Author Archive for Jason Cheung

The Future of Civil Asset Forfeiture

Civil asset forfeiture has long been a bipartisan issue that both sides of the country can unite behind. Democrats are in favor of undoing practices that indirectly target minorities and abuse criminal defendants. Republicans can rally against big government seizing property. Civil Asset Forfeiture has always been problematic as the practice allows law enforcement to seize property regardless of whether the defendant is even charged of a crime. The first cases testing the limits of Civil Asset Forfeiture are now in the Supreme Court and it’s no surprise that the Court frowns about asset forfeiture as much as voters and lawmakers do.

civil asset forfeitureWhat Happened?

In 2005, Shannon Nelson was convicted by a Colorado jury of two felonies and three misdemeanors relating to the alleged sexual abuse of her four children. The trial court sentenced her to 20 years in prison and ordered her to pay over $8,000 in court costs, fees, and restitution. Nelson appealed the conviction and the case was overturned. Nelson was later acquitted of all charges. Nelson asked the state to refund the amount she had already paid, but Colorado refused, citing the state Exoneration Act, which allowed Colorado to retain funds from convictions unless the defendant can prove in civil court that she is innocent by clear and convincing evidence. Nelson lost in the state Supreme Court, but the Federal Supreme Court overturned Colorado’s ruling.

In the 7-1 decision, Justice Ginsburg writing for the majority argued that since Nelson’s conviction had been overturned, her presumption of innocence had also been restored. Since the law presumes that criminal defendants are innocent until proven guilty, states cannot write laws requiring innocent people to prove they are not guilty. Since the law usually requires that parties return any payments they receive if a judgment is reversed, Nelson’s payment of the fines should have been returned when her conviction was overturned.

Justice Thomas’s lone dissent is based on the argument that Nelson has no right to the money she had already given to the state. The dissent’s argument is peculiar as it reasons that since Nelson had not attempted to collect her refund through a law that her attorneys challenged as unconstitutional, no rights have been violated and therefore Colorado doesn’t have to return the money.

What Does This Case Mean Going Forward?

The Nelson case is significant, as it signals that the Court is now ready to rule on civil forfeiture cases.  The Court had the perfect excuse not to hear the case, as Colorado changed the Exoneration Act prior to oral arguments, thereby making the case moot, but the Court chose to make a ruling anyway, paving the way for tighter restrictions on civil forfeiture by creating this precedent.

And the Court should create this precedent. Although civil forfeiture started with good intentions, it has morphed into a process by which police and prosecutors can take property from citizens without having to meet standards such as “guilty beyond a reasonable doubt.” It would be destructive to our rights – and has already caused significant loss of property – if the police could simply change the criminal standards by moving issues into a different court. Despite Justice Thomas’s arguments, seizing a person’s property by changing the requirements for due process is still a violation of the Due Process Clause.

Justice Gorsuch’s First Opinion, Creditors are Not Debt Collectors

The Fair Debt Collections Practices Act, or FBCPA, forbids debt collectors from harassing debtors, including using abusive language, make threats, call the debtor late at night or at work, or make misleading statements. The FBCPA applies to collection agencies and other third parties creditors may hire to chase debt. The FBCPA usually does not apply to creditors themselves, with a few exceptions. It is important that creditors and debtors alike know whether the FBCPA applies to their case, as the FBCPA allows the debtor to countersue if the debt collector violates the FBCPA.

Justice Gorsuch’s first opinion deals with whether creditors who purchase debt from other creditors and pursue their newly purchased debts are debt collectors under the FBCPA. In Henson v. Santander, Citi Financial Auto financed a chain of car loans, which were purchased by Santander, a Spanish bank. Santander attempted to collect the loans and the plaintiffs sued, alleging that Santander had violated FBCPA by harassing and intimidating them. The Supreme Court ruled 9-0 in favor of Santander, declaring that creditors who purchase debt and then attempt to collect the debt themselves without a debt collector are not themselves debt collectors under FBCPA.

Neil GorsuchWhat Was His Focus?

Justice Gorsuch focused primarily on the text of the Fair Debt Collections Act, which defines a debt collector as a person or business whose principal purpose is collecting “debts owed by another.” In other words, under FBCPA, a debt collector can only be a debt collector if the person is collecting debt on behalf of another person. If a person attempts to collect the debt on behalf of him or herself, that person is not a debt collector. Since that person is legally not a debt collector, FBCPA would not apply. Therefore, this person could use collection tactics that the FBCPA would normally prohibit, such as calling late at night or threatening the debtor.

