland, 218 Ga.App. at 663(1), 463 S.E.2d 36. Furthermore, the conviction of a defendant as an aider and abettor and thus party to the crime requires proof that he “had knowledge of the intended crime and shared in the criminal intent of the principal actor.” (Footnote omitted.) Ratana v. State, 297 Ga.App. 747, 749, 678 S.E.2d 193 (2009). The trial court’s response, however, erroneously informed the jury that McGee could be found guilty of trafficking in cocaine upon a showing of mere criminal negligence rather than proof of guilty knowledge.
“Fundamental to any criminal case tried to a jury is the jury’s understanding of the essential elements of the crimes charged in order to determine whether the [S]tate has met its burden of proof beyond a reasonable doubt.” Coney v. State, 290 Ga.App. 364, 369(1), 659 S.E.2d 768 (2008). And “[a]ll charging errors are presumed to be prejudicial unless the record shows them to be harmless.” (Punctuation and footnote omitted.) Williamson v. State, 300 Ga.App. 538, 550(6), 685 S.E.2d 784 (2009). Error in a jury charge is harmless only if “there is no reasonable probability that it misled the jury or permitted a defendant’s conviction on an erroneous theory.” (Citation and punctuation omitted.) Able, 312 Ga.App. at 257(2), 718 S.E.2d 96.
Viewing the trial court’s charge as a whole, combined with the court’s response to the jury’s question, we conclude that there is a reasonable probability that the erroneous response may have misled or confused the jury regarding what the State was required to prove. While the evidence was sufficient for the jury to find that McGee had knowledge of and shared in the criminal intent to possess the cocaine that Mike sold to the undercover agent, the evidence on this point was not overwhelming. Given the evidence presented, the jury could have found that McGee knew that Mike was involved in some type of dangerous transaction and agreed to protect him from being robbed, but did not specifically know that Mike possessed cocaine as part of that transaction or share in his criminal intent to possess it. It follows that the jury could have convicted McGee on
[730 S.E.2d 136]
the erroneous theory that he should have known that Mike possessed cocaine in agreeing to protect him from being robbed.
Accordingly, we cannot say that the trial court’s erroneous response to the jury regarding the knowledge requirement was harmless. We therefore must reverse McGee’s conviction and remand the case for a new trial. See Dunagan v. State, 269 Ga. 590, 594–595(3), 502 S.E.2d 726 (1998) (trial court’s charge that improperly substituted criminal negligence for criminal intent as an element of the crime of aggravated assault constituted reversible error); Cadle v. State, 271 Ga.App. 595, 597–598(2), 610 S.E.2d 574 (2005) (trial court’s responses to jury questions constituted reversible error, where responses indicated that criminal negligence rather than criminal intent could support conviction); Jackson v. State, 205 Ga.App. 513, 514–515(3), 422 S.E.2d 673 (1992) (misstatement in jury charge regarding essential element of criminal intent required new trial on charge of possession of cocaine with intent to distribute); Tift v. State, 133 Ga.App. 455, 456–457(2), 211 S.E.2d 409 (1974) (failure to charge jury on “knowledgeable possession” constituted reversible error in drug possession case).
3. McGee enumerates several additional alleged errors relating to other jury instructions given by the trial court. We decline to address the alleged errors because they are unlikely to recur on retrial of the case. Likewise, McGee’s enumerations of error pertaining to his sentence are moot and need not be addressed in light of our decision to reverse his conviction and remand for a new trial.
Judgment reversed and case remanded for new trial.
ADAMS and McFADDEN, JJ., concur.
1. In Harrison, we questioned whether Barr and Cleveland were correct in concluding that the knowledge requirement did not apply to the purity and weight of the substance. SeeHarrison, 309 Ga.App. at 456–457(2), 711 S.E.2d 35. Nevertheless, we declined to revisit our precedent on the issue because any error in the jury instruction forming the basis for the appeal in Harrison was harmless in light of the evidence establishing the defendant’s guilt of the trafficking offense. See id. at 458–459(2)(b), 711 S.E.2d 35. See also Wilson v. State, 312 Ga.App. 166, 169(2), n. 2, 718 S.E.2d 31 (2011) (discussing Harrison ). Likewise, we decline to revisit our precedent in the context of the current appeal, given that McGee has not challenged that precedent and, in fact, concedes in his appellate brief that it is unnecessary to revisit whether the knowledge requirement should apply to the purity and weight of the substance in resolving the issues raised here. We note, however, that our Supreme Court recently granted certiorari in Wilson (Case No. S12C0370, decided Mar. 19, 2012), a case involving a conviction for trafficking in marijuana under OCGA § 16–13–31(c), a provision similar to the cocaine trafficking provision at issue in this case. See OCGA § 16–13–31(a)(1). Notably, our Supreme Court granted certiorari to address whether the State is required to prove that the defendant had knowledge of the weight of the marijuana that was in his possession to sustain his conviction for trafficking in marijuana.
2.OCGA § 24–4–6 provides: “To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.”
Belatedly, I hope your Thanksgiving holiday was as fulfilling and positive as could be asked for!
Earlier this week, someone specifically asked me a question regarding eligibility to move to Georgia after being removed from the Sex Offender Registry operated by their State of residence. In response, while I replied that I was not certain, and also believed (correctly) that the statute is phrased in language that describes Registry classification qualifications and not in terms of persons who are on the Registry or not (and, therefore, a person removed from the Registry in a different State would likely have to re-Register if they transferred to Georgia), it was more likely than not that Georgia would require them to register again as a sex offender even if they had been successfully removed from the Registry in their prior State of residence.
