New Mexico Civil Rights Law Blog : New Mexico Civil Rights Lawyer & Attorney : Kennedy Law Firm : Albuquerque NM Excessive Force & Police Misconduct

          We have recently had complaints from parents about children as young as eight to ten years old being placed in handcuffs.  The Kennedy Law Firm believes that placing handcuffs on children, in most situations, is excessive force.  

          That our children are protected from certain law enforcement actions should not surprise us.  This protection is a surprise to many law enforcement officers, however.  When a juvenile commits an act that would be a crime if an adult had committed the same act, the law treats the juvenile differently, especially when the child is younger than eleven years old.

          In New Mexico, police may not hold a child under eleven in detention.  New Mexico Statues Annotated, Section 32A-2-10(C)("A child under the age of eleven shall not be held in detention").  So, if a police officer or school official restrains a child eleven or younger in handcuffs, the officer is violating the law.  Restraining children can cause long lasting psychological harm.  There is usually no reason to restrain children under eleven years old, as they typically weigh 60 pounds or less.

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Most people have their greatest contact with their government at school.  When we send our children to public school, we are entrusting them to our government.  When we hand our children off to the local school's administrators, teachers, security officials and police we trust our children to government employees.  They have a great opportunity for good, but they also have great power to damage.  

Sexual abuse or physical abuse of a child in school deprives them of their right to education and their right to bodily integrity.  These rights are guaranteed under the Fourteenth Amendment to our constitution.  See, SH.A. v. Tucumcari Municipal Schools, 321 F.3d  1285 (10th Cir. 2003)(You can read the opinion in the link below). Horrible acts like sexual abuse cry out for justice and reparation.  When sexual abuse happens in school, it violates the child's civil rights.  For that reason, parents of children who suffer sexual or physical abuse in school should seek out a law firm experienced in civil rights work.  Civil rights work requires in depth knowledge of federal statues and laws that allow for maximum recovery of damages in abuse cases.  In the Kennedy Law Firm, our background is civil rights.  We have represented clients in civil rights cases, including sexual abuse survivors, for over twenty years.  If your family should suffer the tragedy of abuse, the Kennedy  Law Firm is ready to fight for you.

ca10.washburnlaw.edu/cases/2003/03/02-2108.htm

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          Law enforcement officers and the public often have the misconception that an entry into a person's home, absent an active "looking for something or someone", is not a search under the Fourth Amendment. However, the physical act of crossing a home's threshold constitutes a "search" within the meaning of the Fourth Amendment. Payton v. New York, 445 U.S. 573, 576 (1980). Always remember that "search" is a legal term of art that means more than simply seeking out something or someone. Our courts describe a "search" as an intrusion upon a person's reasonable expectation of privacy.

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          The Tenth Circuit affirmed the conviction of a man for child sexual abuse after deciding that the trial court correctly admitted evidence of a 1995 conviction for sexual assault of a minor.  You can read the opinion here:  http://www.ca10.uscourts.gov/opinions/09/09-8079.pdf

           In United States v. Batton, 2010 U.S. App. Lexis 8509, the defendant was convicted of taking a fourteen year old boy to Chicago and sexually assaulting him.  The defendant appealed his conviction and complained that the trial judge should have excluded evidence of a 1995 conviction for child molestation.  The Tenth Circuit examined Federal Rule of Evidence 413 and held that the district court properly admitted evidence of a conviction for a similar sexual assault in 1995.

           Typically, evidence of prior acts that are similar to the act a person is accused of are excluded from evidence.  Federal Rule of Evidence 403(A).  However, Rule 413 is directed specifically toward defendants being prosecuted for sexual assault.  Rule 414 allows admission of prior acts in child molestation cases.  The reasoning for the rules, as the Court explained, is that evidence other than testimony is many times unavailable in prosecutions of child molestation cases and child molestation is often a repeated act.  As the Tenth Circuit stated:

As we noted in United States v. Enjady, 134 F.3d 1427 

(10th Cir. 1998), Congress enacted these rules because these types of cases often 

raise questions regarding the victim’s credibility and a defendant’s prior conduct 

can be especially probative.  Id. at 1431.  Additionally, the rules are “based on the 

premise that evidence of other sexual assaults is highly relevant to prove 

propensity to commit like crimes.”  Id.  

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