Gorsuch’s opinion and the ruling of the Court are perfectly in line with the role of the judiciary in the Constitution’s checks and balances. Congress has chosen to write a law designed to protect debtors with a built in exemption for certain creditors. It is not the Court’s role to rewrite the law; if people have a problem with the FBCPA, they can ask Congress to change the law or vote in candidates who will change the FBCPA. With that said, the logic behind the law and the outcome of this case is disturbing. The FBCPA essentially states that debt collectors cannot harass debtors, but the owners of those debts can. If a bank like Santander wishes to use unsavory tactics to pressure people into paying their bills, those banks can save money and have greater options in pressuring debtors by cutting out the middle man.

So What Does this Mean for Us?

Arguably, this makes those banks more accountable if they forgo the debt collection agencies, but with the enormous market buying and selling debts, it actually makes it more difficult for debtors to figure out who owns and owes what. If I take out a mortgage with Bank of America, and Bank of America sells my mortgage to Wells Fargo, which sells my mortgage to Santander, I would have no way of knowing these purchases are happening. The resulting confusion on a mass scale could trigger a financial collapse, as it did in 2008 when the housing market tanked. The Court’s ruling and Gorsuch’s written opinion will encourage those same types of debt sales, as buying debt becomes not only more profitable, but easier to enforce legally as well. Congress must change the FBCPA to discourage these types of sales if we are to prevent another housing and financial crisis.

Teen Sexting May Land Parents in Hot Water

Quick show of hands, how many people have sent or received from a boyfriend or girlfriend sexually explicit text when they were teenagers? In the age of iPhones, the answer is probably “most young people.” Sexting is so prevalent, it probably cost Hillary Clinton the presidency. The House has recently passed the “Protecting Against Child Exploitation Act of 2017,” (PACEA) a bill which mandates a 15 year prison sentence for anyone who shares sexually explicit material of minors, including the minors themselves. Additionally, PACEA mandates the same 15 year sentence for the parents or legal guardians of the minors who “knowingly permits” the minor to send such text messages.

The proposed bill is noble in its intentions, but the methods are extreme. First, the bill would potentially send minors to prison for more than a decade. A 15 year old girl could find herself in prison until she is 30 years old for the crime of sending a nude photo of herself to her boyfriend. Similarly, her parents could also be spending 15 years in prison if they knew she was sending those photos, but didn’t stop her. Since the prison time is a mandatory minimum, there is nothing the judge or jury can do to change the sentence if any of them are found guilty.

sextingThis bill should draw ire from both the left and the right sides of the political spectrum. For liberals, this bill represents yet another example of why criminal justice reform is necessary. These types of bills are likely to target and affect people who make less income than their wealthier counterparts. Although the bill says nothing about income, the wealthy can probably pay a private criminal defense attorney to fight off bogus charges like these. Poorer citizens can only rely on public defenders, who may become overwhelmed with cases like these. For conservatives, this bill should represent a nanny state attempting to dictate to parents how they raise their children. If the parents can’t discipline the children the way the state wants them to, then the whole family will be thrown in prison.

As stated earlier though, the PACEA does have noble intentions. Child pornography among human traffickers and pedophiles is a serious problem. Catching traffickers would certainly be easier if law enforcement could download the traffickers’ outbox and show the jury everything being sent. Since the PACEA does have a legitimate purpose, a few changes could probably fix a lot of the problems described.

How Can Congress Approve this Bill?

First, letting a judge or jury determine the sentence would help our courts separate childish teens from actual predators. If a 17 year old minor is sending nude videos to her 20 year old boyfriend, the parties should be receiving a fine or community service, at most. On the other hand, if a fifty year old man is expecting a 12 year old girl to send pictures of her chest, 15 years in prison might be too light. Mandatory minimums are usually built into law because citizens don’t trust their legal system to give correct verdicts. Although there might be some cases where the defendant gets off too easily, like Brock Turner, those types of injustices tend to be rarer than cases where the mandatory minimum gives too harsh a punishment.

Second, there is no need to charge the parents or legal guardians with sexting. The biggest reason to make parental neglect a crime in this instance would be to prevent guardians from exploiting their children.  Protecting children from their own parents is a potentially worthwhile goal, but the most serious crime would not be the minor sexting. If a guardian is exploiting a child, the government should be checking the parents’ text messages for incriminating evidence, not the kids.

I’ve been very critical of the PACEA so far, but there is one thing it gets right. Although 20 states have passed anti-sexting laws, there is currently no federal law against sexting despite the fact the technology allows sexting to cross state lines. Federal law covers child pornography, but sexting itself is not a federal offense, even if it can be used as evidence of a more serious crime. The PACEA would potentially fill this void, if it can avoid the more draconian methods currently in the bill.

