Student expelled, charged with a felony after he forgot his shotgun was in his truck

davidmcbeth said:

overhearing a guy talking on the phone is not wiretapping ... want your conversations to be private? Take steps to make them so.

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TFred said:

I don't think ANY eavesdropping laws circumvent the "expectation of privacy" requirement. I'm hard pressed to believe that any legal panel would ignore the fact that he was in the school office, I presume at some sort of a counter top/service desk area, with ample people in the vicinity. I'm sure they wouldn't have put him in a private room... they probably just grabbed the desk phone and handed it to him.

I still wonder why the SENIOR in high school didn't have a cell phone with him, or at least in his truck?

TFred

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§ 15A‑287. Interception and disclosure of wire, oral, or electronic communications prohibited.
(a) Except as otherwise specifically provided in this Article, a person is guilty of a Class H felony if, without the consent of at least one party to the communication, the person:
(1) Willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication.
(2) Willfully uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when:
a. The device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communications; or
b. The device transmits communications by radio, or interferes with the transmission of such communications.
(3) Willfully discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through violation of this Article; or
(4) Willfully uses, or endeavors to use, the contents of any wire or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication in violation of this Article.

(b) It is not unlawful under this Article for any person to:
(1) Intercept or access an electronic communication made through an electronic communication system that is configured so that the electronic communication is readily accessible to the general public;
(2) Intercept any radio communication which is transmitted:a. For use by the general public, or that relates to ships, aircraft, vehicles, or persons in distress;b. By any governmental, law enforcement, civil defense, private land mobile, or public safety communication system, including police and fire, readily available to the general public;c. By a station operating on any authorized band within the bands allocated to the amateur, citizens band, or general mobile radio services; ord. By any marine or aeronautical communication system; or
(3) Intercept any communication in a manner otherwise allowed by Chapter 119 of the United States Code.

(c) It is not unlawful under this Article for an operator of a switchboard, or an officer, employee, or agent of a provider of electronic communication service, whose facilities are used in the transmission of a wire or electronic communication, to intercept, disclose, or use that communication in the normal course of employment while engaged in any activity that is a necessary incident to the rendition of his or her service or to the protection of the rights or property of the provider of that service, provided that a provider of wire or electronic communication service may not utilize service observing or random monitoring except for mechanical or service quality control checks.

(d) It is not unlawful under this Article for an officer, employee, or agent of the Federal Communications Commission, in the normal course of his employment and in discharge of the monitoring responsibilities exercised by the Commission in the enforcement of Chapter 5 of Title 47 of the United States Code, to intercept a wire or electronic communication, or oral communication transmitted by radio, or to disclose or use the information thereby obtained.

(e) Any person who, as a result of the person's official position or employment, has obtained knowledge of the contents of any wire, oral, or electronic communication lawfully intercepted pursuant to an electronic surveillance order or of the pendency or existence of or implementation of an electronic surveillance order who shall knowingly and willfully disclose such information for the purpose of hindering or thwarting any investigation or prosecution relating to the subject matter of the electronic surveillance order, except as is necessary for the proper and lawful performance of the duties of his position or employment or as shall be required or allowed by law, shall be guilty of a Class G felony.

(f) Any person who shall, knowingly or with gross negligence, divulge the existence of or contents of any electronic surveillance order in a way likely to hinder or thwart any investigation or prosecution relating to the subject matter of the electronic surveillance order or anyone who shall, knowingly or with gross negligence, release the contents of any wire, oral, or electronic communication intercepted under an electronic surveillance order, except as is necessary for the proper and lawful performance of the duties of his position or employment or as is required or allowed by law, shall be guilty of a Class 1 misdemeanor.

(g) Any public officer who shall violate subsection (a) or (d) of this section or who shall knowingly violate subsection (e) of this section shall be removed from any public office he may hold and shall thereafter be ineligible to hold any public office, whether elective or appointed. [FONT=Times New (W1)][FONT=Times New (W1)](1995, c. 407, s. 1.)[/FONT][/FONT]

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TFred said:

They've just updated the Facebook support group for Cole that the school board has decided to stand by its original decision.

Not sure exactly what the details of that were, last I heard, I believe they were going to allow him to graduate from an "alternative school" rather than from his actual school with his classmates.

I wonder if this could be winnable as a Section 1983 Civil Rights lawsuit, for denying him the right to his earned diploma, and the pain and suffering from this ordeal.

TFred

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TFred said:

I don't think ANY eavesdropping laws circumvent the "expectation of privacy" requirement. I'm hard pressed to believe that any legal panel would ignore the fact that he was in the school office, I presume at some sort of a counter top/service desk area, with ample people in the vicinity. I'm sure they wouldn't have put him in a private room... they probably just grabbed the desk phone and handed it to him.

I still wonder why the SENIOR in high school didn't have a cell phone with him, or at least in his truck?