This case is a District Court case from New York, Spiteri v. Russo, 2013 U.S. Dist. Lexis 128379 (E.D.N.Y. 2013)(Lexis citation only), and it contains an excellent discussion of the particular Constitutional principle that underlies the horribly unfair rationale behind this ability of the States to take such action. Again, while the particular issue does not appear to have been addressed, it appears likely that States would tend to ignore the removal from the Registry in another State
“ix. Full Faith and Credit
Plaintiff argues that because his “out-of-state California conviction with a willing participant is no longer registerable [sic]” that New York is violating the Full Faith and Credit Clause by requiring Plaintiff to register in New York. (Pl. Opp’n. to State Defs. 86, 88-91.) According to the Full Faith and Credit Clause, “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” U.S. Const. art. IV, § 1. “The purpose of the Full Faith and Credit Clause  ’was to alter the status of the several states as independent foreign sovereignties, each free to ignore obligations created under the laws or by the judicial proceedings of the others, and to make them integral parts of a single nation throughout which a remedy upon a just obligation might be demanded as of right, irrespective of the state of its origin.’” Rosin v. Monken, 599 F.3d 574, 576 (7th Cir. 2010) (quoting Baker v. General Motors Corp., 522 U.S. 222, 232, 118 S. Ct. 657, 139 L. Ed. 2d 580 (1998)). “By virtue of its ‘exacting’ operation with respect to judgments, the Full Faith and Credit Clause results in ‘the judgment of the rendering State [gaining] nationwide force.’ The primary operational effect of the Clause’s application is ‘for claim and issue preclusion (res judicata) purposes.’” Rosin, 599 F.3d at 576 (alteration in original) (quoting Baker, 522 U.S. at 233).
Every court to squarely address the issue of whether the Full Faith and Credit Clause requires a state to give a convicted sex offender who relocates to that state the same classification that he would have had in the state of conviction has agreed that it does not. See, e.g., Daniels v. Arapahoe Cnty. Dist. Court, 376 F. App’x 851, 854 (10th Cir. 2010)  (holding that Colorado was not bound by the Full Faith and Credit Clause, to give the plaintiff the same sex offender classification status for his California guilty plea as he would have received in California); Rosin, 599 F.3d at 577 (holding that the Full Faith and Credit Clause did not prevent Illinois from requiring a plaintiff to register even though registration was not required in the state where he pled guilty); McGuire v. City of Montgomery, No.11-CV-1027, 2013 U.S. Dist. LEXIS 45157, 2013 WL 1336882, at *12 (M.D. Ala. Mar. 29, 2013) (plaintiff failed to state a Full Faith and Credit claim because “the judgment of the Colorado court — which is silent on registration in Colorado or any other state — does not preclude Alabama from requiring Plaintiff to register”); O’Donnell, 924 N.Y.S.2d at 687-88 (holding that New York could impose a different registration requirement than Virginia where the plaintiff was convicted); McGarghan, 920 N.Y.S.2d at 331 (the requirement that plaintiff register for 20 years in New York when he would only have to register for 10 years in Vermont where his conviction occurred was not a violation of Full Faith and Credit Clause); Smith, 898 N.Y.S.2d at 704-05 (holding that New  York did not have to give full faith and credit to the plaintiff’s registration requirement in Texas, the state where the plaintiff pled guilty); People v. Arotin, 19 A.D.3d 845, 796 N.Y.S.2d 743, 745 (App. Div. 2005) (finding that the Full Faith and Credit Clause “is not violated by requiring a convicted sex offender moving into New York to be governed by [New York's] registration requirements”).
The rationale used by most of these courts in reaching their decision is that the exercise of the police power of each state over its citizens gives states the power to independently determine sex registration for sex offenders located in its borders. For example, in Rosin, the Seventh Circuit found that “Illinois, as a state of the Union, has police power over the health and welfare of its citizens.” Rosin, 599 F.3d at 577. The Seventh Circuit went on to state that “New York has no authority to dictate to Illinois the manner in which it can best protect its citizenry from those convicted of sex offenses.” Rosin, 599 F.3d at 577. The Seventh Circuit concluded that “there is no tension between Illinois’s police power and the Full Faith and Credit Clause here. As a result, New York could promise Rosin only  that he would never have to register as a sex offender within its own jurisdiction. Rosin could not bargain for a promise from New York as to what other states would do based on his guilty plea to sexual abuse in the third degree, for New York had no power to make such a promise.” Rosin, 599 F.3d at 577.
In New York, two courts have similarly found that requiring a plaintiff to comply with a different registration requirement than the state of conviction was not a violation of the Full Faith and Credit Clause. In O’Donnell, the Appellate Division, Third Department found that:
New York and Virginia have each separately adjudicated the risk posed by petitioner to their respective citizens and imposed registration requirements upon petitioner pursuant to each state’s sex offender registration law. As neither state has attempted to adjudicate the same matter, the Full Faith and Credit Clause has not been violated.