Obstruction of Justice: What Does it Mean for President Trump?

Irony hits even the most powerful among us. After spending months trying to persuade Director Comey to tell the public that he wasn’t personally under investigation, Donald Trump wakes up on his birthday to find that he is being investigated by Special Counsel Mueller for obstruction of justice. Since obstruction is the same crime that undid President Nixon and almost brought down President Clinton, Mr. Trump finds himself in hostile legal waters. What exactly is obstruction of justice? Is there another evidence for the investigation that Special Counsel Mueller is committing? And is there enough evidence for impeachment?

Obstruction of JusticeWhat Is Obstruction of Justice?

Congress has defined obstruction of justice under Title 18 Section 1519 of the U.S. Code as:

“Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsified, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under Title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.”

To obtain a conviction, prosecutors must prove beyond a reasonable doubt that the defendant committed the act and that the defendant intended to commit the act. For instance, if a defendant killed someone with a car but didn’t intend to, then the defendant can’t be guilty of murder since one element, intent, is missing. Similarly, a defendant who intended to kill someone with his car, but didn’t actually kill the person, cannot be guilty of murder because the act of murder was not committed (although attempted murder or assault would be easier to prove in that instance).

To be sure, the key here would be intent. Since we are dealing with the Presidency here, many of the actions Trump could take to obstruct the investigation would usually be legal. Normally, a President has the power to decide which types of cases the Justice Department should prosecute or fire an FBI Director. Therefore, any investigation regarding obstruction would need to focus on intent. Checking abuse of power is not about whether the power was used, but whether the power was used for improper goals. If Trump fired Director Comey because he truly believed that was best for the nation, then it would not be obstruction. On the other hand, if Trump fired Directory Comey because he didn’t want to see Flynn imprisoned, then it would be obstruction unless the President could explain why preventing Flynn from being prosecuted was in the best interests of the nation.

Establishing intent is always a challenge for prosecutors, as intent deals with what a defendant is thinking rather than what a defendant is doing. Obviously, if there is a “smoking gun” like the Nixon tapes, then proving intent would be a lot easier. However, the law doesn’t always require a smoking gun. If the facts and circumstances of a case suggest a pattern and practice of corrupt intent, that may be enough to tip the balance. Republicans would be wise to avoid examining specific verbiage such as “I hope you can let this go” and focus on the overall picture forming – whether the President has a pattern of removing people who ask too many questions about the Russian investigation and the Trump campaign.

Is There Enough Evidence For An Investigation?

The standard for a criminal conviction is “beyond a reasonable doubt.” However, if we’re asking whether there is enough evidence for an investigation to ensure we’re not just perpetuating “a witch hunt,” the standard would likely be probable cause. For example, a police officer only needs probable cause to pull a car over. Only after the officer arrests the driver and the prosecutor charges the driver with a DUI will the “beyond a reasonable doubt” standard be applied.

With all the talking points about “fake news,” it’s important to create a base line of facts that reasonable people can agree on. After determining which facts are 100% true, we can determine whether they warrant an investigation. So far, the agreed upon timeline appears to be:

This is a long chain of events, so let’s parse through it. Prosecutors, i.e. Mueller and his team, would be looking to fit these events with the two elements for obstruction, the act of impending the investigation, and the intent to do so. In this list, terminating Comey, the tweet about releasing tapes should Comey “leak to the press,” and threatening to terminate Mueller might be considered acts of obstruction. Removing the leading investigators could derail the investigation, although White House Spokeswoman Sanders claims the investigation would continue even after Comey left.

The White House would argue that these actions, terminating an FBI Director and considering the termination of a Special Counselor, are completely legal actions. However, while the actions might normally be legitimate, case law does state that if otherwise legal actions are done for corrupt reasons, then those otherwise legal actions would themselves become illegal. For example, if a prosecutor brings charges against a political opponent and a court later finds that the prosecutor acted based on politics, not law, then the action would become illegitimate, even though it is normally a prosecutor’s job to bring charges.

This idea can also be found in employment law; an employer can fire an employee for any reason, except for illegal ones, such as racial discrimination. Looking through the justifications that the White House gave for firing James Comey, it is very likely that the President gave a bunch of pretexts to mask the fact that he terminated the FBI Director for not dropping the investigation into Michael Flynn.

