Fall 1999

If you've ever had a civics class, you probably know that the government and laws of this country were established by the U.S. Constitution. But not every law is contained in the body of the Constitution itself.

Many of the laws we consider our constitutional rights are found in the first 10 amendments to the Constitution known as the Bill of Rights. These rights were added to the U.S. Constitution on Dec. 15, 1791.

Some people consider the First Amendment of the Bill of Rights to be the most important. This amendment guarantees every American three freedoms that are essential to democracy.

Under the First Amendment, you are guaranteed freedom of religion, freedom of speech and of the press, and freedom to attend public meetings and petition your government - to tell it of changes you would like to see in the law. Simply put, the First Amendment protects your right to worship freely, to speak, read and write freely and to meet freely.

Freedom of religion

Can your public school enforce a policy requiring each school day to begin with a prayer? The First Amendment says it cannot because the Bill of Rights guarantees the right of everyone in your school to worship as he or she chooses - or not to worship at all. A prayer, that is compelled in public school, however simple, may not reflect the religious beliefs of every student. And for those who choose not to follow any faith, that prayer would not reflect their choice at all.

Speak up

One of the great things about living in the United States is your right to free speech. Let's say you are a Star Wars fan who went to see The Phantom Menace over the summer and thought it was awful. The First Amendment gives you the right to express your opinion to anyone who will listen. And if your school has a newspaper, you can write a review of the movie and say exactly what you thought of it. Your friends may disagree with you, but it's their constitutional right of free speech to express their opinions too.

Other examples of free speech would be if your parents buy a car and it keeps breaking down, they can tell everyone they know what a "lemon" that car is. If you think the President of the United States is a great president, you can express that view freely and openly. If you think he's not great at all and think someone else would do a better job, you can say so just as freely.

The First Amendment guarantees that you cannot be stopped from saying what you think - not by the producers of Star Wars, not by the manufacturer of your parent's car and not by the president or the government. The First Amendment also guarantees your right to express your opinion without speaking. Free speech includes wearing a button, carrying a sign, putting a bumper sticker on your car or wearing a T-shirt with a message on it.

Can I say anything?

So, does that mean that anyone can say anything at any time? Are there ever limits to your right to free speech under the Bill of Rights?

The answer is yes, because no right is absolute. You are expected to exercise your right to free speech like every other right you enjoy - in a reasonable way at the right time and in the right place. Your right to free speech does not permit you to stand up in the middle of class, interrupt a lesson and just speak out anytime you have something important to say. You may be in the right place, but it would not be the right time and it certainly would not be reasonable or fair to your classmates or your teacher.

And no one can yell "FIRE!" in a public place when there is no fire so that it causes people to run for the exits in panic. The U.S. Supreme Court has held that any form of speech designed to cause harm to other people is not entitled to protection by the First Amendment. Speech that tries to stir up people to become violent toward others is not protected. Speech that tries to get people to damage the property of others is also not protected.

Stop the presses

The First Amendment not only protects your right to express your own ides and opinions, it also protects your right to read and hear the ideas and opinions of others. That right is called freedom of the press and it applies to books, newspapers, magazines, radio and television.

Under freedom of the press, a publisher can print a book that claims aliens from other planets live among us. A newspaper can print editorials stating opinions about anything and everything. Magazines can print articles about the lives of famous people. And radio and television can broadcast stories about any event they find interesting or important in this country or in other countries around the world. Whether anyone agrees with the ideas presented in these books, newspapers, magazines or broadcasts is up to each individual, but the First Amendment protects the right for these ideas to be presented.

Petitioning your government

What about the First Amendment's right to petition? Let's say you are a member of your school's soccer team. There is only one field at your school and that is where the football team practices and holds its games.

Under the First Amendment's right to petition, you and your teammates can write to your county park and recreation department and ask for a playing field in your town park. If you are assigned a field to play on, you have successfully petitioned a government office.

But what if you are told that no field is available? Then you have the right to go further and send a letter, or a petition, to your county freeholder. If you are told again that no field is available, you can go on to appeal to your district assemblyperson and your senator. Under the First Amendment, you have the right to petition all these people to try to get your government to respond to your need for a soccer field.

Think for a minute about the First Amendment and try to imagine what it would be like if you did not have the constitutional rights it protects. Are there any rights you would like to see expanded? Do you think any should be limited?

