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From the beginning of earth, conflicts and wars have been a part of human life. At present, armed conflicts become very terrible to us. The majority of armed conflicts that have been occurred since the Second World War may be characterized as non-international. Non-international armed conflicts have become the most widespread armed conflicts in the contemporary world. Common Article 3 of the four Geneva Conventions is a milestone to the development of the law of war. This article marked a breakthrough, as it covered, for the first time, situations of non-international armed conflicts. This paper provides a typology of non-international armed conflicts governed by Common Article 3 of the 1949 Geneva Conventions, and examines the application, as well as the enforceability and binding force to contemporary forms of non-international armed conflict. Finally, this study tries to explore and depict the ambit of Common Article 3. The relevant cases have, therefore, been discussed and analyzed.
Keywords: Non-international armed conflict (NIAC); Common Article 3 (CA3); Additional Protocol II (AP2); Minimum protections; Customary law.
One thing that the human kind was doing from the beginning of time is fighting with each other. Many times the fighting got out of hand and consumed the innocent people. Fight against own people has always been considered one of the worst. Most armed conflicts today are non-international in nature. They take place within the borders of states, and are waged between a state and organized non-state armed groups or among such groups themselves. International Humanitarian Law (hereinafter IHL) is a branch of Public International Law which is intended to alleviate human pain and suffering resulting from armed conflicts deals with humanitarian problems which arise directly or indirectly from international or non-international armed conflicts (hereinafter NIAC). Humanitarian law, as a distinct body of law aiming at the protection of the individual in times of war, finds written expression in the four Geneva Conventions and Additional Protocol I, the law concerning NIAC is specifically found in Common Article 3 (hereinafter CA3) of the four Geneva Conventions and Additional Protocol II (hereinafter APII). IHL is a body of law that provides essential protection for those directly affected by an armed conflict, if it is respected by the parties to that conflict. Prior to the formulation of the four Geneva Conventions of 1949, there existed no substantive provision of IHL specific to situations of NIAC. CA3 to the four Geneva Conventions of 1949 was the first provision of its kind to deal specifically with humanitarian protection in situations of NIACs. CA3 to all four Geneva Conventions makes a new era in the unceasing development of the idea on which the Red Cross is based, and in the embodiment of that idea in international obligations. Before the 1990s the law of NIAC was poorly developed. In the 1990s, under the impulsion of the growing amount of human rights law and the practice of international organs as the Security Council and the International Criminal Tribunal for the former Yugoslavia (hereinafter ICTY), the law of NIAC quickly developed, on a case-by-case basis. It now tends to largely merge into the law of international armed conflicts (Hereinafter IAC). CA3, widely considered to reflect customary international law, governs NIAC between a state and armed groups, as well as those conflicts between armed groups.
In this paper the legal and academic dispute and a matter of arguments and discussions that typology of NIAC governed by CA3 of the 1949 Geneva Conventions. In dealing with these issues, both primary and secondary sources have been taken into account. As primary sources relevant International Instruments, case-laws have been taken. Additionally secondary sources including books, journals, articles, online resources, statements, presented papers, documents of relevant international and non-governmental organizations and other materials have been taken into account for proper analysis, comprehensive understanding and consistent conclusion. Accordingly the research is Analytical method and doctrinal in nature as no field work or empirical research has been undertaken.
Armed conflict means open armed conflict between two or more parties, nations, or states. As a rule, the applicability of the law of armed conflict (hereinafter LOAC) is dependent on the existence of an armed conflict. &  IHL recognizes two different categories of armed conflict. The reference point for distinguishing between the two is the state border: wars between two or more States are considered to be IAC, and warlike clashes occurring on the territory of a single state are non-international or internal armed conflicts (usually known as civil wars). In a NIAC the existing government is fighting against a faction within its own territory or different factions are fighting against each other without the involvement of governmental power. NIACs are armed confrontations occurring within the territory of a single state and in which the armed forces of no other state are engaged against the central government. Internal disturbances and tensions (such as riots, isolated and sporadic acts of violence, or other acts of a similar nature) do not amount to a NIAC.
According to H. P. Gasser, it is generally admitted that "non-international armed conflicts are armed confrontations that take place within the territory of a state between the governments on the one hand and armed insurgent groups on the other hand. […] Another case is the crumbling of all government authority in the country, as a result of which various groups fight each other in the struggle for power"
NIAC are covered by CA3, APII, several other treaties, as well as by customary law. Two main legal sources must be examined in order to determine what a NIAC under IHL is: CA3 to the Geneva Conventions of 1949 and Article 1 of APII. CA3 does not define NIAC it refers to "armed conflicts not of an international character occurring in the territory of one of the High Contracting Parties" as having the same meaning as ‘civil war.’ It implies that even some armed conflicts which are not restricted to inter-state hostilities can be deemed as international armed conflicts if they contain an international element. In order to distinguish an armed conflict, in the meaning of CA3, from less serious forms of violence, such as internal disturbances and tensions, riots or acts of banditry, the situation must reach a certain threshold of confrontation. It has been generally accepted that the lower threshold found in Article 1(2) of APII, which excludes internal disturbances and tensions from the definition of NIAC, also applies to CA3. Two criteria are usually used in this regard: First, the hostilities must reach a minimum level of intensity. This may be the case, for example, when the hostilities are of a collective character or when the government is obliged to use military force against the insurgents, instead of mere police forces. Second, non-governmental groups involved in the conflict must be considered as "parties to the conflict", meaning that they possess organized armed forces. Article 1(2) of APII identifies situations of violence that do not meet the ‘armed conflict’ threshold and includes in that category ‘internal disturbances and tensions, such as riots, isolated and sporadic acts of violence, and other acts of a similar nature’. As elaborated in the Commentary to Article 1(2), even if the government is forced to deploy armed units, to the extent that the purpose is to restore law and order, such violence is considered not to constitute armed conflict in the legal sense. This threshold also applies to CA3. The ICTY has deemed there to be a NIAC in the sense of CA3 ‘whenever there is …protracted armed violence between governmental authorities and organized armed groups or between such groups within a state’. The ICTY thus confirmed that the definition of NIAC in the sense of CA3 encompasses situations where "several factions [confront] each other without involvement of the government's armed forces" Though there are no specific definitions on NIAC but above discussion we can make distinction between the two types’ armed conflict between IAC and NIAC.
d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.
Under the legal regime contemporary to the formulation of CA3, the application of IHL to a situation of NIAC depended upon it being fundamentally akin to an international armed conflict. In order to apply CA3, one should ask if a certain intensity of violence has been reached within the conflict. According to the Inter-American Commission on Human Rights, the threshold is reached in armed confrontation of low intensity and does not require large-scale and general hostilities to exist. CA3 simply established a few basic rules of humane treatment, and set forth certain minimal judicial guarantees. Article 3 protected those classes of people deems most vulnerable when conflict occurs. Despite the undisputed significance of CA3, as an improvement of the traditional international law approach to internal conflicts, it barely employs the most basic principles preserved in the Conventions into NIAC. In theory, CA3 should be applied automatically and without discretion. CA3 applies in the case of a classic civil war when the state’s armed forces are confronted with armed opposition groups within the state’s territory. Moreover, this provision is applicable when two dissident groups fight against each other within the territory of one state which may, or may not, be a party to the armed conflict. It also applies to a situation where the conflict is within the state, between the Government and the rebel forces or between the rebel forces themselves. The International Court of Justice (hereinafter ICJ) held that this provision is a minimum yardstick, which also applies in IAC besides the more elaborate rules governing these conflicts, and is to be considered as part of the elemental considerations of mankind. Some authors even conclude that CA3 is part of jus cogens. However, CA3 is applicable to the situation of NIAC in a limited way as circumscribed in the provision itself. CA3 was first applied in Guatemala in 1954. Since then it has been explicitly accepted and applied in a number of situations including Lebanon (1958), Cuba (1959), Vietnam (1964), and Chile (1973). Several judicial developments also point to the applicability of CA3 extraterritorially. The International Criminal Tribunal for Rwanda (hereinafter ICTR) Statute, for example, includes jurisdiction over crimes committed across the Rwandan border in neighboring countries.
APII of 1977 supplements and develops CA3 of the Geneva Conventions of 1949, dealing with NIAC. Before the adoption of APII, CA3 was the only source of law that applies explicitly to NIAC. It provided basic rules on methods of warfare applicable by both states and Non-state Actors involved in NIAC. According to Christopher Greenwood, ‘APII goes a long way to putting flesh on the bare bones of CA3 of the 1949 Geneva Conventions. In particular, APII contains the first attempt to regulate by treaty the methods and means of warfare in internal conflicts.’ As a reflection of the historical bias in IHL towards the regulation of inter-state warfare, the 1949 Geneva Conventions and the 1977 Protocols contain close to 600 articles, of which only Article 3 common to the 1949 Geneva Conventions and the 28 articles of AP II apply to internal conflicts. Therefore, unlike CA3 of the Geneva Conventions, APII will not apply to conflicts between two warring dissident groups. It will also only apply in conflicts that in fact approximate to traditional conceptions of inter-state warfare, namely where an organized dissident armed force exercises military control over a part of the territory of a state Party. Like CA3, APII provides for the humane and non-discriminatory treatment of all those who are not, or who are no longer, taking a direct part in hostilities. The relationship between the two conventional instruments is, thus, of great importance when considering which one prevails? Pursuant to the general rules of international law and notably the lex posterior and lex specialis APII should contain the universal rules applicable to conflicts of non-international nature. In the case where states are parties to both treaties and unless otherwise provided for in a treaty, the earlier instrument applies only to the extent its provisions are compatible with the later treaty (in conformity with the latin maxim lex posterior derogat legi priori). Since APII, regulates the scope of application of both instruments, both treaties are simultaneously applicable and, therefore, two thresholds of applicability of norms relating to NIAC exist. APII clearly indicates that it develops and supplements CA3 so that means CA3 and APII exist autonomously. That APII and CA3 should have the same scope of application was the original intention of the ICRC. Treaty law as envisaged in the Geneva Conventions and the APII knows of two types of NIAC, granting individuals different kinds of protection from the ghastly effects of armed conflicts.