TFred

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SFCRetired said:

Personal opinion: The expulsion and possible prosecution of this young man is nothing more than another attempt to demonize guns and gun owners. If there were any common sense left in our educational system, the principal of the school would have merely said, "Take your shotgun home and then come back to class."

It was evident that he did not knowingly bring a firearm to school just from the fact that he called his mother to come get his truck.

Should be an interesting legal case to follow. Right now, I think that Cole is the only victim in all of this.

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SFCRetired said:

Personal opinion: The expulsion and possible prosecution of this young man is nothing more than another attempt to demonize guns and gun owners. If there were any common sense left in our educational system, the principal of the school would have merely said, "Take your shotgun home and then come back to class."

It was evident that he did not knowingly bring a firearm to school just from the fact that he called his mother to come get his truck.

Should be an interesting legal case to follow. Right now, I think that Cole is the only victim in all of this.

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carolina guy said:

Can you pass a suggestion to the FB group that it looks like the school violated a couple sections of http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_15A/GS_15A-287.html ? I think they can get the initial conversation and then the subsequent search of his vehicle excluded (unless he let them search). But, at minimum, I think an employee or two need to become felons and help with the kids future civil suit against the school district.

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davidmcbeth said:

I don't see a violation ... is this just me? I don't grasp at straws ...

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carolina guy said:

Read the highlighted portions of NCGS...if you hear a conversation that you are not a party to, and you do not have the permission of the parties, and you EITHER know that listening clandestinely is prohibited, and/or you knowingly pass on the contents of the conversation to a 3rd party, you have committed a felony per NC law. I think it is pretty easy to see that written...it covers "aural" interception, not just electronic.

Further, an elected or appointed official that does the same and is found guilty will lose that position and be barred from all future public positions. Without a doubt, the DA should know better...the law is their stock and trade. The school officials should also know better.

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carolina guy said:

From what I read in the law (posted previously), in NC simply "hearing" the conversation in the office would NOT be a crime. However, ACTING upon the overheard conversation is a FELONY.

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(7) "Electronic, mechanical, or other device" means any device or apparatus which can be used to intercept a wire, oral, or electronic communication other than:

a. Any telephone or telegraph instrument, equipment, or facility, or any component thereof:
1. Furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by the subscriber or user for connection to the facilities of such service and used in the ordinary course of its business; or
2. Being used by a provider of wire or electronic communication service in the ordinary course of its business or by an investigative or law enforcement officer in the ordinary course of the officer's duties.
b. A hearing aid or similar device being used to correct subnormal hearing to not better than normal.

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(13) "Intercept" means the aural or other acquisition of the contents of any wire, oral, or electronic communication through the use of any electronic, mechanical, or other device.

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davidmcbeth said:

.....in violation of this Article.

from the bolded section .... looking down further I don't see a violation of the article ...

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knowing or having reason to know

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davidmcbeth said:

.....in violation of this Article.

from the bolded section .... looking down further I don't see a violation of the article ...

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sharkey said:

Um, no.

ETA for clarity;

http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_15A/GS_15A-286.html


(7) "Electronic, mechanical, or other device" means any device or apparatus which can be used to intercept a wire, oral, or electronic communication other than:

a. Any telephone or telegraph instrument, equipment, or facility, or any component thereof:
1. Furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by the subscriber or user for connection to the facilities of such service and used in the ordinary course of its business; or
2. Being used by a provider of wire or electronic communication service in the ordinary course of its business or by an investigative or law enforcement officer in the ordinary course of the officer's duties.
b. A hearing aid or similar device being used to correct subnormal hearing to not better than normal.

Sooooo, if they had a hearing aid that made their hearing better than normal then yes. If they listened in with another phone extension or their ear then no.

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sharkey said:

Ding Ding!

ETA: Don't forget this part,



Now wasn't there something in the law the kid was/may be charged with about knowingly too?

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sharkey said:

Ding Ding!

ETA: Don't forget this part,



Now wasn't there something in the law the kid was/may be charged with about knowingly too?

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carolina guy said:

That is the absolute strongest part of his defense, and I don't think the state can prove it since he took steps to rectify the problem once he discovered it. I hope he sues for malicious prosecution if they continue.

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eye95 said:

I think he wins (or has charges dropped) on account of the word "knowingly." However, I don't think he has a case for malicious prosecution. Whether he knew or not is a question of fact for the jury. I think it is unreasonable to put it to the jury, but I don't think the legal system will see it the same way.


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The right, guaranteed by the Fourteenth Amendment to the U.S. Constitution, to be treated the same, legally, as others in the same situation. If a law discriminates between one group of people and another, the government must have a rational basis for doing so. A law that discriminates on the basis of a supect classification -- that is, it makes a distinction based on race, gender, or another trait that has historically resulted in discriminatory treatment -- is constitutional only if there is a very compelling reason for the distinction.

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