Roberta K. Glassner practices personal injury law and is an attorney with the New Brunswick law firm of Wysoker, Glassner, Weingartner, Gonzalez & Lockspeiser.

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The Second Amendment to the U.S. Constitution protects every U.S. citizen's "right to bear arms." Or does it? This question remains in debate as 20th century concerns about violence in our society intensify.

What does the Second Amendment say?

Specifically, the Second Amendment states: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Does this mean that every private U.S. citizen should be entitled to keep and bear a gun? Or should only those who are acting in some kind of organized "militia," such as the police or government-sanctioned armed forces, be entitled to carry weapons? To make a determination on this issue one might consider what was happening in our country in 1791, when the Second Amendment was ratified as part of the Bill of Rights.

At that time, our nation had only recently won its independence from the British in the American Revolution, and George Washington was just two years into his term as the first president of the United States. A formal "police force," as we know it today, did not exist and much of the structure of our government was just being established. In sharp contrast with the 1990s, the "arms" in question at that time were muskets, not machine guns, and weapons were largely reserved for hunters or soldiers in battle.

What would our forefathers say today?

As we get ready to enter the next century, the debate over the meaning of the Second Amendment continues.

Lobbyists for gun control argue that the Second Amendment was not intended to guarantee private citizens the absolute right to own guns, and they argue that the government has the power to regulate the sale and ownership of firearms. Gun lobbyists, on the other hand, such as the National Rifle Association (NRA), point to the words of the Second Amendment and strongly defend an individual's "right to keep and bear arms."

What does the Court say?

To date, the U.S. Supreme Court has not clearly defined which of these arguments is correct, and the intent of the Second Amendment remains in question. There are, however, a number of federal and state laws governing the issue of gun control.

According to New Jersey Deputy Attorney General Carol Henderson, a person who wants to buy a gun in New Jersey must be an adult, must apply to his or her local police department for a firearms purchaser identification card and must pass a fingerprint check. Once the ID card is obtained, a person must wait seven days before buying a gun.

To obtain a firearms purchaser ID card, a person must be of good character and good repute, Henderson said. This is defined in terms of "disabilities." For example, a person who has been convicted of a crime, or who has a domestic order against him or her prohibiting gun ownership, is considered to have a disability and is not eligible to purchase a gun. Other disabilities include being drug dependent, an abuser of alcohol or confined to a hospital, institute or sanitarium for a mental problem. Also, a person with a physical defect or disease that would make it unsafe for him or her to have a gun is considered disabled and is not allowed to purchase a gun.

Henderson noted that exceptions in some of the above cases may be made if the gun applicant has a certificate from a medical doctor or psychiatrist stating that he or she no longer suffers from the disability.

What are the laws for minors?

In accordance with New Jersey law, minors, or individuals under age 18, may not own, carry or use firearms except under specific circumstances.

For example, a minor may hunt with a firearm only if he or she is under the direct supervision of the person who has a firearms purchaser ID for the gun, and only if the minor has passed a special hunter's exam. Also, minors may use firearms for target shooting only if the shooting takes place at a range that is approved by the town where the range is located, and only if there is competent adult supervision.

How should guns be transported?

Just as there are specific laws for purchasing guns, there are also set regulations for transporting firearms, Henderson noted. For example, most individuals who use their firearms for such purposes as hunting and target shooting must keep their guns in a locked case in the locked trunk of their car, and may only transport their guns to and from their intended destination.

People who wish to have more extensive "carrying" rights must apply with their local police chief for a permit to carry a gun. If approved by the police chief, the Superior Court of New Jersey in the county where the applicant lives must then approve the application. The court may grant a permit to carry at all times, which is highly unusual, or a limited permit to carry.

Permits to carry are very restrictive, Henderson said. For example, applicants must meet the requirements for purchasing a gun and must also show a justifiable need to carry a gun, such as for their job. An example of this might be an employee of an armored car company.

What is the Brady Bill?

In addition to state laws, there are also federal laws governing gun control. One of the most widely known among these is the Brady Bill, named after former White House press secretary James Brady, who was shot and seriously injured during a 1981 assassination attempt on President Ronald Reagan.

While laws in New Jersey require a seven-day waiting period, the Brady Bill gives law enforcement officials in other states that do not have similar gun control laws, five working days to run a background check on prospective handgun buyers. These federal and state laws are intended to stop the sale of guns to felons and those who otherwise do not qualify to own guns.