During armed conflict, civilians often pay a heavy price. They may face daily threats of violence and death as they find themselves inadvertently caught up in the middle of a conflict. CA3 to the four Geneva Conventions of 1949 establishes the minimum standards that all parties involved in a NIAC should observe concerning the treatment and protection of civilians, those no longer actively participating in the hostilities, and civilian objects. CA3 protects civilians through the explicit prohibition of violence to life and person (in particular murder, mutilation, cruel treatment or torture) taking of hostages, outrages upon personal dignity (in particular humiliating or degrading treatment) and the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable. These acts are prohibited at any time and in any place whatsoever. CA3 to the four Geneva Conventions of 1949 establishes minimum standards that parties, including State and non-State actors shall respect in NIAC. The civilian population as such, as well as individual civilians, shall not be the object of attack. An attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated is prohibited.And also civilians shall enjoy general protection against the dangers arising from military operations”. In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects” and that all feasible precautions must be taken with the “view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects.” And also APII: Article 14 ensures the protection of objects indispensable to the survival of the civilian population. Particularly APII is more specific than CA3 for the protection of civilian population in the situation of NIAC.
The US government also has expressly recognized these principles as declaratory of existing customary international law." ICTR has likewise affirmed the customary law nature of CA3. In 1967 the parties to the conflict in Yemen brought about an agreement to respect the provisions of the Geneva Conventions and in 1988 the FMLN movement in El Salvador agreed to adhere to the provisions of CA3 and APII. And also the ICRC’s Customary Law Study also confirmed that the substantive provisions of CA3 are binding as customary law. So, there is no doubt that the substantive provisions of CA3 apply as a matter of customary law to all parties to an armed conflict, regardless of its formal classification or geographical reach. In that case, CA3 would apply as customary law.
Most important problem is that, implementation of CA3 in NIAC. IHL does not contain real implementation mechanisms for situations of NIAC. States, by becoming parties to the 1949 Geneva Conventions, have undertaken ‘to respect and to ensure respect’ for the main conventions on the laws of war. There is no supervisory body to oversee the implementation of CA3. Neither CA3 nor APII contains provisions governing their enforcement. Moreover, the nature of the CA3 is that it is only a general principle and it can be applied by the state party with a margin of appreciation as reflected in their legislations. For the implementation of CA3 broadly, the amendment to US War Crimes Act of 1996 extends the jurisdiction of national courts to violations of article 3 common to Geneva Conventions. However, the courts did not consider violation of CA3 as a grave breach. Certain courts consider the violation of CA3 as crime against humanity without precisely delimiting the concept. The confusion of this kind has not been confounded despite there are efforts to create ad hoc international criminal tribunals, such as ICTY, ICTR and ICC, which provides for detailed provisions on the jurisdiction, applicable law and the pre-trial procedure. The main shortcoming of this tribunal is that they are lacking an effective mechanism to enforce arrest warrants and to execute judgments  and also it may look even weaker if it reaches a decision which is then not fully implemented; in some cases it could be very difficult to secure implementation of the court's decisions. The great problem is states tend to show an unwillingness to acknowledge a situation as an internal armed conflict within the meaning of CA3 and/or APII so it becomes difficult to implement of CA3 in a state. While the final clause of CA3 states that its application ‘shall not affect the legal status of the Parties to the conflict’, state authorities engaged with NIAC have a tendency not to recognize its applicability.
There are many criticisms to be made of CA3. As Wilson points out 'article 3 does not prevent the established government from punishing the rebels under municipal law, nor does it change their status in law.' One of the biggest failings of CA3 is the uncertainty surrounding its application. Because this application of the provision is automatic, no 'recognition' is necessary and therefore, 'target conflicts' are not easily identifiable. CA3 does not provide for a competent authority that can decide if a particular conflict constitutes a 'CA3 conflict'. Also quite controversial regarding CA3 is the lack of special provisions for guerrilla warfare. The problem with this article is that it is applicable only to a situation, which is an ‘armed conflict’. However, the term “armed conflict” has not been defined in the Convention and also with the term of 'armed conflict not of an international character' not being defined. There is much uncertainty concerning the threshold of violence necessary before a conflict can be regarded as being a NIAC under the Geneva Convention for the purposes of CA3. CA3 also fails to define elaborate rules of distinction between military and civilian targets and makes no mention of the principle of proportionality in target selection. Although the substance of CA3 defines principles of the Conventions and stipulates certain imperative rules, the article does not contain specific provisions. In Hamdan v. Rumsfeld, the Court erroneously applied CA3, which applies to conflicts not international in scope; more specifically, CA3 is intended to be used in cases of civil war, rebellion, and the like, not in conflicts against an international terrorist group. The procedures for enforcing CA3 are not specified within the article itself. While some parties may apply prisoner of war laws in internal conflicts, under both APII and CA3 these privileges do not cover captured combatants in a civil war.
The world has witnessed many human rights violations which have also constituted violations of IHL throughout the twentieth century. The fundamental principle of the Geneva Conventions, which is the protection of the individual in times of armed conflict, is gradually asserting itself without acknowledging artificial legal distinctions as to the nature of those conflicts. Most victims in NIAC are civilians which do not take part to the hostilities. Undoubtedly CA3 applied as a treaty law matter only to internal armed conflicts. CA3 is revolutionary because it purported to regulate as a matter of IHL wholly internal matters. CA3 establishes fundamental rules from which no derogation is permitted. This paper has argued that CA3 may today be given a different geographical reading as a matter of treaty law and that it applies to all situations of violence that can be classified as NIAC, based on the quality of the parties involved. The violence need not be confined within the borders of single state can be reached through a different line of reasoning. They include traditional civil wars, internal armed conflicts that spill over into other states or internal conflicts in which third states or a multinational force intervenes alongside the government. And also NIAC that spills outside territorial boundaries, and a conflict that is fought on territorial waters but which extends to the high sea, would both remain covered by the CA3, even that part of the fighting that takes place outside state territory? It should be specific. This study also observes that the main problem with the implementation of CA3 is in the recognition of situations as constituting armed conflict. Traditionally it was very difficult to enforce the law of NIAC. Moreover language of the provision limiting its application to the “territory of one of the High Contracting Parties” It should be widen enough and provision should be more specific. The above analysis shows the the problems surrounding the implementation and enforcement of IHL in NIAC and not easily dealt with under the current regulations so uniform regulation applicable to all armed conflicts could be produced. In the meantime, customary international law can help to partially bridge the existing gaps in protection, as well as a strong encouragement of parties in NIAC to apply the rules regulating IAC to their conflict. In the end the international community, including the Human Rights Council, should remain engaged in closely following the situation with a view to ensuring that perpetrators of gross violations of human rights law or serious violations of international humanitarian law are held accountable.
 Homer, The Iliad, Book IX.
 Michelle Mack, Increasing Respect for International Humanitarian Law in Non-International Armed Conflicts (ICRC, Geneva 2008) Pp. 5.
 F. Kalshoven, Constraints on the Waging of War (ICRC, Geneva, 1987) pp. 1.
 The first collective government effort to codify the rules began with a diplomatic conference convened at Geneva in 1864, which set up the Red Cross Organisation with the aim of providing for amelioration of the fate of members of the armed forces wounded on the battlefields. That conference adopted 1864 Convention on the subject. Three names, will always remain linked with this humanitarian work and the genesis of the Red Cross Organization viz., those of the English Nurse Florence Nightingale, the Swiss Writer J. H. Duant and his countryman Gustava Mornier, President of the Soci'et'e d' Utilite' Publique of Geneva, which convoked an international congress in that town in 1863. Sec. J. H. W. Verzijl, International Law in Historical Perspective (Vol.ix), Pp.125. Cited from B. C. Nirmal, ‘International Humanitarian Law: Its Nature and Scope’ (2002) 31 Ban. L. J. 66-86.
 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3362, 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; and Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 287. The international armed conflicts to which these treaties apply include armed conflicts between states and the belligerent occupation of one state’s territory by another.
 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 3 [hereinafter API]. API applies to conflicts between states, the belligerent occupation of one state’s territory by another, and self-determination conflicts of national liberation.
 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609 [hereinafter APII]. The non-international armed conflicts that Common Article 3 addresses include a state engaging in armed violence against organized non-state armed groups, or organized non-state armed groups fighting each other.
 Anthony Cullen, The Concept of Non-International Armed Conflict in International Humanitarian Law (eds), (Cambridge University Press; 1st edition 2010). Pp. 25.
 ICTY, Prosecutor v. Tadic, IT-94-1-AR72 (2 October 1995) paras -; Proscutor v. Galic (Judgement) IT-98-29-A (30 November 2006) paras -; prosecutor v. Furundzija, IT-95-17/1-T (10 December 1998); and Prosecutor v. Krstic, IT-98-33-T (2 August 2001). Cited from Robert Kolb and Richard Hyde, ‘An Introduction to the International Law of Armed Conflict’, (2010/2008) USA, Rep. Oxford-Portland Oregion, Pp. 258.
 Jean Pictet, Commentary to Geneva Convention III Relevant to the Treatment of Prisoners of War (eds), (2006) pp. 23.
