Thursday, May 24, 2012

Freedom & Strip Searches

Summer is upon us and summer makes me think of potato salad, fresh melon and freedom. In 2002 I argued a case before the Fourth District Court in People v. Johnson, 334 Il. App. 3d. 666 (4th Dist. 2002). The court ruled despite my arguments to the contrary that it was permissible to strip-search a person held on a civil warrant. Last month the United State's Supreme Court ruled in a case titled Florence v. Board of Chosen Freeholders of County of Burlington. The issue in that case was if it was permissible to strip search a person accused of some minor infraction. The court ruled that such a search was permissible.

I obviously do not want to argue a person suspected of hiding a weapon should not be subject to a search before being placed in a jail population. If the officer has reason to suspect someone of hiding something they should be able to search that person prior to that person being placed in a cell. Yet the courts are saying it is fine to strip search a person when there is no probable cause or even reasonable suspicion to believe they are hiding anything. Further the courts approved not just a pat down search but a full on check your genitals type of strip search.

I don't believe these searches are intended to find weapons. After all a well trained officer shouldn't need to strip search a person to find a gun, knife or even a razor blade. Officers who stop you on the side of the road and do a pat down search know their lives may be on the line. They know how to do a thorough weapons search. Despite the claims in both of these cases the real purpose of the search is for drugs. I would rather one or two prisoners get away with a rock of cocaine or a joint up their hiney than thousands of people endure the humiliation of a strip search. A person should be punished for being late on a child support payment or for running a red light yet this added humiliation is ridiculous.

This is but another example of the willingness of a nation to throw away a gift as precious as freedom for the illusion of security. I don't know about you but I don't feel any safer since I had to endure searches at airports that are more intrusive than the moves a teenage boy puts on his girlfriend at the movies. I certainly don't feel any safer knowing that people who are picked up on a civil warrant are being strip searched.

As with most problems in this nation this is not one that can be solved easily at the ballot box. Neither party appears to truly desire to fight for the freedoms of average Americans. The one thing both parties seem to support is the weakening the Fourth Amendment. The Patriot Act as well as others are simply further attempts to strike down individual liberties. I can assume the name Patriot Act was intended to be sarcastic. As Samuel Johnson said in 1775  "Patriotism is the last refuge of a scoundrel". I love this nation, and as a Patriot I would like to see her people remain free.

I understand most people do not support my position today. If they did politicians and justices might act differently. That being said I hope this blog gives you something to think about.The Constitution was designed to protect the individual from the government. As Ronald Reagan once said, "The Constitution is a document in which 'We the people' tell the government what it is allowed to do. 'We the people are free'".

Thursday, March 15, 2012

The 4th Amendment - Ron Paul

I went to see Ron Paul on March 14, 2012 at the University of Illinois. I am not a supporter of Dr. Paul. This blog does not support any political candidate. I'm also concerned about the claims that Dr. Paul had racist materials printed in his newsletter.

That being said this is a legal blog and Dr. Paul did bring up a legal issue. He talked about the Fourth Amendment to the United State's Constitution. He talked about the willingness of Congress to grant the government ther right to enter our homes, examine our bank records, tap our telephone calls and detain American citizans without a trial. Dr. Paul was concerned that the Patriot Act as well as the National Defense Authorization Act step on important freedoms guaranteed by the Constitution.

I don't want to go into more details about the acts specifically. I do want to bring up a question raised by Dr. Paul. Why is no one talking about this legislation. Why are politicians giving away our fundamental rights without public debate? Why are politicians from the Democratic as well as the Republican party so willing to sell out our fundamental rights against illegal searches and seizures?

In American history the government has stomped on the fundamental rights of her citizans during times of war. The internment of American citizens of Janpanese descent during World War II is an obvious example. Now we are doing the same thing in the guise of the war on terror and the war on drugs. If the object of our government is to stop the terrorists and drug dealers before they are able to end the American way of life than they have failed. How can someone take away what we have been so willing to give away?

Friday, December 9, 2011


As the holiday season comes around so do conflicts over holiday visitation. If parents can't work together than they must at least keep the conflict from their children. You want their memories to be about the holidays and not about the conflict. Most of the time the Christmas break is divided evenly with one party having visitation on Christmas Eve and the other having visitation on Christmas day. That schedule is usual switched every year so each party will receive visitation on Christmas day every other year.

This schedule can be an opportunity for new traditions. Children will often see this as getting an extra day of Christmas since they will have two opportunity's to receive presents. I find that parents are more upset about this type of arraignment than the children. I have been told that even Santa can rearrange his schedule to allow Christmas Eve gift giving.