O’Donnell, 924 N.Y.S.2d at 687-88. In McGarghan, the Appellate Division, First Department, found that “[t]he administrative manner in which a state chooses to exercise the registration requirements for a sex offender who moves into its jurisdiction falls squarely within the power  of that state and is not governed by the procedures in effect in the state where the offender previously resided.” McGarghan, 920 N.Y.S.2d at 330-31 (2011) (quoting Arotin, 19 A.D.3d 845, 796 N.Y.S.2d 743). The Appellate Division reasoned that “[t]he purpose of the Full Faith and Credit Clause is to avoid conflicts between States in adjudicating the same matters” and that “a different state’s registration requirement is not the same matter,” and therefore not a violation of the Full Faith and Credit Clause. Id. In Smith, the Third Department, used the same reasoning as Rosin and held that the registration of sex offenders was pursuant to New York State’s police powers and “New York is not required under full faith and credit principles to assign an offender the same risk level classification as that designated by the jurisdiction where the registerable conviction occurred . . . .” Plaintiff has not, and cannot, state a claim under the Full Faith and Credit Clause of the Constitution and this claim is dismissed with prejudice.”
ABA CLE – Drones on the Horizon
November 15, 2013
Matt Henshon – Partner, Henshon Klein LLP
Jennifer Lynch – EFF
Theodore Ruger – Professor, UPA Law School
John Villasenor – Professor (Electrical Engineering and Public Policy),
“Drone” – DOD Definition; unmanned aerial, can carry lethal or non-lethal payload
Customs and Border Patrol fly 10 drones now
Used by everybody from FBI and fire research to local police
- FAA has issued more than 1500 permits to fly domestic drones
- Drones currently flying in/around most major US cities (according to EFF map)
- Intrusive devices
- Stay aloft for days at a time
- Hard to see
- Large surveillance at one time
No restrictions in place because hard to define – no case on point yet.
- Privacy in backyard;
- Privacy in public places
- “reasonable expectation of privacy”
Established that law enforcement doesn’t need a warrant to fly over backyard, but 2012 case (Jones) addressed GPS tracking device, and held that it was a trespass. Concurring opinion in case looked at it instead to find that there is no reasonable expectation that law enforcement is capable of tracking a person for a long time.
- What about 1st Amendment issues?
- Barbra Streisand case; coastal documentation captured her residence, and public interest therefore trumped her private interest against invasion of privacy
- Florida Star case – privacy interest in keeping name of rape victim private
Court upheld Florida Star right to publish under First Amendment and public’s right to know
43 States have introduced some drone bill, and 6 States have passed them. 4 active federal bills. Almost all require a warrant for drone use.
- Litigation because FAA reauthorization bill as of February 2012
- August 2014 is when regulation due for use of small UAE’s
Whole thing comes down to “reasonable expectation of privacy” under 4th Amendment; therefore it is “public” versus “private”
- Unreasonable to expect police to turn a blind eye to something observable with naked eye
- However, when government uses a device not in general public use (ex. Thermal imaging), search is presumptively unreasonable. However, drones are now, and will be increasingly more IN GENERAL PUBLIC USE.
- Court has purposefully not addressed when technology that is not physically invasive is used, except this thermal imaging case (ex. Use of GPS tracker on vehicle deemed unconstitutional; however Alito felt that it was based on length of time of tracking)
Remember – “public navigable airspace” is carefully defined in terms of minimum and maximum altitude (except helicopters)
- US v. Causby – chicken farm at end of public runway, and Court decided that if landowner will have full enjoyment of his property, he owns immediate reaches of airspace above
NGO UAVs – private persons have a First Amendment right to gather info; tension with invasion of privacy (Spire v. Phelps), and Supreme Court found against the 1st Amendment BUT Schulman v. Group W Productions (California case) found a reasonable expectation of privacy in a particular situational setting (auto accident scene).
- Industrial and business sites – less reasonable expectation of privacy than residences, but what about trade secrets?
- Physicality and trespass;
- Became one of “reasonable expectation of privacy” (Katz test as the norm);
- Evolving to a “mosaic theory” (combination of factors)
Problem with a subjective, reasonable expectation of privacy is that it is inadequate since it can be beaten by merely announcing on TV every half hour that the government is watching you at all times.
Limited police resources and community hostility were traditional restraints on government surveillance, but GPS (for example) allow it to be excessive; hence move to look at duration of surveillance (raises questions about current UAE ability stay up for days, weeks, months, years).
Olmstead – Justice Taft said Congress could AND SHOULD pass legislation to restrict use of phone/telegraph taps; hence Congressional action needed to limit use of drones for surveillance
- Court looks primarily now at Title III (wiretap Act), not at 4th Amendment, to evaluate law enforcement surveillance methods!
- However – what about preemption concerns given FAA regulations (State laws that conflict with FAA regulations are preempted, unless they are made to address common law of privacy as a tort, property rights, and other areas of traditional State law and NOT federal power)?
- State regulation of its own police powers could likely withstand federal preemption (most present State initiatives in progress)
LITIGATION UNDER 42 USC § 1983
November 14, 2013; State Bar HQ
Complaint forms; responses
Copy of Facility Grievance Procedures
Jail Rosters and officers on duty
Officer documentation of incidents
- Correspondence related to individual
See the Prisoner Self-Help Handbook
Civil Rights of Students Litigated Through 42 USC § 1983:
Adam Wolf and Craig Goodmark
- A. Clothing Codes
- Tinker v. Des Moines (about black armbands protesting Viet Nam war):
- Established idea that students have Constitutional rights in schools
- Students’ rights are generally protected, but yield to reasonable regulation
- Gariano (N.D.Ca): Student showed up in school w/ T-shirt emblazoned with American flag, and wore that shirt that day (Cinco de Mayo); fight-prone past
- There was actual notice from another student suspended for hanging Mexican flag publicly that day
- B. Student Strip Searches
What about other places where drugs could be stashed besides clothing?
- Is there a requirement that the [government officials] check there FIRST?
- No – must merely be “reasonable in relation”
- Is it different in “kind and degree”?