 Dieter Fleck , The Hand Book of International Humantarian Law (eds), (2d ed. 2010) pp. 618.
 Louise Arimatsu and Mohbuba Choudhury, The Legal Classification of the Armed Conflicts in Syria, Yemen and Libya, (International Law, PP. 2014/01) Chatham House, London, pp. 3<www. Chathamhouse.org> accessed on 4 April 2015.
 1949 Geneva Conventions and the 1977 Additional Protocols thereto, distinguish between international and non-international armed conflicts by specifically prescribing which rules apply in which type of armed conflict. However, neither the Geneva Conventions nor Protocol I contain a real definition of the expression ‘armed conflict’. The Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (API), includes an article on ‘Definitions’ (Article 2), as well as one on ‘Terminology’ (Article 8), but the term ‘armed conflict’ is not defined therein. An important definition of an armed conflict comes from the ICTY judgment in Prosecutor v. Dusko Tadic´, Case No. IT-94-1-A, 2 October 1995, para 67, the tribunal held that ‘for there to be a violation of IHL, there must be armed conflict.
 Dietrich Schindler, ‘The Different Types of Armed Conflicts According to the Geneva Conventions and Protocols’ (1979) RCDAI, Vol. 163 II, pp. 117-163.
 Sandoz Yves, Swinarski Christophe and Zimmermann Bruno, Commentary on the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of NIAC (APII) (Martinus Nijhoff Publishers, Geneva, 1987).
 International Institute of Humanitarian Law, The Manual on the Law of Non-International Armed Conflict, International Institute of Humanitarian Law (San Remo, 2006) pp. 2,<http:// www.michaelschmitt.org/images/Manual%5B1%5D.Final.Brill..pdf>Accessed on 4 April 2015.
 H.P. Gasser, International Humanitarian Law: an Introduction, in: Humanity for All: the International Red Cross and Red Crescent Movement, H. Haug (eds.), (Paul Haupt Publishers, Berne, 1993) pp. 555.
 Such as the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict; the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, and its Protocols.
 Final Record, Report drawn up by the Joint Committee and presented to the Plenary Assembly, Vol. II-B, pp. 129. Cited from, cf Cullen (n10).
 H. Meyrowitz, ‘The Law of War in the Vietnamese Conflict, in R. A. Falk’ (eds), The Vietnam War and International Law. Vol. 2. (Princeton, 1969) pp. 533.
 For a detailed analysis of this criteria, see ICTY, The Prosecutor v. Fatmir Limaj, IT-03- 66-T, 30 November 2005, para. 135-170.
 Further insight is provided in the Commentary to Article 1 of APII, which adds ‘riots, such as demonstrations without a concerted plan from the outset; isolated and sporadic acts of violence, as opposed to military operations carried out by armed forces or armed groups; other acts of a similar nature, including, in particular, large scale arrests of people for their activities or opinions.’ Cited from, cf Arimatsu and Choudhury (n 17) 14.
 Commentary to Article 1of APII. Id.
 ICTY, The Prosecutor v. Dusko Tadic, IT-94-1-A, 2 October 1995, para. 70.
 Y. Sandoz/C. Swinarski and B. Zimmermann, ‘Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949’ (eds), (ICRC, Geneva, 1987) para. 4461.
 Jean Pictet, ‘Commentary on the Geneva Conventions of 12 August 1949’ (eds), Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Volume I, (ICRC 1952) Pp. 32. ; Junod, ‘Additional Protocol II: History and Scope’ (1983) 33 AM. U.L. REV. 29, 30.
 Heather A Wilson, International Law and the Use of Force by National Liberation Movements, (Oxford, 1988) pp. 43.
 Jon Romer, Killing in a Gray Area between Humanitarian Law and Human Rights: How Can the National Police of Colombia overcome the Uncertainty of which Branch of International Law to Apply? (2010) Springer, pp.8.
 IACiHR, Abella v. Argentina, Case No. 11.137, Report No. 55/97. 18.11.1997 para 152; ICTY, Tadic Case, Case No. IT-94-1, Decision o2. 10. 1995, para 70. Cited from Ibid.
 Oren Gross and Fionnuale Ni Aolain, Law in Time of Crisis: Emergency Powers in Theory and Practice (2006) pp. 356.
 Higgins Noelle, ‘The application of international humanitarian law to wars of national liberation’ (2004) Journal of Humanitarian Assistance, Pp. 28<www. jha.ac/articles/a132.pdf>Accessed on 4 April 2015.
 Fleck, The Handbook of Humanitarian Armed Conflicts, (1995), pp. 221.
 Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, 27 June 1986, I.C.J. Rep. 1986, § 218.
 C. Zorgbibe, ‘Pour une affirmation du droit humanitaire dans les conflits armés internes’ (1970) JDI, 676.
 M. Veutheyv, ‘Implementation and Enforcement of Humanitarian Law and Human Rights in Non-International Armed Conflicts: The Role of the International Committee of the Red Cross’ (1983) 33 Am U L R 83, at 87.
 D. Forsythe, ‘Legal Management of Internal War: The 1977 Protocol on Non-International Armed Conflicts’ (1978) 72 Am J Int'l L 272, at 275.
 Prosecutor v. Hadžihasanović, Case No. IT-01-47-T, Para, 93, 179 (ICTY, Mar. 15, 2006). See also Statute of the ICTR art. 6(3), S.C. Res. 955, Annex, U.N. Doc. S/RES/955 (Nov. 8, 1994); Statute of the Special Court for Sierra Leone (SCSL) art. 6(3), annexed to Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a SCSL, Jan. 16, 2002, 2178 U.N.T.S. 138; Prosecutor v. Limaj, Case No. IT-03-66-T, Para, 87 (ICTY, Nov. 30, 2005); Dino Kritsiotis, ‘The Tremors of Tadić’ (2010) 43 Israel Law Review, 262, 288; Theodor Meron, ‘The Humanization of Humanitarian Law’ (2000) 94 American Journal of International Law 239, 260–61; Anthony Cullen, ‘The Definition of Non-International Armed Conflict in the Rome Statute of the International Criminal Court: An Analysis of the Threshold of Application Contained in Article 8(2)(f)’ (2007) 12 Journal of Conflict and Security, 419.
 Article 1(1) state that the Protocol ‘develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions of application’.
 Dayana Jadarian, International Humanitarian Law´s Applicability to Armed Non-State Actors (Graduate Paper, Faculty of Law, University of Stockholm, 2007), Pp. 39.
 Greenwood, ‘Critique of the Additional Protocols’, p. 14. Cited from, Ibid.
Security Law, Vol. 5, No. 63, at section 5.
 James G. Stewart, ‘Towards a single definition of armed conflict in international humanitarian law: A critique of internationalized armed conflict’ (June 2003) IRRC, Vol. 85 No 850, pp. 319.
 The full sentence is ‘lex posterior derogat legi priori’ and means that the newer norm is preferred over the elder one.
 The full sentence is ‘lex specialis derogat legi generali’ and means that ‘whenever two or more norms deal with the same subject matter, priority should be given to the norm that is more specific.’ United Nations General Assembly (International Law Commission) 2006, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, UN Doc A/CN.4/L.702, 18 July 2006, para. 14.2(5).
 Applicability Test of Additional Protocol. II and Common Article 3 for Crimes in Internal Armed Conflict. Noëlle Quénivet, pp. 36< file:///C:/Users/User/Downloads/9789462650077-c2% 20(6).pdf>Accessed on 4 April 2015.
 Vienna Convention on the Law of Treaties 1969, 1155 UNTS 331, 23 May 1969, Article 30(3).
 Abi-Saab R, ‘Humanitarian law and internal conflicts: the evolution of legal concern, in: Delissen AJM, Tanja GT’ (eds), Humanitarian law of armed conflict: Challenges ahead (Martinus Nijhoff, Dordrecht, 1991) pp. 209–223.
the Protection of Civilian Persons in Time of War, pp.35.
 Report on the Protection of Civilians in the Armed Conflict in Iraq: 5 June to 5 July 2014, United Nations Assistance Mission for Iraq (UNAMI), pp. 5; CA3 of the Geneva Conventions of 12 August 1949.
 Jean-Marie Henckaerts and Louise, ‘Customary International Humanitarian Law’ (eds), Volume 1, (CU P/ICRC, Cambridge 2005).
 Rules 15 to 21, ICRC Study on Customary International Human Rights Law.
 The International Committee of the Red Cross (ICRC) has stated that the provisions of article 3 now possess the character of jus cogens, a peremptory norm of international law, and thus are binding on all authorities claiming to exist in international law. Speech by Jacques Moreillon, Director for General Affairs and Directorate Member, ICRC, Inter-American Seminar on State Security, Human Rights and Humanitarian Law, San Jose, Costa Rica (Sept. 1982); see also Military and Paramilitary Activities In and Against Nicaragua (Nicar. v. U.S.) 1986 ICJ. 14, Para. 220 (indicating that CA3 reflects general principles of humanitarian law or customary international law).
 Junod, ‘Additional Protocol II: History and Scope’ (1983) 33 AM. U.L. REV, pp. 29, 30.
 G.A. Res. 2444, 23 U.N. GAOR Supp. (No. 18) at 164, U.N. Doc. A/7433 (1968).
 ICJ, Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), 27 June 1986, para. 218.
 Rovine, ‘Contemporary Practice of the United States Relating to International Law’ (1973) 67 Am, J. INT'L L. 118, pp. 122-25.
 ICTR, Prosecutor v. Akayesu, Case No. ICTR-96-4-T, September 2, 1998, paras. 608–609.
 Prosecutor v. Duško Tadić , Case No. IT-94-1-AR72, 2 October 1995, para. 124.