Of course, it is also possible that Trump had other motivations for firing Comey. Perhaps all Trump wanted was for Comey to announce that the President was not personally under investigation. Or maybe Trump really wanted Comey to say he was “loyal” and not just “honest.” We don’t really know, but if there is a potential for improper and illegal intentions, then its worthy of investigation. If the investigation cannot eliminate these foolish-but-not-illegal intentions, then the investigation will likely be a bust. But if the investigation has evidence to show that the illegal intention was the actual cause of these terminations, then the case would move to Congress to consider impeachment.

Montana Congressman Gianforte Pleads Guilty to Assault, but Can He Face a Lawsuit?

Montana Congressman Greg Gianforte may have won election on May 25th, but his actions the previous night have already cast a shadow on his victory. Newly elected Congressman Gianforte was at a campaign rally/barbecue addressing a news crew from Fox News. Guardian Reporter Ben Jacobs entered the room and inquired Gianforte about his stance on the healthcare bill in the Senate after the Congressional Budget Office had given its score on the bill.

After Jacobs pressed Gianforte three times for an answer, Gianforte attacked Jacobs. Audio recording reveals shows signs of scuffing, Gianforte yelling “I’m sick and tired of you guys!” followed by Jacobs accusing Gianforte of body-slamming Jacobs and breaking the reporter’s glasses. The Fox News crew in the room testified that Gianforte grabbed Jacobs by the neck, slammed him into the ground, and then proceeded to punch the journalist a few times. Jacobs was taken to the hospital, although his injuries were not severe.

Gianforte’s campaign denied the allegations, instead accusing Jacobs of being a “liberal” who agitated Gianforte with his questions. However, the witnesses clearly stated that “at no point did any of us who witnessed this assault see Jacobs show any form of physical aggression toward Gianforte.” After winning though, Gianforte apologized to Jacobs in his victory speech.

Gianforte was charged with misdemeanor assault a few hours after the attack. He has since pled guilty of assault and received 180-day deferred sentence, 40 hours of community service, 20 hours of anger management, $300 fine, and $85 court fee. The deferred sentence means that Gianforte will not be facing any time in jail. However, the victim himself, Jacobs, could also bring a civil suit against the Congressman to recover for his own injuries.

Can Jacobs Successfully Sue the Congressman?

Normally, a private citizen cannot sue a public official for decisions that the official makes while in office. However, the Constitution’s “speech and debate” clause would not apply to the Jacobs case because Gianforte was not yet a Congressman when he allegedly assaulted Jacob. Even if Gianforte had been elected at that point though, Gianforte would still be potentially liable because hitting reporters is not a function of Congress and not be constitutionally protected.

Proving assault (and battery) would actually be very simple in a case like this. Jacobs would have to prove that Gianforte intended to cause reasonable fear of imminent harm. The audio shows that that attack was very intention on Gianforte’s part, as the Congressman declared “I’m sick and tired of you guys!” while hitting the reporter.

It’s questionable whether Jacobs felt any fear before the attack, as the attack seems to have happened so quickly that Jacobs had little time to react other than comment on his injuries – “Did you body slam me?” and “You broke my glasses.” Nevertheless, these types of remarks would likely be used as a means of showing that Jacobs did fear for his safety. Witness testimony also points that Gianforte grabbed his victim by the neck, which would cause most people to be afraid for their lives. However, it’s important to note that Gianforte doesn’t have to actually touch Jacob’s person to involve fear. Simply grabbing an object close to Jacob, such as his clothing or the recorder in Jacob’s hand, would be enough to satisfy this element.

Many online commenters have attempted to defend Gianforte by claiming that Jacobs entered the room uninvited or that Jacobs “deserved” it because Jacobs is a “liberal journalist.” Neither of those defenses would hold up in a court of law. The former is excessive force that the law doesn’t allow. Gianforte could have simply answered or ignored the question. Gianforte could have threatened to call security or the police. Instead, a Congressman chose to use violence against a man who was simply doing his job.

The latter is commentary about political beliefs, but has zero relevance as to whether or not the reporter was assaulted. The law is the law regardless of whether a person is liberal or conservative. The fact that line of thought – “liberal journalist” was even used to justify the assault is appalling beyond words, as it dehumanizes a man merely for having opinions.

If Jacobs is successful in court, and assuming Gianforte doesn’t want to settle before trial, Jacobs would be owed his compensatory damages, including medical expenses, repair or replacement for his glasses, and compensation for time off or emotional trauma. The judge might also consider adding punitive damages, as this case must serve as an example that physical violence is not acceptable in the public discourse, not even from a sitting Congressman.