DID NOT TAKE NOTES FOR § 1983 RETALIATORY ACTIONS
- WHAT ABOUT A HABEAS ACTION TO ATTACK THE REGISTRY BECAUSE OF PUNITIVE LANGUAGE?!!!
Erik John Meder
- “Immigrant” versus “Legal worker status”
- Current wave is primarily the poor of other nations
- Because of current American economic conditions, primarily found in the Southeast
- Largest immigrant groups now are Latin American and Asian
1992 Law: Primary source of influence over immigration
- 1996 – small part of the reform law came to prominence post-2001. “Can Congress give their power away to local municipalities to empower them to act against immigrants?”
- Section 287(g) – Act protects them from liability by saying the entity is acting under color of federal authority; most notably in Georgia in COBB COUNTY; 8 USC § 1357(g)(1)?
- O’Connor (interpreting 287(g)): Congress doesn’t have the power to mandate States to exercise federal regulatory authority
December 2012: ICE made a police change saying that only persons that could be detained were violent offenders, DUIs, etc.
- Fewer than 1 in 9 actually meet these standards, and about a third of those that remain detained have absolutely NO record.
- 80-90% denial of Georgia asylum seekers
1st, 4th, 5th, and 14th Amendments apply to illegal aliens as well as citizens (“people”). First Amendment because right implicates rights of citizens to HEAR WHAT ALIENS ARE SAYING!
Open Records Act Investigations
Hollie Manheimer (firstname.lastname@example.org):
- Has been revised under a new Act (April 17, 2012) pushed through under Sam Olens
- Mechanics have changed: generally, agencies covered remain same as 2012 and earlier
- Verbal and oral open records requests still valid (not advised, but valid) – however, remedies only available if written
- Still a 3-day turnaround under law
- Law now requires rolling production if only some is available upon request (more must be provided as it becomes available)
- $.10 per page for public agency papers/ must pre-pay for over $500 requests, or if any past nonpayment issues
Law actually requires that the records be provided by “the most economical means available” – Question: Could you therefore request that documents be e-mailed to you if they were scanned?
- There are CIVIL PENALTIES (available for private action) for negligent violation of the Open Records Act
Qualified Immunity in § 1983 Cases
- State or federal official
- Sued in individual capacity
- For exercise of discretionary function
Cannot sue prosecutors, judges, or legislators (when performing their proper functions)
Qualified immunity to federal agents under Bivens, 403 US 388 (1971)
Qualified immunity to state or local government actors under 42 USC § 1983
Harlow, 457 US 800 (1982):
- Norm for executive branch officials is generally qualified, not absolute, immunity:
“Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
- Created a clarified standard for a district court to base on – easier for Defendant to use qualified immunity and harder for Plaintiff to bring suit
What if there is a split in the Circuits?
- Just because a single judge in a different Circuit differs in their opinion doesn’t mean the disagreement is valid; look to SCOTUS, relevant Circuit, highest relevant State Court
- Whole idea behind qualified immunity is to protect reasonable judgments that are wrong
- Question is not whether the ACTION was reasonable, but whether the actor had a “REASONABLE BELIEF”
LOOK – IT IS NOT A BRIGHT-LINE TEST; IT IS A COMMON SENSE TEST!!!
A denial of a motion to dismiss based on qualified immunity gives rise to an appeal AS A RIGHT (not a need for an interlocutory appeal) – 28 USC § 1291
Insurance and Indemnification for Civil Rights Litigation
G. Brian Spears:
- If action is taken in official capacity, it is “under color of law” – check Supreme Court law on this (there are cases on point)
- Responding to Summary Judgment:
- City policy rider insures/indemnifies for civil rights violations
- Conduct MUST BE more than mere negligence
- See the Georgia Tort Claims Act
- Georgia’s indemnification statute – authorizes the State to purchase liability insurance (they do) for victims of violations of civil rights (note that this is NOT the same as torts – State officials generally enjoy ABSOLUTE IMMUNITY for ordinary tort actions that are not also civil rights actions)
The Law Offices of Merlinus Goodman Monroe, Esq., wish the veterans of the world a wonderful and blessed day.
Veteran’s Day was originally known as “Armistice Day”, and was created by President Wilson in 1918 to commemorate the end of World War I. It actually became a legal holiday in 1938, and became the modern holiday of “Veterans’ Day” under President Eisenhower in 1954.
However, the dithering over this holiday has been a little ridiculous – there would be no country, no laws concerning the issue, and no issue to fight for if not for the uncounted sacrifice in time and lives of the veterans of the world, and we proudly give a moment of silence and respect to true heroes today.
Happy Veterans’ Day!
The substance of what is required under the Georgia opt-in law governing criminal Discovery in Felony cases is found in Section 17-16-4 of the Official Code of Georgia. Basically, it is a way of drastically reducing paperwork by requiring that the commonly-requested applicable items in a criminal felony case be provided by either side without specific request, if the defendant elects to proceed under the Section. It provides as follows:
(a) (1) The prosecuting attorney shall, no later than ten days prior to trial, or at such time as the court orders, disclose to the defendant and make available for inspection, copying, or photographing any relevant written or recorded statements made by the defendant, or copies thereof, within the possession, custody, or control of the state or prosecution and that portion of any written record containing the substance of any relevant oral statement made by the defendant, whether before or after arrest, in response to interrogation by any person then known to the defendant to be a law enforcement officer or member of the prosecuting attorney’s staff. The prosecuting attorney shall also disclose to the defendant the substance of any other relevant oral statement made by the defendant, before or after arrest, in response to interrogation by any person then known by the defendant to be a law enforcement officer or member of the prosecuting attorney’s staff if the state intends to use that statement at trial. The prosecuting attorney shall also disclose to the defendant the substance of any other relevant written or oral statement made by the defendant while in custody, whether or not in response to interrogation. Statements of coconspirators that are attributable to the defendant and arguably admissible against the defendant at trial also shall be disclosed under this Code section. Where the defendant is a corporation, partnership, association, or labor union, the court may grant the defendant, upon its motion, discovery of any similar such statement of any witness who was:
(A) At the time of the statement, so situated as an officer or employee as to have been legally able to bind the defendant in respect to conduct constituting the offense; or
(B) At the time of the offense, personally involved in the alleged conduct constituting the offense and so situated as an officer or employee as to have been legally able to bind the defendant in respect to that alleged conduct in which the witness was involved.