 Adma Roberts, The Law of War: Problems of Implementation in Contemporary Conflict, pp.11http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1358&context... on 5 April 2015.
 W.Michael Reisman and James Silk, ‘Which Law Applies to the Afghan Conflict?’ (1988), American Journal of International Law, vol.82, pp.463-464.
 Geza Herczegh, Development of International Humanitarian Law (1984) pp.64.
 This act prohibits certain violations of CA3 of the 1949 Geneva Conventions, which sets out minimum standards for the treatment of detainees in armed conflicts of a non-international character. In the 2006 case of Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006), the Supreme Court rejected the Bush Administration’s long-standing position that CA3 was inapplicable to the present armed conflict with Al Qaeda. As a result, questions have arisen regarding the scope of the War Crimes Act as it relates to violations of CA3 and the possibility that U.S. personnel may be prosecuted for the pre-Hamdan treatment of Al Qaeda detainees.
 A detailed analysis of the legislation and case laws covering CA3; Thomas Graditzky, ‘Individual Criminal Responsibility for Violations of International Humanitarian Law Committed in Non-International Armed Conflicts’ (1998) No 322, International Review of the Red Cross, pp. 29-56.
 Antonnio Cassese, ‘On the Current Trend Towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law’ (1998) European Journal of International Law, vol.9, pp.17.
 According to the ICRC Commentary on the first Geneva Convention, this clause ‘makes it absolutely clear that the object of the Convention is a purely humanitarian one, that it is in no way concerned with the internal affairs of States, and that it merely ensures respect for the few essential rules of humanity which all civilized nations consider as valid everywhere and under all circumstances and as being above and outside war itself’. Pictet (ed.), Commentary I, p. 60.
 Suter Keith, An International Law of Guerrilla Warfare: The Global Politics of Law-Making, (Frances Pinter Publishers, London, 1984).
 API, Articles 51(5)(b), 57(2) (iii) and 85(3).
 J. Pictet, Commentaries on the Geneva Conventions of 12 August 1949, Vol. III: Geneva Convention relative to the Treatment of Prisoners of War (eds), (ICRC, Geneva, 1960) pp. 31.
 Matthew Sonn, Hamdan v. Rumsfeld: A Bad Decision with the Best Intentions - Why the Court Was Wrong in Interpreting the Geneva Conventions and What Should Be Done, (2007) 19 Pace Int'l L. Rev. 143.
 C Lysaght, ‘The Scope of Protocol II and its Relation to Common Article 3 of the Geneva Conventions of 1949 and Other Human Rights Instruments’ (1983) 33 Am UL R 9, 12.
 George Mousourakis, Applying Humanitarian Law to Non-international Armed Conflicts, Pp. 314<http://dadun.unav.edu/bitstream/10171/21626/1/ADI_XIV_1998_06.pdf>accessed on 5 April 2015.

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Mr. John F. Newhard, Jr.
The staff of the Freedom of Information Advisory Council is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your letter of December 10, 2002.
You have asked whether the Virginia Freedom of Information Act (FOIA) would allow a school board to discuss whether a teacher's grievance is grievable in closed session, when the subject of the grievance does not involve issues such as employee performance, discipline, or resignation.
In answering your question, it is first necessary to summarize the grievance procedure to provide proper context for the FOIA question. Article 3 (§ 22.1-306 et seq.) of Chapter 15 of Title 22.1 of the Code of Virginia sets forth the procedures for grievances initiated by teachers. After an informal attempt to resolve the grievance with the teacher's most immediate, appropriate supervisor, the teacher must put the grievance in writing and specify the relief sought through the use of the grievance procedure. Section 22.1-306 defines a "grievance" as a complaint or dispute by a teacher relating to his or her employment. The definition of a grievance also states that the school board has the exclusive right to manage the affairs and operations of the school division. As such, complaints about the methods, means and personnel by which the school division's operations are carried out do not fall under the definition of a grievance.
Section 22.1-314 allows either the school division administrator or grievant to ask the school board to determine whether a particular matter is grievable (i.e., falls under the definition of a grievance). Such a request would occur after the teacher has filed a written grievance, but prior to a hearing on the merits of the written grievance. The school board must receive arguments on the issue of grievability from the teacher and the administration, but has the discretion to choose whether these arguments will be written or oral. The statute is silent as to whether oral arguments before the school board must be open or closed to the public. Decisions of the school board on the issue of grievability may be appealed to the appropriate circuit court. Upon receipt of the record of the school board's decision, the court, sitting without a jury, must hear the appeal on the record transmitted by the school board and in its discretion may receive additional evidence.
Once an issue has been declared grievable, or if no question of grievability has been raised, the grievant may elect to have the grievance heard before a fact-finding panel or the school board. Section 22.1-312 sets forth the procedures for a hearing before a fact-finding panel, and subsection C of § 22.1-312 states that at the request of the teacher, the hearing shall be private. Section 22.1-311 states that a hearing before the school board shall be private unless the teacher requests a public one.
Turning to the relevant provisions of FOIA, the policy provision at subsection B of § 2.2-3700 states that [u]nless a public body or its officers or employees specifically elect to exercise an exemption provided by this chapter or any other statute, every meeting shall be open to the public and all public records shall be available for inspection and copying upon request. Furthermore, this subsection states that the provisions of FOIA must be liberally construed and any exemptions must be narrowly construed. The personnel records exemption at subdivision A 4 of § 2.2-3705 exempts [p]ersonnel records containing information concerning identifiable individuals. The relevant portion of the corresponding meetings exemption found at subdivision A 1 of § 2.2-3711 exempts the discussion of assignment, appointment, promotion, performance, demotion, salaries, disciplining or resignation of specific public officers, appointees or employees of any public body.
Addressing your question specifically, you ask whether FOIA would allow a school board to convene in closed session to discuss whether an issue is grievable in accordance with § 22.1-314, even though the subject of the grievance does not involve issues such as employee performance, discipline, or resignation. You present an example of a teacher seeking to grieve class scheduling and bus routes. You indicate that the teacher complained that students were arriving late to his class due to city construction on the bus route. He asserted that the city should reschedule the construction, buses should be rescheduled, or class schedules should be changed so that students would no longer arrive late to his class. The school administration said that this issue was not the proper subject for a grievance because it deals with management and operation of the school, which by definition is not grievable. Because this matter does not specifically involve "performance," "demotion," or "discipline" issues, you ask whether arguments of grievability and ensuing discussions by the school board pursuant to § 22.1-314 could be closed.
The Office of the Attorney General of Virginia had the opportunity to address a related issue of access to a copy of a fact-finding panel's written award in a grievance hearing.1 The Attorney General stated that if a document were introduced at a grievance hearing, it would not automatically become a personnel record for purposes of FOIA. The content of the document would still need to be examined to determine if it were, indeed, a personnel record. If a record did fall under the personnel exemption, it would be exempt from mandatory public disclosure but nothing in FOIA would prohibit the dissemination of the record.
The Attorney General went on to address whether disclosure of the fact-finding panel's written award would be prohibited by either the provision requiring a grievance hearing before the school board to be private unless the teacher requests a public hearing, or by the provision requiring a hearing before a fact-finding panel to be private if requested by the teacher. Although the Attorney General opined that records did not automatically become personnel records by virtue of being introduced at a grievance hearing, he found that the written award, as well as the other documents and exhibits that made up the record of the hearing, should not be disclosed to the public unless those records had some existence independent of the grievance hearing. In reaching this conclusion the Attorney General followed a principle of statutory construction that statutes be read in pari materia in order to give full force and effect to each provision, and to promote the legislative purpose.2 In pari materia literally means "on the same subject; relating to the same matter."3 As such, statutes relating to the same matter must be construed together so that an inconsistency in one statute may be resolved by looking at another statute on the same subject. The Attorney General found that the General Assembly had manifestly established a teacher's right to a private hearing in a grievance situation, and that FOIA did not override this express right. Therefore, absent clear legislation to the contrary, a school board could not publicly disclose its findings of fact in a privately held grievance.
The rule of statutory construction that statutes be read in pari materia is also relevant in answering the question that you present. In order to file a grievance, the teacher would have to reduce the grievance to writing. This office has previously held that the personnel exemption for records at subdivision A 4 of § 2.2-3705 applies to any record held by a public body that relates to an identifiable employee concerning the nature of employment, job capacity or performance, or is otherwise related to the scope of employment.4 A written grievance would clearly be related to the scope of the teacher's employment, and could be withheld from public disclosure. Likewise, the sections relating to the grievance hearing before the school board or fact-finding panel allow the hearing to be private, at the discretion of the teacher. The Code of Virginia section setting forth the procedure for questions of grievability is silent on whether oral arguments should be open or closed. However, looking at the relevant statutes in pari materia, it is apparent that the intent of the General Assembly was that a grievance could be kept private and out of the public eye. To opine that a discussion about whether an issue is grievable must take place in public could result in inconsistencies in the law and negate a teacher's right to keep a grievance private.
To illustrate the potential inconsistencies, I will use the fact scenario that you presented. As noted above, once this grievance is reduced to writing, that writing may be withheld as a personnel record. The school administration did not feel the issue that was the basis for filing the grievance was, by definition, a grievable issue. Regardless of whether the school board chose to receive oral or written arguments from the administration and the teacher on the issue of grievability, it is hard to imagine that these arguments would not be intertwined with the facts and background of the grievance itself. Furthermore, the arguments would likely spring from the written grievance, which we have already established to be a personnel record. Any written arguments received could likewise be considered personnel records, because they would deal with an issue in the scope of an identifiable employee's employment. However, if the school board elected to receive oral arguments, it is less clear that such hearing could be closed to the public. One could argue that any grievance relates to the performance of the teacher, which is allowed to be discussed in closed session under subdivision A 1 of § 2.2-3711. However, FOIA also requires any exemption to be construed narrowly, and interpreting "performance" to include an issue such as students being late to class because of the bus route may be an improperly broad interpretation of that language.