Parents can also agree to split Christmas day or even spend Christmas day together. It is always best if the parents can work together. If the court decides Christmas visitation than the individual desires of each parent may be ignored. Thus, why not try and work together.

If you can't agree than it is fine to let the court provide a more generic visitation schedule. That being said it is still important to keep the conflict from adversely impacting the children.

The Jewish and Muslim religious holidays do not follow the same calendar. As a result holidays fall on different dates each year. This can make planning more difficult. Although, since Chanukah lasts eight days it does allow both parents to spend time with the children on Chanukah.

Thank you for reading the Lerner Law Blog this year and have a wonderful holiday. The next five people who e-mail me between now and December 19, 2011 will receive a free gift from the Law Office of Scott Lerner. My email address is Please include your snail mail address if you wish to receive a gift. Good luck and have a happy new year.

Monday, October 31, 2011


Halloween may be scary but some would say it is nothing compared with getting a divorce. Although, getting divorced may seem nightmarish it often does not have to be. A good lawyer may not be able to get you everything you want but should be able to guide you through the system with a minimal amount of surprises.

In a scary movie it is the anticipation of what will happen in the future that scares you. Rarely is the monster as scary as the anticipation. It is a common trick of film makers to hide the identity of the killer until the end of the movie. This helps preserve the suspense.

In the practice of law it is best to try and limit the amount of anticipation and suspense. A lawyer can't necessarily predict what a judge will do. He should be able to explain the options the judge has and explain the factors the court will consider.

Not everyone celebrates Halloween but if your family does than remember that when writing a parenting agreement. Trick or Treating is usually only for a couple of hours and only up to a certain age. Thus, it may not be necessary to address with older children. Parents can also agree to share Halloween and have one parent go trick or treating with the children and the other hand out candy. As with anything written into a parenting agreement it is best to put the needs of the children first.

Friday, September 30, 2011

Criminal Law, Prison and the Youth of a Nation

I remember applying for my first job. Wondering if the fast food restaurant was desperate enough to hire someone with no experience. As nightmarish as that experience was can you image the same experience today, in a recession. College graduates are working at Starbucks and McDonalds. It takes a lot of luck to get a job with no experience. Now lets make the same search damn near impossible. Lets add to the mix you have a felony conviction.

It is so cheap and easy with the internet to look up a potential employee's criminal background. The result is that we have created a huge class of Americans who are almost unemployable. I have received more calls seeking to expunge or seal criminal records in the last year than in my entire career. Most of the time those convictions are not eligible to be expunged or sealed (see 20 ILCS 2630/5.2).

Certainly this is a factor to be considered in pleading to anything. That being said there are cases where it makes sense to enter into a plea. This is particularly true given the risk of substantial prison terms. In addition many defendants are convicted at trial. Thus, this is not a problem that can't be resolved by an individual defendant. This is a problem that must be addressed as a nation.

The problem we have is that politicians don't get voted out of office for being perceived as tough on crime. What we fail to see as a nation is the big picture. The object is to keep criminals from impacting our families and friends. Thus, if a young man or woman in their teens or early twenties gets convicted of a crime they are unlikely to find a job throughout their lives. The result will be to do the one job they know best, even if that job is to engage in criminal behavior.

If they are not proficient at committing crimes we can send them to the best schools in the State of Illinois. The charm schools at Stateville, Dwight, Pontiac and Menard are far more successful at teaching criminal behavior than our high schools are at teaching lawful behavior. Maybe the reason is that we spend more money per student on our prisoners than on our students.

People who have drug convictions often have drug addictions. A drug addict who can't find a job is likely to get frustrated. The stress of their situation may result in the desire to take drugs. Since they have no job or money the best way to get money is to steal from you. If we limit welfare to people with criminal convictions than this process will speed up. To make matters worse politicians are reducing funding for drug treatment.

The cycle becomes worse when we destroy the lives of individuals with real potential. Young, first time offenders are often over charged resulting in felony records. In my county retail theft (a class A Misdemeanor) is often charged as a burglary (a class 2 Felony). The State's Attorney has a great deal of discretion as to how they charge an offense. It certainly can't hurt in an election to have a high felony conviction rate.

The police also have discretion as to whether a case should be charged. There are times when a stern warning or a few moments at the police station can provided the needed incentive to straighten up and fly right. Should this happen in every case? Of course not. That is why we need law enforcement that is not only concerned about putting bad people in jail but also concerned about doing the right thing.