(2) The prosecuting attorney shall, no later than ten days prior to trial, or as otherwise ordered by the court, furnish to the defendant a copy of the defendant’s Georgia Crime Information Center criminal history, if any, as is within the possession, custody, or control of the state or prosecution. Nothing in this Code section shall affect the provisions of Code Section 17-10-2.
(3) (A) Except as provided in subparagraph (B) of this paragraph, the prosecuting attorney shall, no later than ten days prior to trial, or as otherwise ordered by the court, permit the defendant at a time agreed to by the parties or ordered by the court to inspect and copy or photograph books, papers, documents, photographs, tangible objects, audio and visual tapes, films and recordings, or copies or portions thereof and to inspect and photograph buildings or places which are within the possession, custody, or control of the state or prosecution and are intended for use by the prosecuting attorney as evidence in the prosecution’s case-in-chief or rebuttal at the trial or were obtained from or belong to the defendant. Evidence that is within the possession, custody, or control of the Forensic Sciences Division of the Georgia Bureau of Investigation or other laboratory for the purpose of testing and analysis may be examined, tested, and analyzed at the facility where the evidence is being held pursuant to reasonable rules and regulations adopted by the Forensic Sciences Division of the Georgia Bureau of Investigation or the laboratory where the evidence is being held.
(B) With respect to any books, papers, documents, photographs, tangible objects, audio and visual tapes, films and recordings, or copies or portions thereof which are within the possession, custody, or control of the state or prosecution and are intended for use by the prosecuting attorney as evidence in the prosecution’s case-in-chief or rebuttal at the trial of any violation of Part 2 of Article 3 of Chapter 12 of Title 16, such evidence shall, no later than ten days prior to trial, or as otherwise ordered by the court, be allowed to be inspected by the defendant but shall not be allowed to be copied.
(4) The prosecuting attorney shall, no later than ten days prior to trial, or as otherwise ordered by the court, permit the defendant at a time agreed to by the parties or ordered by the court to inspect and copy or photograph a report of any physical or mental examinations and of scientific tests or experiments, including a summary of the basis for the expert opinion rendered in the report, or copies thereof, if the state intends to introduce in evidence in its case-in-chief or in rebuttal the results of the physical or mental examination or scientific test or experiment. If the report is oral or partially oral, the prosecuting attorney shall reduce all relevant and material oral portions of such report to writing and shall serve opposing counsel with such portions no later than ten days prior to trial. Nothing in this Code section shall require the disclosure of any other material, note, or memorandum relating to the psychiatric or psychological treatment or therapy of any victim or witness.
(5) The prosecuting attorney shall, no later than ten days prior to trial, or at such time as the court orders but in no event later than the beginning of the trial, provide the defendant with notice of any evidence in aggravation of punishment that the state intends to introduce in sentencing.
(b) (1) The defendant within ten days of timely compliance by the prosecuting attorney but no later than five days prior to trial, or as otherwise ordered by the court, shall permit the prosecuting attorney at a time agreed to by the parties or as ordered by the court to inspect and copy or photograph books, papers, documents, photographs, tangible objects, audio and visual tapes, films and recordings, or copies or portions thereof and to inspect and photograph buildings or places, which are within the possession, custody, or control of the defendant and which the defendant intends to introduce as evidence in the defense’s case-in-chief or rebuttal at the trial.
(2) The defendant shall within ten days of timely compliance by the prosecuting attorney but no later than five days prior to trial, or as otherwise ordered by the court, permit the prosecuting attorney at a time agreed to by the parties or as ordered by the court to inspect and copy or photograph a report of any physical or mental examinations and of scientific tests or experiments, including a summary of the basis for the expert opinion rendered in the report, or copies thereof, if the defendant intends to introduce in evidence in the defense’s case-in-chief or rebuttal the results of the physical or mental examination or scientific test or experiment. If the report is oral or partially oral, the defendant shall reduce all relevant and material oral portions of such report to writing and shall serve opposing counsel with such portions no later than five days prior to trial. Nothing in this Code section shall require the disclosure of any other material, note, or memorandum relating to the psychiatric or psychological treatment or therapy of any defendant or witness.
(3) (A) The defendant shall, no later than the announcement of the verdict of the jury or if the defendant has waived a jury trial at the time the verdict is published by the court, serve upon the prosecuting attorney all books, papers, documents, photographs, tangible objects, audio and visual tapes, films and recordings, or copies or portions thereof and to inspect and photograph buildings or places which are within the possession, custody, or control of the defendant and which the defendant intends to introduce as evidence in the presentence hearing.