Proceeding on the assumption, without deciding definitively, that oral arguments on this issue could not be closed under subdivision A 1 of § 2.2-3711, continue the hypothetical to the next step. Assume that the hearing on the issue of grievability and any ensuing discussion by the school board was held in an open meeting. If the school board found that the issue was indeed grievable, the grievant would have the right to have the issue heard by either a fact-finding panel or the school board. In either scenario, the grievant has a right for the hearing to be private. Any records relating to the grievance, such as the statement of grievance or written arguments on grievability, could be withheld from public disclosure. But if the hearing on grievability was required to be open to the public, and the arguments were intertwined with the facts of the grievance itself, the ability of the grievant to keep the grievance process private has, essentially, been negated.
In many, if not the majority of cases, it seems that a grievance would clearly fall under subdivision A 1 of § 2.2-3711, which would allow a school board to go into closed session to discuss the assignment, appointment, promotion, performance, demotion, salaries, disciplining or resignation of teachers. A grievance would likely fall under one of these categories. In addition to the right of a teacher to keep a grievance hearing private pursuant to § 22.1-311 or 22.1-312, the FOIA exemption would also protect these hearings, as well as any discussion on the issue of grievability.
The situation becomes more complex when a grievance does not clearly fall within the confines of the FOIA exemption, which must be construed narrowly. The Attorney General has opined that the express right of a private hearing in a grievance situation cannot be overridden by FOIA. In this instance, requiring a discussion of grievability to be open to the public in essence nullifies the grievant's right to keep the issue private at future stages of the process. Reading all the relevant statutes in pari materia, it is apparent that the General Assembly's intent was to allow a teacher to keep the process private, at his discretion. The written grievance can be protected as a personnel record, a hearing before a fact-finding panel or the school board can be kept private, and the Attorney General opined that the findings of fact by a fact-finding panel can also be kept private. Therefore, even though § 22.1-314 is silent as to whether it may be private, to require it to be open would result in potential inconsistencies in the application of the law.
1 See 1983-84 Op. Atty. Gen. Va. 314.
2 See 1983-84 Op. Atty. Gen. Va. 314, citing 1980-81 Op. Atty. Gen. Va. at 265, Dowdy v. Franklin, 203 Va. 7, 121 S.E. 2d 817 (1961).
3 See Black's Law Dictionary (7th Edition).
4 See Freedom of Information Advisory Opinion 04 (2003).


Category Archive for "Discovery & Evidence"
Every year, changes are made to the Federal Rules of Evidence and Federal Rules of Civil Procedure. In 2017, the Supreme Court approved substantive changes to Federal Rule of Evidence 807. This year, the committee proposed and the Supreme Court adopted changes to Federal Rules of Evidence 803 and 902. These changes will go into effect on December 1, 2018.
(16) Statements in Ancient Documents. A statement in a document that is at least 20 years old, and whose authenticity is established.
You can find these Committee Notes at rulesofevidence.org.
FRE 902 is being updated to add two new categories of self-authenticating evidence.
Robin Houston sued Publix arising from an alleged slip-and-fall at a Publix Super Market in McDonough, Georgia. The alleged incident occurred on July 24, 2012, after which Houston treated with a medical doctor who sold the medical debt for Houston’s treatment to a litigation investment company, ML Healthcare. ML Healthcare purchases medical debt at a discount rate from medical providers, using a contract that allows ML Healthcare to recover out of an tort settlement or judgment the full cost of the medical care provided. At trial, Publix sought to introduce evidence of this collateral source relationship to show Houston’s doctor’s were biased in their testimony and that Houston’s claimed medical expenses were unreasonable.
Stated in its simplest terms, Georgia’s collateral source rule allows that “the receipt of benefits or mitigation of loss from sources other than the defendant will not operate to diminish plaintiff’s recovery of damages.”1)Polito v. Holland, 258 Ga. 54, 55 (1988) (A plaintiff as “the right to recover damages undiminished by collateral benefits). Evidence of collateral sources payments is inadmissible if it would be used only to show a reduction in damages.2)Id. at 56. However, evidence of collateral source payments is admissible if it serves a valid evidentiary purpose other than revealing the benefits to the jury.
In the ML Healthcare Services case, Publix sought to introduce evidence of collateral source payments to attack the credibility of the causation opinions offered by Houston’s doctors. The district court found that ML Healthcare’s business model, which included fronting medical expenses for plaintiffs to treating physicians was highly relevant and probative as to the bias of the treating doctors, as was the reasonableness of the medical expenses. As such, the district court found the collateral source evidence had the valid evidentiary purpose of impeaching the witnesses and was admissible.
According to this 11th Circuit opinion, in Alabama, any showing that the Plaintiff has received collateral source payments (whether insurance payments, workmen’s compensation benefits, or from a litigation investment firm) may constitute reversible error.3)Southern v. Plumb Tools, 696 F.2d 1321 (11th Cir. 1983). Note: My practical experience has differed, so I may need to do some additional looking into this issue. But suffice it to say that if you’re in an 11th Circuit state other than Georgia, your state law will be applied and may achieve a different result than this opinion allows.
The 11th Circuit upheld the district court’s ruling that evidence of collateral source payments was admissible for the purpose of showing potential bias of Houston’s treating physicians’ testimony. For ML Healthcare to be profitable it must subsidize plaintiffs who win their lawsuits. The arrangement creates a risk of bias on the part of medical providers who receive referrals from ML Healthcare and later testify on behalf of the patients/plaintiffs they have treated. If the doctor failed to provide causation testimony favorable to the plaintiff’s claim, ML Healthcare would find doctors who were willing to provide such testimony.
Because the collateral source evidence served a legitimate evidentiary purpose (other than to reduce damages, for which purpose the evidence would have been inadmissible), the district court did not abuse its discretion in admitting this evidence.
1. ↑ Polito v. Holland, 258 Ga. 54, 55 (1988) (A plaintiff as “the right to recover damages undiminished by collateral benefits).
2. ↑ Id. at 56.
3. ↑ Southern v. Plumb Tools, 696 F.2d 1321 (11th Cir. 1983).
I am prefacing this article by saying that I am a resident of Gardendale, Alabama. This article is not a commentary on Gardendale’s efforts to secede its schools system from Jefferson County, nor am I expressing any opinion about the rulings of either the 11th Circuit or Judge Haikala in the United State District Court for the Northern District of Alabama. My purpose here is to illustrate the long teeth of social media content and how Facebook posts can be used to show intent (fairly or not), and thereby impute motives to the actors involved in litigation. Spoiler: It can be very bad for the parties.
In the last few decades, a number of municipalities have withdrawn their school from the Jefferson County system and form independent school districts. Gardendale is the most recent such school to attempt to do so. Their efforts met with opposition, and the issue ended up in court in front of Judge Haikala of the United State District Court for the Northern District of Alabama. Judge Haikala found that Gardendale’s secession attempt was racially motivated and was impermissible (That’s the shortest possible version of her 190-page opinion), but her order incorporated a compromise that left both sides unhappy and resulted in an appeal to the 11th Circuit Court of Appeals.
The parties briefed and argued their positions before the 11th Circuit, and recently, Judge William H. Pryor wrote the opinion for the 11th Circuit denying Gardendale the opportunity to form an independent school district. In his opinion, Judge Pryor spent as sizable chunk of space supporting the court’s opinion that Gardendale’s efforts were racially motivated. Much of the content he used to support the position was from Facebook posts on a Facebook group operated by supporters of the movement.
Below is the bulk of the section of Judge Pryor’s opinion that deals with the social media issue. You can download the opinion in its entirety here.
The Gardendale secession movement started when the schools in that City were becoming racially diverse while the population of the City remained overwhelmingly white. In 1996, the student population in Gardendale was 92 percent white and 8 percent black. The current population of the City has a similar demographic makeup. As of 2010, more than 88 percent of the population was white and less than 9 percent was black. But by 2010, only one of the four public schools in Gardendale, Snow Rogers Elementary School, came close to mirroring the racial demographics of the City. In 2010, Snow Rogers Elementary was about 94 percent white and 4 percent black. The other three schools in Gardendale—Gardendale Elementary, Bragg Middle School, and Gardendale High School—were less than 80 percent white and 20 or more percent black. Gardendale Elementary was about 75 percent white and 20 percent black; Bragg Middle was about 77 percent white and 21 percent black; and Gardendale High was about 75 percent white and 23 percent black. And in later years, the schools continued to become more racially diverse in even starker contrast with the demographics of the City. Snow Rogers Elementary had a student population that was about 85 percent white and 5 percent black during the 2015–16 academic year. Gardendale Elementary was about 71 percent white and 24 percent black. Bragg Middle was about 67 percent white and 29 percent black. And Gardendale High was about 71 percent white and 27 percent black.