It is also important to remember that times have changed. When I was in High School a fight would often be resolved by teachers forcing the students to shake hands. Today the same fight will often by resolved by the students being convicted of aggravated battery. There was a recent change in Illinois to allow 17 year old defendants to be charged with misdemeanors in the juvenile court but the statute does not stop 17 year old defendants from being charged with a felony. There is also at least some scientific studies supporting the idea that impulse control does not fully develop until a person is in their thirties.

The last three presidents of the United State's have all admitted to some form of drug use or alcohol abuse. If they were arrested at the time of their substance use or abuse it is likely they would never have run for office. The result would be an incredible waste of potential.

There is also a very practical side to this argument. As a nation we simply can't afford to imprison so much of our youth. I am not talking about the yearly costs of housing (which is well in excess of $30,000 per year). I am talking about the cost of the state raising children without fathers. I am talking about the costs of prisoners not paying into the system for taxes and social security. I am talking about the destruction of the American dream for a large portion of the youth of our nation.

Tuesday, August 30, 2011

Screaming at Oranges

There is an old saying that a man marries a woman thinking she will never change and a woman marries a man thinking she can change him. The high divorce rate suggests that the reasons people get married may not always be the right ones. People do change over time. Hopefully, people gain wisdom as time goes on. Yet these changes are not always for the betterment of the marriage. Also, sometimes one person within a couple changes while the other remains the same.

People generally do not change their essential nature. If people are unwilling or unable to change for the sake of a marriage they are almost never willing to change for the sake of a divorce. Thus, trying to change a person's essential nature may be a kin to pounding in a nail with your forehead.

I'm often confused that people are surprised and frustrated by their soon to be ex-spouse continuing to maintain the same annoying personality traits that played a part in their decision to divorce in the first place. It is a little like being mad at an orange for being juicy. Although, it is alright to encourage positive behaviors it is just frustrating to try and change someones essential nature when that is unlikely to ever occur.

Behavior can certainly be changed or modified by Court Order. People often are more willing to do what they should do when the alternative is being held in contempt of court. The possibility of time in jail is an excellent motivator. Thus, some negative behaviors can be modified. A person who is bad with money can be taught to pay child support on time. It is possible to get someone to visitation on time. Any behavior reduced to an order can be changed provided that negative reinforcement works on that indivisual.

Obviously any behaviors that involve violence, are illegal or are harmful to a child are not what I consider part of someones essential nature. Yet, these behaviors also may not be easily changed. The solution to dealing with these behaviors may be restricted visitation or limited contact.

It is best to reserve energy for fighting battles that can be won. Most of the time the frustration involved in changing a person's essential nature is not a battle worth fighting. There is value in peace of mind.

Tuesday, July 12, 2011

Green Lantern

Every summer I look forward to the summer movies. I was certainly looking forward to see the Green Lantern. I was disappointed. The movie was awful. The millions of dollars spent on special effects could not make up for a script that didn't even try.

I understand that Hal Jordan (a/k/a The Green Lantern) saw his father die. I understand he was a screw up who couldn't make a commitment. I understood his potential to be paralyzed by fear. None of these flaws made me care for him.

It is also true that good writing and acting can make a character more empathetic when that character is flawed. Certainly this technique worked for Batman and Iron Man. In Batman Begins Bruce Wayne (Christian Bale) must learn to tame his inner demons. He is filled with anger brought on by his parents death. His emotional pain made the viewer feel for the character. Bruce Wayne is not a poor little rich kid but a flawed hero. A large portion of the movie was dedicated to examining his Psyche. The same can be said for Iron Man. Tony Stark (Robert Downey Jr.) is struggling with his father's legacy and his own self indulgence. At the end of these movies it is as much about defeating the bad guys as coming to grips with the character's need for self actualization.

In the Green Lantern it is unclear what Hal Jordan has learned from his battles. I still wonder how wimpy the Green Lantern Corps must be in that despite their years of service they could not defeat a monster that Hal Jordan could defeat with ease. It is also unclear how Hal's battle with fear and evil caused him to grow as a person?

Form over substance will continue to be a problem in the movies as in life. Would this movie have been made based on the script alone without the promise of impressive Computer Generated Imagery? Since this is a legal blog I should note that sometimes this occurs in the courtroom as well. Lawyers sometimes believe that by force of will the judge or jury will side with them. Yet no matter how convincing an argument it must be based on a solid foundation of facts, evidence and the law.

I have not given up on the summer yet. I hope that the next movie related blog I write will be glowing praise.