(B) The defendant shall, no later than the announcement of the verdict of the jury or if the defendant has waived a jury trial at the time the verdict is published by the court, serve upon the prosecuting attorney all reports of any physical or mental examinations and scientific tests or experiments, including a summary of the basis for the expert opinions rendered in the reports, or copies thereof, if the defendant intends to introduce in evidence in the presentence hearing the results of the physical or mental examination or scientific test or experiment. If the report is oral or partially oral, the defendant shall reduce all relevant and material oral portions of such report to writing and shall serve opposing counsel with such portions.
(C) The defendant shall, no later than five days before the trial commences, serve upon the prosecuting attorney a list of witnesses that the defendant intends to call as a witness in the presentence hearing. No later than the announcement of the verdict of the jury or if the defendant has waived a jury trial at the time the verdict is published by the court, the defendant shall produce for the opposing party any statement of such witnesses that is in the possession, custody, or control of the defendants or the defendant’s counsel that relates to the subject matter of the testimony of such witnesses unless such statement is protected from disclosure by the privilege contained in paragraph (5), (6), (7), or (8) of subsection (a) of Code Section 24-5-501.
(c) If prior to or during trial a party discovers additional evidence or material previously requested or ordered which is subject to discovery or inspection under this article, such party shall promptly notify the other party of the existence of the additional evidence or material and make this additional evidence or material available as provided in this article.
(d) Upon a sufficient showing that a discovery required by this article would create a substantial threat of physical or economic harm to a witness, the court may at any time order that the discovery or inspection be denied, restricted, or deferred or make such other order as is appropriate. Upon motion by a party, the court may permit the party to make such showing, in whole or in part, in the form of a written statement to be inspected by the judge alone. If the court enters an order granting relief following such an ex parte showing, the entire text of the party’s statement shall be sealed and preserved in the records of the court subject to further order of the court and to be made available to the appellate court in the event of an appeal.
(e) Discovery with respect to alibi witnesses shall be as provided for in Code Section 17-16-5.
However, there are certain very important things that need to be pointed out. Firstly, not everything that a party may need to properly present their case is provided for under this Code section, and if the State isn’t required to provide it then it generally needs to be specially-requested (this is where the recent posts on this site concerning Freedom of Information requests can be a useful tool). Secondly, this is a reciprocal Discovery obligation, and it goes both ways. While the statute only requires that materials obtained by the defendant be provided to the State, also, within ten days of trial, it is often a mistake to let the grass grow under your feet in this situation, and it is very important that a party not forget to give a copy to the State if and when they seek to use that evidence at trial. The provisions governing this, and setting out the penalties for noncompliance (imagine if information exonerates a person entirely but they are not allowed to present it in their defense and are convicted and punished) are found at Section 17-16-2:
(a) This article shall apply to all criminal cases in which at least one felony offense is charged in the event that at or prior to arraignment, or at such time as the court permits, the defendant provides written notice to the prosecuting attorney that such defendant elects to have this article apply to the defendant’s case. When one defendant in a multidefendant case demands discovery under this article, the provisions of this article shall apply to all defendants in the case, unless a severance is granted.
(b) Except as provided in subsection (c) of this Code section, this article shall not apply to juvenile court proceedings.
(c) This article shall be deemed to have been automatically invoked, without the written notice provided for in subsection (a) of this Code section, when a defendant has sought discovery pursuant to Chapter 11 of Title 9, the “Georgia Civil Practice Act,” pursuant to Code Section 15-11-75, or pursuant to the Uniform Rules for the Juvenile Courts of Georgia where such discovery material is the same as the discovery material that may be provided under this article when a written notice is filed pursuant to subsection (a) of this Code section.
(d) Except as provided under Code Section 17-16-8, this article is not intended to authorize discovery or inspection of attorney work product.
(e) This article shall apply also to all criminal cases in which at least one felony offense is charged which was docketed, indicted, or in which an accusation was returned prior to January 1, 1995, if both the prosecuting attorney and the defendant agree in writing that the provisions of this article shall apply to the case.
(f) Except as provided in paragraph (3) of subsection (b) of Code Section 17-16-4, if a defendant has elected to have the provisions of this article apply, the provisions of this article shall also apply to sentencing hearings and the sentencing phase of a death penalty trial.
In seeking Discovery in a criminal case, often the information that is most helpful is NOT the information that a criminal defendant or his or her attorney is given, and the search for answers may require thinking a little further outside the box. To this end, though there are specialized Discovery statutes that allow for certain standard information to be released, there may be other information that law enforcement or other persons have that is needed for defense of someone charged with a crime (as when there are no witnesses, and the story given by the accused is at odds with the narrative of law enforcement).
Though the Georgia statutes designating certain classes of material as “Discoverable” provide for a wide range of material that must be turned over, codified for felony offenses at O.C.G.A. Section 17-16-4 and for misdemeanor crimes at O.C.G.A. Section 17-16-20, they are based on the general idea of Freedom of Information Act requests, included as a part of Georgia law at Section 50-18-71 of the O.C.G.A. The statute has substantial exceptions, that may preclude release of a substantial amount of material, listed in the following section (50-18-72). However, the information permitted, if it is specifically designated – specifically and repeatedly emphasized by Section 50-18-71 to be IN EXISTENCE AT THE TIME THE REQUEST IS MADE – and it is available, must be provided within a “reasonable time”, not to exceed three (3) business days, according to the statute. This is very useful for finding information that might otherwise be withheld.
Section 50-18-71 of the Official Code of Georgia reads as follows:
(a) All public records shall be open for personal inspection and copying, except those which by order of a court of this state or by law are specifically exempted from disclosure. Records shall be maintained by agencies to the extent and in the manner required by Article 5 of this chapter.