The racial diversity of the schools in Gardendale stems from the attendance of students who reside outside its municipal limits. Students from the predominantly black community of North Smithfield/Greenleaf Heights constitute nearly 30 percent of the black student population at Bragg Middle and more than 25 percent of the black student population at Gardendale High. Students from the unincorporated and predominantly white community of Mount Olive as well as students from the more integrated Town of Brookside and City of Graysville also attend the middle and high schools in Gardendale. Dozens of black students have taken advantage of the majority-to-minority transfer provision in the 1971 order to attend schools in Gardendale. For example, from 2009 to 2016, anywhere from 12 to 22 black students attended Gardendale High annually as transfer students. After the No Child Left Behind Act of 2001, 20 U.S.C. §§ 6301 et seq., required public school boards to permit students attending schools “identified for school improvement” to transfer to schools not so identified, 20 U.S.C. § 6316 (repealed 2015), the district court also amended the 1971 order to permit some black students from less successful schools to transfer to Snow Rogers Elementary and Bragg Middle. Because of capacity issues, the district court permitted only 12 students to transfer to Bragg Middle for each of the relevant years. In sum, Gardendale schools are racially diverse institutions in an otherwise white enclave in large part because zoning and desegregation transfer opportunities permit other Jefferson County students to attend the schools.
Against this backdrop, four individuals, Tim Bagwell, Chris Lucas, David Salters, and Chris Segroves, launched a campaign to create a municipal school system for Gardendale. Segroves later became the president of the Gardendale Board. Lucas became a member of the Board. And Bagwell and Salters served on an advisory board.
As part of their campaign, Bagwell, Lucas, and Salters created and maintained a Facebook page titled “Gardendale City Schools.” The page was publicly accessible, but the secession leaders served as page administrators with the ability to approve new members, delete posts, and change the privacy settings.
1) Will kids in North Gardendale (who may currently be zoned for county schools in Morris) be zoned for a city school system? Yes. All kids within the municipal boundaries of Gardendale would go to schools within the new system.
2) Would Gardendale be required to bring in minorities from outside of the municipal boundaries to achieve some sort of quota? No. The school system is for residents of Gardendale (whatever those boundaries end up being and whatever that racial make-up is). The idea is that it might include an expansion to include an annexation of certain parts of Mount Olive.
Indeed, the secession leaders and others regularly discussed the status of Mount Olive, though practical obstacles related to the local fire district ultimately thwarted their intended plans.
You and I may not think that it is particularly fair to accept an out-of-district area not subject to our control or taxation as a price to pay to gain approval for separation, and we would be within reason to feel that way. The extent to which fair has anything to do with it depends on how you weigh your priorities in deciding whether it is too bitter a pill to swallow or if the ultimate treatment goal, i.e. separation, is worth it.
It’s impossible to know whether the decisions of Judge Haikala or the 11th Circuit would have differed had these indicting statements not been made on Facebook. Maybe there would have been enough other evidence for them to find that the secession attempt was racially motivated. But for Judge Pryor to have spent that much time incorporating the social media content into his opinion, you can know for a certainty that it weighed on the 11th Circuit’s ruling.
This is but one case showing how social media content can derail litigation and cause massive wreckage to a case. Associate’s Mind has recently written about how social media affected a 9th Circuit decision.
Be mindful of what you put online. I’ve heard several folks say, “Never put anything in writing that you wouldn’t want a lawyer to hand you as an exhibit while you’re on a witness stand.” This seems like a good rule of thumb for anyone to consider before publishing social media content.
Here are a couple other topics where I’ve written about litigation and social media content: The Discoverability of Social Media Content in Civil Litigation and Responding to Social Media Discovery Objections in Alabama.
When you’re defending a case, I expect you are likely issuing discovery requests to the plaintiff (hopefully, immediately after filing an answer). I expect there is also a high probability those discovery requests include social media discovery requests. If your experience has been anything like mine, those social media discovery requests draw objections more often than not. Here are some things to consider: Are your Interrogatories and Requests for Production narrowly tailored enough to be proper? Was the objection appropriate or just a shot in the dark assuming that you won’t notice or be bothered to make a fuss over it? Do you know how to respond to the objections?
Through no fault of his own, a man was involved in a car wreck. To be compensated for his injuries and damages, he sued my client. He claimed as a result of the accident he was no longer able to ride or race motorcycles. We issued discovery requests asking him to identify his social media accounts. He complied. We then scoured one of his social media accounts for anything that we could use to discredit his testimony. We found plenty of photographs and comments that supported our contention that his claims may not be completely genuine.
We brought out some of this at his deposition, and he attempted to explain what we were seeing. Then when he made the same claims in front of the jury, we used even more of the photographs and his own words left in comments sections to impeach his testimony. We achieved a result for our client that likely wouldn’t have been possible without the social media discovery we had obtained.
Rule 33 Interrogatory: Describe any and all social media accounts or sites that you have an account with or access to and state your username on said accounts, including but not limited to any information on Facebook, Twitter, Google+, MySpace, Instagram, Pinterest, Flickr, YouTube, LinkedIn or any other blogs or other websites that you currently use or have used in the five years prior to the subject incident, including on the date of the collision. NOTE: You are hereby instructed not to delete, erase, or otherwise destroy the content contained on any social media page(s), blog, or other website that contains information, posts, photographs, or other content produced, posted, or otherwise authored by you, throughout the course of this litigation.
Rule 34 Request for Production: Produce any and all archived information, posts, tweets, photographs, and/or any other material authored or posted by you on any social media or websites used or frequented by you and pertaining to either the subject incident or any damages or injuries that you allege have arisen from the subject incident.
Response: Plaintiff objects to this request based on the fact that it is overly broad, calls for information irrelevant immaterial to this accident, is invasive of the plaintiff’s privacy, the retrieval or compilation of which would be unduly burdensome on the plaintiff and is otherwise not reasonably calculated to lead to the discovery of admissible evidence.
Social media content is subject to discovery under the applicable rules of civil procedure and is not privileged or protected by privacy right, and Alabama courts have properly admitted it into evidence, including relevant statements and photographs from social media accounts. See e.g., Morgan v. Morgan, 183 So.3d 945 (Ala.Civ.App. 2014) (wherein the court admitted evidence, included statements and photographs, from social media site); Davis v. Blackstock, 160 So.3d 310 (Ala.Civ.App. 2014) (wherein photographs from a social media page were admitted into evidence and testimony elicited regarding the contents of the social media page); Grimes v. Saban, 173 So.3d 919 (Ala. 2014) (wherein the contents of the parties’ Facebook pages were admitted and testimony elicited regarding the contents of the social media pages).
As the requesting party, you must be mindful that under the Alabama Rules of Civil Procedure the requested information must be reasonably calculated to lead to the discovery of admissible evidence (which is different from the new Federal Rules of Civil Procedure adopted in 12/2016). Where the plaintiff has alleged injuries resulting from the subject accident, you can reasonably expect in his deposition, the plaintiff will testify regarding the subject incident and his claimed injuries. Any statements made by the plaintiff, whether on social media or in any other discoverable form, that bear on the subject accident or his injuries or damages, or abilities either prior or subsequent to the accident are discoverable under the Alabama Rules of Civil Procedure, whether or not the evidence is admissible.
Social media posts that are not privatized or otherwise protected are functionally no different than any other statement made by a party in a public place, and no less discoverable. Anything posted by a plaintiff on any social media accounts is a “statement” as defined by Alabama Rule of Evidence 801(a). Under Alabama Rule of Evidence 801(d)(2) such statements, if offered against a plaintiff, are not hearsay and are admissible as evidence.
… you can attend my cleverly titled webinar, “Social Media and E-Discovery” with Alabama Law Weekly on February 21.
I was recently involved in a car wreck case in which plaintiff’s counsel firmly believed that my client was using her phone at the time of the accident. The only problem was … the facts did support his assertion. There wasn’t even one tiny, little fact that he could present to the jury to support his belief. But never one to let facts get in the way of a theory, he had a plan. A plan that involved him impeaching the defendant by asking her irrelevant questions and then using immaterial evidence to impeach her with.
Q: But there are times you do text while driving, right?
A: It’s very rare, if I ever do it. And I have a voice-to-text app that I can use so I don’t have to look away from the road. I mean, I have a two-year-old little boy, you know. Plus it’s illegal.
Q: But when you’re driving, do you sometimes use the phone whether it’s for videos or pictures or browsing the internet or any of those things?
Q: Is that something you never do?
A: I don’t ever do that if I’m driving.
Q: Okay. Well, videos — do you record videos while driving?
A: No. My phone is hooked up to the car.
And that was it. At that point, the defendant was like one of those insects who’s been snared in a web and doesn’t know it yet. The spidery lawyer sprung on her with a video he had pulled from her Facebook page for just this occasion. The video showed the defendant recording her son who was singing in the back seat of the car. She was in the driver’s seat in her church parking lot, navigating the stop-and-go traffic of one of Birmingham’s mega-churches and recording her toddler while stopped.
There it is. She said she never records video while driving. But he had video of her doing so. A couple of important things here: (1) there was still no evidence that she was using her phone in any way at the time of the accident, and (2) the impeachment video was taken nine months after the accident. He had his impeachment evidence but it was irrelevant to anything that happened on the roadway the day of the accident.
There are only certain ways that impeachment evidence can be used, and Alabama Rules of Evidence 607 and 608 set these out.
truthfulness has been attacked by opinion or reputation evidence or otherwise.
witness being cross-examined has testified.
Impeaching a witness is allowable when the proffered evidence relates to a material issue. But when a question calls for “patently immaterial and irrelevant testimony,” impeachment is improper, as “a witness may not be impeached by showing that she has made contradictory statements about immaterial matters.
Even if the plaintiff had intended to use the video footage not to impeach the defendant directly, but rather to show evidence of her character, it was still not a permissible use. Alabama Rule of Evidence 404 precludes evidence of a person’s character or a character trait to prove conformity therewith on a particular occasion. The video couldn’t be used to suggest to the jury that she had used her phone on one occasion, so she must also have been using when the accident happened.
In short, the video didn’t have any permissible method of being admitted and seen by the jury. So if you’re laying a trap to ensnare some unwitting witness, be sure that the evidence you’re using and the testimony you’re obtaining are material to case. Otherwise, you’ll just have wasted all that cleverness and plotting.
