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the NC Constitution, sovereign immunity,; and civil rights suits
Topic Started: Mar 7 2010, 11:47 PM (723 Views)
Quasimodo

Consider, first, the maninfold ways in which the law in North Carolina--in fact, the supreme law of North Carolina as embodied in its Constitution (which therefore takes precedence over all other NC statutes and laws)--was violated in the lax case :

NORTH CAROLINA STATE CONSTITUTION

ARTICLE I

DECLARATION OF RIGHTS

(snip)

Sec. 20. General warrants.

General warrants, whereby any officer or other person may be commanded to search suspected places without evidence of the act committed, or to seize any person or persons not named, whose offense is not particularly described and supported by evidence, are dangerous to liberty and shall not be granted.

[Who specified which action each defendant was supposed to have taken, or provided a Bill of Particulars? And what evidence supported the accusations?]

Sec. 21. Inquiry into restraints on liberty.

Every person restrained of his liberty is entitled to a remedy to inquire into the lawfulness thereof, and to remove the restraint if unlawful, and that remedy shall not be denied or delayed. The privilege of the writ of habeas corpus shall not be suspended.

[Were the defendants permitted a Probable Cause hearing, to "inquire into the lawfulness" of their arrests? Were they permitted to present evidence to the Grand Jury in their own behalf?]

(snip)

Sec. 23. Rights of accused.

In all criminal prosecutions, every person charged with crime has the right to be informed of the accusation and to confront the accusers and witnesses with other testimony, and to have counsel for defense, and not be compelled to give self-incriminating evidence, or to pay costs, jail fees, or necessary witness fees of the defense, unless found guilty.

[Who informed the defendants of what they were each specifically accused of, and when, and where (which bathroom, bedroom, or living room)?]


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Quasimodo


Next, consider that the rights in the Constitution are held to be superior to the rights, powers, and duties of the state :

http://www.aoc.state.nc.us/www/public/coa/opinions/2007/070080-1.htm

In Corum, our Supreme Court stated “the very purpose of the Declaration of Rights is to ensure that the violation of these rights is never permitted by anyone who might be invested under the Constitution with the powers of the State.” Corum at 783, 413 S.E.2d at 290.

Given this purpose, a plaintiff must not be barred by the defense of sovereign immunity from asserting a common law claim and also prevented from asserting an alternative Constitutional claim. See Sanders at ___, 644 S.E.2d at 12 (“In sum, sovereign immunity is not available as a defense to a claim brought directly under the state constitution.”).

(“The doctrine of sovereign immunity cannot stand as a barrier to North Carolina citizens who seek to remedy violations of their rights guaranteed by the Declaration of Rights.”).

Moreover, “when there is a clash between these constitutional rights and sovereign immunity, the constitutional rights must prevail.”[/b] Id. at 786, 413 S.E.2d at 292.

----------------

Writing for the Court in Corum v. University of North Carolina, 330 N.C. 761, 413 S.E.2d 276 (1992), Justice Martin again relied on legal history to support the Court's conclusion that the violation of one's state constitutional rights gave rise to a direct cause of action against state agents, which was not barred by the doctrine of sovereign immunity.

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http://www.aoc.state.nc.us/www/public/coa/opinions/2002/020059-1.htm

Sovereign immunity ordinarily grants the state, its counties, and its public officials, in their official capacity, an unqualified and absolute immunity from law suits.

(snip)

Although grounded in tort, a claim for violation of Title VII [civil rights] is not subject to the defense of sovereign immunity. See Bristow v. Drake Street, Inc., 41 F.3d 345 (7th Cir. (Ill.), 1994) (Title VII claim is akin to a tort claim). In , 330 N.C. 761, 413 S.E.2d 276, reh'g denied, 331 N.C. 558, 418 S.E.2d 664, cert. denied, 506 U.S. 985, 121 L. Ed. 2d 431 (1992), our Supreme Court held that sovereign immunity cannot bar liability in federal civil rights actions filed in state courts.
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LTC8K6
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Assistant to The Devil Himself
So how come the search warrants say something like, "Any items which may constitute a crime" as something to be seized?
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