The debate continues

As violence continues to plague our society, the topic of gun control remains a serious local and national concern. Legislators, politicians and others continue to debate the range of the Second Amendment as they draft laws that strike a balance between a person's "right to bear arms" and public safety.

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When you think of the courts, you probably think of a judge in a long black robe calling the court to order with a hardy bang of the gavel. But there are a lot of other people who work in the court system to keep the wheels of justice turning.

In addition to the judge, people who work for the courts include court reporters, who transcribe court proceedings; clerks, who keep track of cases filed with the court; and court administrators, who supervise other court employees and help manage the daily operations of the court.

Another group of people who work closely with judges are probation officers. Probation officers are very important to the court system and have various responsibilities. One of their duties is to supervise people who have been placed on probation. Probation is a sentence, just like a prison term, that judges can impose on a defendant who has been convicted of a crime.

Probation is usually imposed on a defendant who is a first-time offender and has committed a non-violent crime. If a criminal offender is sentenced to probation, he or she serves the sentence in the community rather than behind bars. While on probation, offenders can continue working in their jobs and maintain contact with their families.

The kind of supervision that each offender receives while on probation depends on what the judge ordered. In sentencing someone to probation, a judge may require the offender to pay fines or to reimburse the victim of his or her crime. The judge may also require the person to get counseling for a drug abuse or mental health problem. Judges often require offenders to perform community service, such as cleaning litter from a park or highway or removing graffiti from a building. Offenders are not paid for community service.

The probation officer's job is to make sure that offenders who have been sentenced to probation do all the things that the judge has ordered. Offenders who violate the terms of their probation by not doing what they were required may be ordered back to court and sentenced to prison. While supervising offenders, probation officers also offer them counseling to help them live productive, law-abiding lives.

It is important to know the difference between probation officers and another kind of officer you may have heard of - parole officers. Probation officers work for the courts and supervise offenders who have been sentenced to probation instead of prison. Parole officers, on the other hand, work for law enforcement, such as the police, and supervise people after they have been released from prison.

Probation officers also enforce child support orders, another kind of court order. Child support orders are issued in cases where a child's parents do not live together, such as when the parents are divorced or were never married. A child support order requires one parent to pay the other parent an amount of money to help care for their child or children.

Another important function of a probation officer is to write reports that assist judges in making decisions about sentencing. Before a judge sentences someone to prison or probation, a probation officer will write what is called a pre-sentence report. The pre-sentence report provides details about the defendant's background as well as the impact of the crime. In the case of juveniles, the probation officer writes what is called a pre-disposition report. The information in these reports gives judges the facts they need to make important decisions that affect not just criminals, but the lives of all New Jersey citizens.

Rich Pliskin is a former public affairs coordinator for the New Jersey Administrative Office of the Courts in Trenton.

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The following is a case written by Manuela Gonnella's former 8th grade class at Bloomfield Middle School in Bloomfield. This case was written in conjunction with the New Jersey State Bar Foundation's Law Adventure Competition and was among the winning cases of 1999.

Jean Yus, a senior at Bloomfield High School, applied for a highly competitive scholarship. She was a member of the National Honor Society and involved in many extracurricular activities, including the Ecology Club where she was president.

To qualify for the scholarship, a student was required to score a minimum of 1400 on the SATs, maintain a 3.5 grade point average, show and promote good citizenship and be involved in his or her community. Jean Yus fulfilled all of those requirements.

On Thursday, April 5, 1998, Jean Yus received a letter from the scholarship committee stating that she was one of three finalists. The letter invited her to an awards dinner on April 11, 1998. The following day, the scholarship committee called Ken I. Tel, Jean's history teacher, to inform him of the news, as he had written a recommendation for her. The committee told him that Jean Yus was chosen as the winner but he was not to say anything to her.

On Saturday, April 7, 1998, Jean Yus was involved in a protest against a local corporation called Paul Lucian Company. The protesters were voicing their concerns about the company polluting local waters. The scene quickly turned ugly, as demonstrators became violent. Jean Yus and the rest of the activists were arrested. Later that evening, the charges were dropped. The next day an article appeared on the front page of the Bloomfield Times with the headline, "Local Honor Student Leads Violent Protest." The article included a photograph of the incident. In addition, the newspaper wrote that Jean Yus was the leader of the activist group and a "radical."