 Hobbs v. State, 669 So.2d 1030, 1032 (Ala.Crim.App. 1995) (quoting Tarver v. State, 500 So.2d 1232, 1243 (Ala.Crim.App. 1986)).
 Pope & Quint, Inc. v. Davis, 485 So. 2d 1134, 1137 (Ala. 1986).
 King v. State, 171 So. 254, 256 (Ala. 1936); Smith v. State, 73 So. 2d 916, 919 (1954) (holding, “The effect of the question was to impeach [the witness] on an immaterial matter, which is not allowable.”).
 See Ala. R. Evid. 404(a).
Ever year on December 1, adopted changes that govern various rules of the profession go into effect. In 2015, the Advisory Committee on Rules of Civil Procedure made significant changes to discovery rules of the Federal Rules of Civil Procedure. In 2016, lesser changes were made to FRCP 4, 6, and 82. This year, the comment period is still open for proposed changes to Federal Rule of Evidence 807 (“FRE 807”) , which addresses the residual exception to hearsay rules.
In 1997, parts of Federal Rules of Evidence 803 and 804 were taken out of those rules and made into a new rule, FRE 807. In 2011, Congress made linguistic changes to FRE 807 “to make them more easily understood and to make style and terminology consistent throughout the rules,” but did not make any changes that would affect meaning. The proposed 2017 changes to Federal Rule of Evidence 807 are the first substantial changes to the rule since it was first adopted 20 years ago.
(2) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts.
(b) Notice. The statement is admissible only if, the proponent gives an adverse party reasonable written notice of an intent to offer the statement , including its substance and the declarant’s name — so that the party has a fair opportunity to meet it. The notice must be provided before the trial or hearing — or during trial or hearing if the court, for good cause, excuses a lack of earlier notice.
The Advisory Committee published the following comments discussing the proposed changes to FRE 807, following their Fall 2016 meeting.
The requirement that the court find trustworthiness “equivalent” to the circumstantial guarantees in the Rule 803 and 804 exceptions should be deleted. That standard is exceedingly difficult to apply, because there is no unitary standard of trustworthiness in the Rule 803 and 804 exceptions. It is common ground that statements falling within the Rule 804 exceptions are not as reliable as those admissible under Rule 803; and it is also clear that the bases of reliability differ from exception to exception. Moreover, one of the exceptions subject to “equivalence” review — Rule 804(b)(6) forfeiture — is not based on reliability at all. Given the difficulty of the “equivalence” standard, a better approach is simply to require the judge to find that the hearsay offered under Rule 807 is trustworthy.
Trustworthiness can best be defined as a consideration of both circumstantial guarantees and corroborating evidence. Most courts find corroborating evidence to be relevant to the reliability enquiry, but some do not. An amendment would be useful to provide uniformity in the approach to evaluating trustworthiness under the residual exception — and substantively, that amendment should specifically allow the court to consider corroborating evidence, as corroboration is a typical source for assuring that a statement is reliable.
The requirements in Rule 807 that the residual hearsay must be proof of a “material fact” and that admission of residual hearsay be in “the interests of justice” have not served any purpose. The inclusion of the language “material fact” is in conflict with the studious avoidance of the term “materiality” in Rule 403 — and that avoidance was well-reasoned, because the term “material” is so fuzzy. The courts have essentially held that “material” means “relevant” — and so nothing is added to Rule 807 by including it there. Likewise nothing is added to Rule 807 by referring to the interests of justice because that guidance is already provided by Rule 102. These provisions were added to the residual exception to emphasize that the exception was to be used only in truly exceptional situations. Deleting them might change the tone a bit, to signal that while hearsay must still be reliable to be admitted under Rule 807, there is no longer a requirement that the use must be rare and exceptional.
The requirement in the residual exception that the hearsay statement must be “more probative than any other evidence that the proponent can obtain through reasonable efforts” should be retained. This will preserve the rule that proponents cannot use the residual exception unless they need it. And it will send a signal that the changes proposed are modest — there is no attempt to allow the residual exception to swallow the categorical exceptions, or even to permit the use the residual exception if the categorical exceptions are available.
The Fordham Law Review has published two articles discussing and critical of the proposed changes to FRE 807: “The Three Commandments of Amending the Federal Rules of Evidence” by Victor Gold and “Expanding (or Just Fixing) the Residual Exception to the Hearsay Rule” by Daniel J. Capra.
My recent article “Identifying Improper Requests for Admission” can be found in the Spring 2017 edition of the Alabama Defense Lawyers Association Journal. [I’ll post a link once it’s available]. This article is a touched up and tamped down version of a post that first appeared on the blog here: Beware Bogus Requests for Admission.


§ 647-4 Community Advisory Committee; exemptions for special-use properties.
§ 647-5 Pesticide application for mosquitoes; notice to public; notification waivers.
§ 647-6 Notices of pesticide applications.
§ 647-7 Rules and regulations.
§ 647-10 Signs; notice requirements.
§ 647-13 Penalties for offenses.
§ 647-15 When effective; filing with state.
Disinfectants intended to destroy or irreversibly inactivate infectious or other undesirable bacteria, pathogenic fungi or viruses on surfaces or inanimate objects.
Sanitizers intended to reduce the number of living bacteria or viable virus particles on inanimate surfaces, in water or in air.
Bacteriostats intended to inhibit the growth of bacteria in the presence of moisture.
Sterilizers intended to destroy viruses and all living bacteria, fungi and their spores on inanimate surfaces.
Fungicides and fungistats intended to inhibit the growth of, or destroy, fungi (including yeasts) pathogenic to man or other animals on inanimate surfaces.
Commodity preservatives and protectants to inhibit the growth of or destroy bacteria in or on raw materials (such as adhesives and plastics) used in manufacturing or manufactured procedures (such as fuel, textiles, lubricants and paints), but not in the pulp and paper process or cooling towers.
Any insect, rodent, fungus or weed.
Any other form of terrestrial or aquatic or animal life or virus, bacteria or other microorganism (except viruses, bacteria or other microorganisms on or in living man or other living animals) which the Commissioner of the New York State Department of Environmental Conservation declares to be a pest.
Any substance or mixture of substances intended for preventing, destroying, repelling or mitigating any pest.
Any substance or mixture of substances intended for use as a plant regulator, defoliator or desiccant.
Includes all pesticide products registered by the United States Environmental Protection Agency and the New York State Department of Environmental Conservation, and all products for which experimental use permits and conditional registrations, special local needs registrations and emergency exemptions have been granted by the United States Environmental Protection Agency or the New York State Department of Environmental Conservation.
Effective January 1, 2000, no County department or agency, nor any pesticide applicator employed by the County or agency as a contractor or subcontractor for pest control purposes, shall apply on County property (as owner or tenant) any pesticide classified as Toxicity Category I by the United States Environmental Protection Agency, or any pesticide classified as a known, likely, or possible carcinogen by the United States Environmental Protection Agency, except as provided for in § 647-3 of this article.
Effective January 1, 2001, no County department or agency, nor any pesticide applicator employed by the County or agency as a contractor or subcontractor for pest control purposes, shall apply on County property (as owner or tenant) any pesticide classified as Toxicity Category II by the United States Environmental Protection Agency, or any pesticide classified as restricted use by the United States Environmental Protection Agency or the New York State Department of Environmental Conservation, except as provided for in § 647-3 of this article.
Effective July 1, 2003, no County department or agency, nor any pesticide applicator employed by the County or agency as a contractor or subcontractor for pest control purposes, shall apply any pesticide on County property (as owner or tenant), except as provided for in § 647-3 of this article.
Pesticides used in medical treatment or practices.
Nothing in this article should be interpreted to supersede any settlement of Long Island Neighborhood Network v. County of Suffolk with regard to proposed new County golf courses. On County-owned and -operated golf courses, the Superintendent is permitted to declare a "golf course emergency" if, in his or her discretion, there is an imminent threat of property damage that requires the use of materials otherwise prohibited by this article.
Contact two members of the CAC and inform them of his/her next step to solve the problem. The Superintendent shall then meet with the Committee in its entirety, within a reasonable period of time.
After three times, per golf course, of the Superintendent taking the above action, he/she must meet with the CAC prior to taking any actions.
The Superintendent has 30 days to submit a written report to the Chairman of the CAC. The report shall include the nature of the emergency, the cause and effect of the emergency, the steps taken to resolve the emergency and how and why these pesticidal actions were taken. The Superintendent shall take the least toxic approach to its resolution.
A meeting shall be held with the CAC within 60 days of this action being taken. The meeting will discuss the contents of the above report.
Editor's Note: Former § 380-4, Pest management plan; Committee, which immediately followed this section, was deleted at time of adoption of Code (see Ch. 1, General Provisions, Art. IV).
A Suffolk County Advisory Committee (CAC) is hereby created to oversee the implementation of this article by the County Department of Environment and Energy in conjunction with the County Department of Health Services.
One individual to be selected by the Chairman of the Environment, Planning, and Agriculture Committee of the County Legislature with a background in organic pest management practices or one from a recognized environmental group.
The CAC shall hold four public meetings each year with representatives of the County Department of Health Services and the County Department of Environment and Energy, open to public participation.
The CAC shall issue annual reports to the Suffolk County Legislature on the progress of implementation of this article.
The CAC may grant a temporary exemption of up to one year for special-use property located within Suffolk County. The list of specific properties may be determined in the exemption so granted, and the specific pesticides to be used may be determined by the CAC. The list may be amended periodically by the CAC. Any such exemption may be periodically renewed for a period not to exceed one year. If a vote on an exemption by CAC results in two or more votes being cast in opposition to the request, then such exemption shall not take effect unless and until it is ratified by a duly enacted resolution of the County of Suffolk, even if a majority of the entire membership of the CAC has voted in favor of the exemption.