(b) (1) (A) Agencies shall produce for inspection all records responsive to a request within a reasonable amount of time not to exceed three business days of receipt of a request; provided, however, that nothing in this chapter shall require agencies to produce records in response to a request if such records did not exist at the time of the request. In those instances where some, but not all, records are available within three business days, an agency shall make available within that period those records that can be located and produced. In any instance where records are unavailable within three business days of receipt of the request, and responsive records exist, the agency shall, within such time period, provide the requester with a description of such records and a timeline for when the records will be available for inspection or copying and provide the responsive records or access thereto as soon as practicable.
(B) A request made pursuant to this article may be made to the custodian of a public record orally or in writing. An agency may, but shall not be obligated to, require that all written requests be made upon the responder’s choice of one of the following: the agency’s director, chairperson, or chief executive officer, however denominated; the senior official at any satellite office of an agency; a clerk specifically designated by an agency as the custodian of agency records; or a duly designated open records officer of an agency; provided, however, that the absence or unavailability of the designated agency officer or employee shall not be permitted to delay the agency’s response. At the time of inspection, any person may make photographic copies or other electronic reproductions of the records using suitable portable devices brought to the place of inspection. Notwithstanding any other provision of this chapter, an agency may, in its discretion, provide copies of a record in lieu of providing access to the record when portions of the record contain confidential information that must be redacted.
(2) Any agency that designates one or more open records officers upon whom requests for inspection or copying of records may be delivered shall make such designation in writing and shall immediately provide notice to any person upon request, orally or in writing, of those open records officers. If the agency has elected to designate an open records officer, the agency shall so notify the legal organ of the county in which the agency’s principal offices reside and, if the agency has a website, shall also prominently display such designation on the agency’s website. In the event an agency requires that requests be made upon the individuals identified in subparagraph (B) of paragraph (1) of this subsection, the three-day period for response to a written request shall not begin to run until the request is made in writing upon such individuals. An agency shall permit receipt of written requests by e-mail or facsimile transmission in addition to any other methods of transmission approved by the agency, provided such agency uses e-mail or facsimile in the normal course of its business.
(3) The enforcement provisions of Code Sections 50-18-73 and 50-18-74 shall be available only to enforce compliance and punish noncompliance when a written request is made consistent with this subsection and shall not be available when such request is made orally.
(c) (1) An agency may impose a reasonable charge for the search, retrieval, redaction, and production or copying costs for the production of records pursuant to this article. An agency shall utilize the most economical means reasonably calculated to identify and produce responsive, nonexcluded documents. Where fees for certified copies or other copies or records are specifically authorized or otherwise prescribed by law, such specific fee shall apply when certified copies or other records to which a specific fee may apply are sought. In all other instances, the charge for the search, retrieval, or redaction of records shall not exceed the prorated hourly salary of the lowest paid full-time employee who, in the reasonable discretion of the custodian of the records, has the necessary skill and training to perform the request; provided, however, that no charge shall be made for the first quarter hour.
(2) In addition to a charge for the search, retrieval, or redaction of records, an agency may charge a fee for the copying of records or data, not to exceed 10 cent(s) per page for letter or legal size documents or, in the case of other documents, the actual cost of producing the copy. In the case of electronic records, the agency may charge the actual cost of the media on which the records or data are produced.
(3) Whenever any person has requested to inspect or copy a public record and does not pay the cost for search, retrieval, redaction, or copying of such records when such charges have been lawfully estimated and agreed to pursuant to this article, and the agency has incurred the agreed-upon costs to make the records available, regardless of whether the requester inspects or accepts copies of the records, the agency shall be authorized to collect such charges in any manner authorized by law for the collection of taxes, fees, or assessments by such agency.
(d) In any instance in which an agency is required to or has decided to withhold all or part of a requested record, the agency shall notify the requester of the specific legal authority exempting the requested record or records from disclosure by Code section, subsection, and paragraph within a reasonable amount of time not to exceed three business days or in the event the search and retrieval of records is delayed pursuant to this subsection or pursuant to subparagraph (b)(1)(A) of this Code section, then no later than three business days after the records have been retrieved. In any instance in which an agency will seek costs in excess of $25.00 for responding to a request, the agency shall notify the requester within a reasonable amount of time not to exceed three business days and inform the requester of the estimate of the costs, and the agency may defer search and retrieval of the records until the requester agrees to pay the estimated costs unless the requester has stated in his or her request a willingness to pay an amount that exceeds the search and retrieval costs. In any instance in which the estimated costs for production of the records exceeds $500.00, an agency may insist on prepayment of the costs prior to beginning search, retrieval, review, or production of the records. Whenever any person who has requested to inspect or copy a public record has not paid the cost for search, retrieval, redaction, or copying of such records when such charges have been lawfully incurred, an agency may require prepayment for compliance with all future requests for production of records from that person until the costs for the prior production of records have been paid or the dispute regarding payment resolved.
(e) Requests by civil litigants for records that are sought as part of or for use in any ongoing civil or administrative litigation against an agency shall be made in writing and copied to counsel of record for that agency contemporaneously with their submission to that agency. The agency shall provide, at no cost, duplicate sets of all records produced in response to the request to counsel of record for that agency unless the counsel of record for that agency elects not to receive the records.