On Monday, April 9, 1998, the scholarship committee called Jean Yus to regretfully inform her that she was no longer a finalist. Due to her actions during the protest, the committee felt that she no longer deserved the honor. Devastated, Jean Yus immediately told her favorite history teacher what occurred. Ken I. Tel was shocked when he heard the news and confided in Jean that he had been told she was the scholarship committee's first choice.

Jean Yus holds the Bloomfield Times responsible for being dropped from the running and is now suing the newspaper for defamation of character.

Nita Storee, the reporter who wrote the article, claims that she saw Jean leading the crowd in a wildly chaotic revolt, shouting in a malicious tone and looking very angry. She contends that it is her job to report what she sees, and she saw Jean Yus encouraging the crowd.

THE LAW

The First Amendment to the U.S. Constitution states that "Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble." The defamation law regarding private individuals states that journalists must take special care when writing an article about a private individual. Private citizens do not have to prove actual malice. All they must prove is that the reporter was negligent in reporting the story.

THE ISSUES

The plaintiff, Jean Yus, must prove by a preponderance of the evidence that the article in the Bloomfield Times intentionally harmed her reputation, which caused her to lose the scholarship. Is the newspaper article responsible for harming the reputation of Jean Yus, causing her to lose the scholarship? Did the article unjustly hurt Jean's reputation? Did Nita Storee verify the information in her story or use the opportunity to write a scandalous story that would make the front page?

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Q: Why don't all schools have metal detectors? - Brandon Carrier

A: Dr. Tom Collins, Coordinator of Evaluation, Division of Student Services, New Jersey State Department of Education, Trenton - There is no state law or regulation mandating metal detectors in every school. The Department of Education wants a safe school environment for all students. The decision for how that safe school environment is achieved is left up to each school district.

Q: When parents get divorced, do the kids have to pick who they want to live with? - Brian Unger

A: Patricia M. Barbaritio, Esq., Einhorn, Harris, Ascher, Barbarito, Frost & Ironson, Denville - As a child gets older, his or her input may be a factor in the decision, however, the parents and/or the judge ultimately make the decision as to what is in the child's best interest. Generally, what happens is a child psychologist will interview a child. If the child is seven years of age or older, the judge will interview him or her. In the end, a child's preference is a factor in the decision-making process, but not the deciding factor. The deciding factor is what is in their best interests and is made by the judge and the parents.

Q: My mother was in a car accident a few years ago and I was wondering, how would a case like this be solved if there was no actual proof whose fault it was? - Kristina Hernandez-Eddy

A: Brian Lehrer, Esq., Buttafuoco, Karpf & Arce, Kearney - The law states that if a vehicle is struck from behind, the driver that struck the car is responsible for the damages. If the case is not that simple and a lawsuit is brought, both sides would tell their story to a jury and present evidence, such as damage to the vehicles, skidmarks at the scene of the accident, etc. When both sides are heard, the jury determines who is telling the truth. Once both arguments have been presented, the case comes down to who the jury believes. The jury also decides how much money to award.

Q: Can children be questioned by police without their parents present? - Jennifer Moniz

A: Boris Moczula, Esq., First Assistant Passaic County Prosecutor, Paterson - Normally, juvenile interrogations should take place in the presence of the juvenile's parents or guardians even if the juvenile has waived his or her rights. The police may interrogate a juvenile without his or her parent/guardian present only if (1) the juvenile has refused to reveal the name or address of his or her parent/guardian, (2) a good faith effort to locate the parent/guardian is unsuccessful, or (3) a parent is located and he or she refuses to attend the interrogation or indicates that he or she does not wish to attend. In addition, a parent/guardian may not be denied the opportunity to speak with his or her child while the child is in police custody.

Send your questions to: The Legal Eagle Editor, NJSBF, One Constitution Square, New Brunswick, NJ 08901.

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community service - instead of jail time an offender can be sentenced to performing a service that benefits his or her community such as cleaning litter from a park or removing graffiti from a building.

constitutional rights - a right guaranteed to U.S. citizens by the U.S. Constitution and state constitutions.

defamation - a deliberate false statement, either published or publicly spoken, that injures another person's reputation.

democracy - a government run by the people through elected representatives.

liability insurance coverage - a certain amount of insurance that one must carry.

maritime - anything having to do with the commerce of the sea, ocean, Great Lakes etc.

statute - legislation that has been signed into law.

tenure - in academics, the permanence of a position after a certain number of years.

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