Pesticide application for adult mosquitoes by the County of Suffolk, or by persons or businesses under contract or lease with the County, on County-owned or County-leased parks, golf courses or recreational areas or any property adjacent to municipally owned, state-owned or federally owned parks, golf courses or recreational areas shall comply with the public-notice requirements set forth in § 647-6 of this article.
Pesticide applicators shall notify the public at least 24 hours prior to discharging or causing to be discharged any pesticide for adult mosquitoes on municipally owned, state-owned or federally owned parks, golf courses or recreational areas.
Warning notices shall be visibly posted only at entry points to all streets or areas to be treated.
The County Department of Health Services may issue notification waivers granting exemptions for limited, localized or emergency applications of small amounts of the least toxic chemical pesticides or for facilities, where the cost of compliance exceeds the health benefit to be derived from compliance or where there is imminent danger to the public health as certified in writing by the Commissioner of the County Department of Health Services or his/her designee.
The County Department of Health Services shall prepare a notice of pesticide application, copies of which are to be completed and posted at least 24 hours prior to pesticide application specified in § 647-5 above.
Address, date, approximate time, pest to be controlled, method of application and specific sites to be treated.
Common and trade names of the pesticide.
Name and telephone number of person responsible for the application.
A statement that: "This notice form is issued by the County Department of Health Services."
Such notices shall remain in place for the duration of the acute toxicity of the pesticide.
In the event that the County Department of Health Services determines that emergency circumstances preclude the use of the warning notice set forth in Subsection B of this section, the Department may use an alternative means of notification as long as it achieves the goal and objective of making people living in the immediate vicinity of the affected community aware of the pesticide application about to occur.
The Commissioner of the County Department of Health Services, in conjunction with the County Department of Environment and Energy, is hereby authorized to promulgate and issue such rules and regulations as shall be necessary, appropriate, and sufficient to implement the provisions of this article.
This Legislature hereby finds and determines that a recent amendment to the New York Environmental Conservation Law (§ 33-1004) authorizes the County of Suffolk to adopt a local law providing for all of the special requirements for commercial and residential lawn applications established by the State of New York, including a requirement for prior notification of certain spray pesticide applications by commercial lawn applicators.
Therefore, the purpose of this article is to adopt the special requirements for commercial and residential lawn applications as set forth in § 33-1004 of the New York Environmental Conservation Law, in order to mitigate public concerns regarding pesticide exposure.
That portion of a multiple dwelling occupied by one or more persons as the residence or home of such persons.
The application of pesticides for the purpose of producing an agricultural commodity.
The application of pesticides around or near the foundation of a building for the purpose of indoor pest control.
The application of pesticides by or on behalf of agencies, except that agencies shall be subject to visual notification requirements pursuant to § 33-1003 of the New York Environmental Conservation Law where such application is within 100 feet of a dwelling, multiple dwelling, public building or public park.
All retail establishments that sell general-use pesticides for commercial or residential lawn application shall display a sign meeting standards established by the Commissioner of the New York State Department of Environmental Conservation, and such sign shall be displayed in a conspicuous place as close as possible to the place where such pesticides are displayed.
A warning notice directing consumers to follow directions on labels.
A provision to inform the customer of the posting requirements set forth in § 647-11 of this article.
A recommendation that the customer notify neighbors prior to the application of pesticides so that such neighbors may take whatever precautions are necessary to avoid pesticide exposure.
The application of antimicrobial pesticides and antimicrobial products as defined by FIFRA in 7 U.S.C. §§ 136(mm) and 136q(h)(2).
The use of an aerosol product with a directed spray, in containers of 18 fluid ounces or less, when used to protect individuals from an imminent threat from stinging and biting insects, including venomous spiders, bees, wasps and hornets. This subsection shall not exempt from notification the use of any fogger product or aerosol product that discharges to a wide area.
The use of nonvolatile insect or rodent bait in a tamper-resistant container.
The application of a pesticide classified by the United States Environmental Protection Agency as an exempt material under 40 CFR 152.25.
The application of a pesticide which the United States Environmental Protection Agency has determined satisfies its reduced-risk criteria, including a biopesticide.
The use of boric acid and disodium octaborate tetrahydrate.
The use of horticultural soap and oils that do not contain synthetic pesticides or synergists.
The application of a granular pesticide, where "granular pesticide" means any ground-applied solid pesticide that is not a dust or powder.
The application of a pesticide by direct injection into a plant or the ground.
The spot application of a pesticide, where "spot application" means the application of pesticide in a manually pressurized or nonpressurized container of 32 fluid ounces or less to an area of ground less than nine square feet.
The application of a pesticide to the ground or turf of any cemetery.
An emergency application of a pesticide when necessary to protect against an imminent threat to human health; provided, however, that prior to any such emergency application, the person providing such application shall make a good-faith effort to supply the written notice required pursuant to this article. Upon making an emergency application, the person making such an application shall notify the Commissioner of the New York State Department of Health, using a form developed by such Commissioner for such purposes, which shall include at least the name of the person making the application, the location of such application, the date of such application, the product name and United States Environmental Protection Agency registration number of the pesticide applied and the reason for such application.
The address of the premises where application is to be done.
The name and telephone number and pesticide business registration number or certified applicator number of the person providing the commercial lawn application.
The specific date of the pesticide application and two alternative dates to the proposed date of application when, due to weather conditions, the pesticide application on the proposed date is precluded. The alternative dates shall be consecutive business days to the proposed date.
The product name or names and the United States Environmental Protection Agency registration number or numbers of the pesticide or pesticides to be applied.
A statement which reads: "This notice is to inform you of a pending application to neighboring property. You may wish to take precautions to minimize pesticide exposure to yourself, family members, pets or family possessions. Further information about the product or products being applied, including any warnings that appear on the labels of such pesticide or pesticides that are pertinent to the protection of humans, animals or the environment, can be obtained by calling the National Pesticides Telecommunications Network at 1-800-858-7378 or the New York State Department of Health Center for Environmental Health Info line at 1-800-458-1158."
All persons performing residential lawn applications treating an area of more than 100 square feet shall affix markers to be placed within or along the perimeter of the area where pesticides will be applied. Markers are to be placed so as to be clearly visible to persons immediately outside the perimeter of such property. Such markers shall be posted at least 12 inches above the ground and shall be at least four inches by five inches in size.
The markers required pursuant to this section shall be in place on the day during which the pesticide is being applied and shall instruct persons not to enter the property and not to remove the signs for a period of at least 24 hours. Such instruction shall be printed boldly in letters at least 3/8 of an inch in height.
The County Department of Health Services shall enforce the provisions of this article in accordance with § 71-2907 of the New York State Environmental Conservation Law, and any sanctions assessed pursuant thereto shall be payable to and deposited with the County of Suffolk.
The Commissioner of the New York State Department of Health shall review any emergency form submitted pursuant to § 647-10C(12) of this article to ensure that the circumstances warrant such emergency application. Such forms shall be kept on file at the New York State Department of Health for three years from the date of application and shall be made available to any person upon written request.
The Commissioner of the County Department of Health Services shall process and investigate alleged violations of this article which pertain to persons performing residential lawn applications in accordance with the rules and regulations of the New York State Department of Environmental Conservation.
Notwithstanding any provision of law to the contrary, an owner or owner's agent of a multiple dwelling, or an owner, owner's agent or a person in a position of authority for all other types of premises, who violates any rule or regulation or order issued pursuant to § 647-10C of this article (written notice of commercial lawn application), and any person who violates any provision of § 647-11 of this article (markers for residential lawn application) shall be issued at the time of the offense a written warning and shall also be issued educational materials pursuant to § 33-1005, Subdivision 2, of the New York Environmental Conservation Law. Such person shall, however, for a second violation be liable to the people of the state for a civil penalty not to exceed $100, and not to exceed $250 for any subsequent violation, such penalties to be assessed by the Commissioner of the New York State Department of Environmental Conservation after a hearing or opportunity to be heard.
Notwithstanding any provision of law to the contrary, any person who violates the provisions of § 647-10A of this article (retail establishment disclosure signs) or any rule, regulation or order issued thereunder shall be issued a warning for the first violation and shall be provided seven days to correct such violation, and shall be liable to the people of the state for a civil penalty not to exceed $100 for a second violation, and not to exceed $250 for a subsequent violation, to be assessed by the Commissioner of the New York State Department of Environmental Conservation after a hearing or opportunity to be heard.
Any person who, having the culpable mental states defined in § 15.05, Subdivision (1) or (2), or § 20.20 of the New York Penal Law, violates any provision of this article, except an offense relating to the application of a general-use pesticide, shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine not to exceed $5,000 for each day during which such violation continues or by imprisonment for a term of not more than one year, or by both such fine and imprisonment. If the conviction is for a subsequent offense committed after a first conviction of such person under this subsection, punishment shall be by a fine not to exceed $10,000 for each day during which such violation continues or by imprisonment for a term of not more than one year, or by both such fine and imprisonment. Prosecution hereunder may be conducted by the District Attorney consistent with § 71-0403 of the New York Environmental Conservation Law.
This article shall apply to all actions occurring on or after March 1, 2001.
This article shall take effect on the first day of the first January immediately succeeding the filing of this article with the New York Secretary of State.
Within 20 days after adoption of this article, the Clerk of the County Legislature shall forward one certified copy hereof to the Commissioner of the New York State Department of Environmental Conservation and one certified copy to the New York State Attorney General.