(f) As provided in this subsection, an agency’s use of electronic record-keeping systems must not erode the public’s right of access to records under this article. Agencies shall produce electronic copies of or, if the requester prefers, printouts of electronic records or data from data base fields that the agency maintains using the computer programs that the agency has in its possession. An agency shall not refuse to produce such electronic records, data, or data fields on the grounds that exporting data or redaction of exempted information will require inputting range, search, filter, report parameters, or similar commands or instructions into an agency’s computer system so long as such commands or instructions can be executed using existing computer programs that the agency uses in the ordinary course of business to access, support, or otherwise manage the records or data. A requester may request that electronic records, data, or data fields be produced in the format in which such data or electronic records are kept by the agency, or in a standard export format such as a flat file electronic American Standard Code for Information Interchange (ASCII) format, if the agency’s existing computer programs support such an export format. In such instance, the data or electronic records shall be downloaded in such format onto suitable electronic media by the agency.
(g) Requests to inspect or copy electronic messages, whether in the form of e-mail, text message, or other format, should contain information about the messages that is reasonably calculated to allow the recipient of the request to locate the messages sought, including, if known, the name, title, or office of the specific person or persons whose electronic messages are sought and, to the extent possible, the specific data bases to be searched for such messages.
(h) In lieu of providing separate printouts or copies of records or data, an agency may provide access to records through a website accessible by the public. However, if an agency receives a request for data fields, an agency shall not refuse to provide the responsive data on the grounds that the data is available in whole or in its constituent parts through a website if the requester seeks the data in the electronic format in which it is kept. Additionally, if an agency contracts with a private vendor to collect or maintain public records, the agency shall ensure that the arrangement does not limit public access to those records and that the vendor does not impede public record access and method of delivery as established by the agency or as otherwise provided for in this Code section.
(i) Any computerized index of county real estate deed records shall be printed for purposes of public inspection no less than every 30 days, and any correction made on such index shall be made a part of the printout and shall reflect the time and date that such index was corrected.
(j) No public officer or agency shall be required to prepare new reports, summaries, or compilations not in existence at the time of the request.
In Georgia, Section 3-3-37 of the Official Code of Georgia sets out the method for seeking correction of an erroneous criminal history. In part, that procedure is described in subsections (d) to (g)(2):
“(d) If an individual believes his or her criminal history record information to be inaccurate, incomplete, or misleading, he or she may request a criminal history record information inspection at the center. The center at which criminal history record information is sought to be inspected may prescribe reasonable hours and places of inspection and may impose such additional procedures or restrictions, including fingerprinting, as are reasonably necessary to assure the security of the criminal history record information, to verify the identities of those who seek to inspect such information, and to maintain an orderly and efficient mechanism for inspection of criminal history record information. The fee for inspection of criminal history record information shall not exceed $15.00, which shall not include the cost of the fingerprinting.
(e) If the criminal history record information is believed to be inaccurate, incomplete, or misleading, the individual may request that the entity having custody or control of the challenged information modify, correct, supplement, or amend the information and notify the center of such changes within 60 days of such request. In the case of county and municipal jails and detention centers, such notice to the center shall not be required. If the entity declines to act within 60 days of such request or if the individual believes the entity’s decision to be unsatisfactory, within 30 days of the end of the 60 day period or of the issuance of the unsatisfactory decision, whichever occurs last, the individual shall have the right to appeal to the court with original jurisdiction of the criminal charges in the county where the entity is located.
(f) An appeal pursuant to subsection (e) of this Code section shall be to acquire an order from the court with original jurisdiction of the criminal charges that the subject information be modified, corrected, supplemented, or amended by the entity with custody of such information. Notice of the appeal shall be provided to the entity and the prosecuting attorney. A notice sent by registered or certified mail or statutory overnight delivery shall be sufficient service on the entity having custody or control of the disputed criminal history record information. The court shall conduct a de novo review and, if requested by a party, the proceedings shall be recorded.
(g) (1) Should the court find by a preponderance of the evidence that the criminal history record information in question is inaccurate, incomplete, or misleading, the court shall order such information to be appropriately modified, corrected, supplemented, or amended as the court deems appropriate. Any entity with custody, possession, or control of any such criminal history record information shall cause each and every copy thereof in its custody, possession, or control to be altered in accordance with the court’s order within 60 days of the entry of the order.
(2) To the extent that it is known by the requesting individual that an entity has previously disseminated inaccurate, incomplete, or misleading criminal history record information, he or she shall, by written request, provide to the entity the name of the individual, agency, or company to which such information was disseminated. Within 60 days of the written request, the entity shall disseminate the modification, correction, supplement, or amendment to the individual’s criminal history record information to such individual, agency, or company to which the information in question has been previously communicated, as well as to the individual whose information has been ordered so altered.”
Of note is the portion of this law found in Section 35-3-35(c), which apparently restricts the liability of the agency and State employees for errors in a person’s criminal history:
“(c) Neither the center, its employees, nor any agency or employee of the state shall be responsible for the accuracy of information disseminated nor have any liability for defamation, invasion of privacy, negligence, nor any other claim in connection with any dissemination pursuant to this Code section and shall be immune from suit based upon such claims.”
I will look further into the case law on this issue, as an incorrect criminal history seems like it could do serious damage to an individual. If anybody has experience with such recovery, please feel free to comment!
I see that I have many daily visitors to my site, which is an overwhelming compliment, as I try to spread the knowledge I acquire and the fruits, and follies, of my various litigation and litigation-related experiences. However, many of my posts contain legal arguments, and I honestly want your input into these. If you disagree with something you read, or would approach a situation differently, let me know! There is a “comment” button on each entry, and I encourage you to engage me in debate on these posts when you read something averse to your reason!