Archive for the 'Criminal Law' Category

Defining Sexual Assault For Politicians Who Don’t Get It

I’ve got to use some Tic Tacs, just in case I start kissing her…You know I’m automatically attracted to beautiful—I just start kissing them. It’s like a magnet. Just kiss. I don’t even wait. And when you’re a star, they let you do it. You can do anything. Grab them by the p—y. You can do anything.

Most have heard, or at least read, Mr. Trump’s recorded statements on his behavior around women. Trump himself has described the comment as locker room talk.  However, in the wake of the comments, a number of women have come forward to accuse Trump of sexual assault.  For instance, a woman named Jessica Leeds has accused Trump of fondling her on an airplane.  Trump has responded to these accusations by, among other things, arguing that the women who have come forward are not attractive enough for him to assault.

For obvious reasons, Trump’s words have drawn broad criticism from politicians on both sides of the aisle. Many prominent Republicans, such as John McCain, have even withdrawn their support for Trump’s candidacy for president.

However, this withdrawal of support has been halfhearted to say the least. Many Republican politicians who denounced Trump—such as South Dakota Senator John Thune, New Jersey Representative Scott Garrett, and Alabama Representative Bradley Byrne—have gone on to make it clear that their denunciation of his statements is still not enough to stop them from casting their vote in his favor.  Rape

Some politicians have taken a different approach to the comments. When asked in an interview, Alabama Senator Jeff Sessions stated that he wouldn’t characterize what Trump was describing as sexual assault.  In a follow up, he was asked “So if you grab a woman by the genitals, that’s not sexual assault?”  Senator Sessions responded “I don’t know.  It’s not clear that he—how that would occur.”

Jeff Sessions has since issued a statement that he has been misrepresented based on this interview and his response was based on confusion as to Trump’s words and the question posed by the reporters. With this in mind, it seems worth clearing up confusion on what is sexual assault under the law.  Just as a favor to the good Senator.

Understanding the Crimes and Causes of Action of Sexual Assault

Sexual assault is when any sexual activity occurs without clear consent from both parties. While the exact elements of the crime vary from state to state, it is a crime in every state. Sexual assault laws also forbid sexual activity with a person who is unable to consent such as people who are mentally ill, under the age of 18, or intoxicated are considered unable to consent. There are more specific crimes, also with elements that can vary quite a bit from state to state, that fall under the umbrella of sexual assault, such as: rape, molestation, forced sodomy, and incest.

Sexual assault does not require, but may include, force or threat of force. Instead, they hinge on the sexual touching being unwanted and offensive.  This can cover a wide range of types of victimization.  As an example, where a person—without any comment, warning or consent—were to kiss a woman or, “grab them by the p—y” that would unquestionably be criminal sexual assault.

The most grotesque and savage or crimes falling under the umbrella of sexual assault is, of course, rape. The exact elements of rape vary more drastically from state to state than any other crime of sexual assault, with some states requiring penetration by male genitalia, while others have a broader approach to include other unwanted sex acts.  Some states do not recognize rape committed by a spouse, while most do not make the distinction. While these are the most common distinctions, there are many other variations depending on the state.

At its core, rape is a forced sex act achieved by force or threat of force. This can include psychological coercion as well as physical force.  Depending on the rape statute and the exact facts, grabbing a woman “by the p—y” could very well rise to the level of rape.

Both sexual assault and rape give rise to civil charges as well as criminal charges if the victim wishes to bring such a case against the person who attacked them.

Sexual Assault in the U.S.

About 20 million out of 112 million women in the U.S., nearly one in five, have been raped during their lifetime. Nearly 300,000 people aged 12 and older are victims of rape or sexual assault in the U.S. during any given year. Even with numbers this high, authorities still estimate that only approximately a third of all sexual assault cases are reported to the police.

Despite the seriousness of this issue, there seems to have been substantial confusion amongst politicians as to what exactly represents sexual assault or rape. It has not been so long since the infamous “legitimate rape” comments from Former Missouri Representative Todd Akin.  In the recent debates, Mr. Trump took quite a bit of pressing on his comments before finally stating that he never acted on his words—dancing around the question of whether he understood that his recorded remarks described sexual assault.

Sexual assault is too serious an issue to trivialize its promotion as “locker room talk” and too dangerous to let those with the most power over passing litigation to misunderstand. It is crucial that our leaders recognize and condemn these heinous acts with more than just empty words.  Our leaders need to understand the problem and be part of the solution.

Blowing the Whistle: Former Illinois Police Officer’s Retaliation Lawsuit

The police are there to ensure that laws are neutrally enforced. However, when police start showing favoritism to those with political connections, it often must be the police themselves who bring it to the attention of the public.  This was the situation which, at least allegedly, faced former Village of Orland Hills police officer Mr. David Kristofek.

Mr. Kristofek has been embroiled in a lawsuit with both the Village and its police chief for several years, accusing them of firing him in retaliation for his reporting inappropriate police behavior to the FBI. After narrowly avoiding dismissal several times, his case has just recently  passed the summary judgement phase.

The Village of Orland Hills Turns a Blind Eye

The facts certainly don’t look good for the Orland Hills police. After a traffic stop revealed that that a young man named Alonzo Marshall was driving a car with a suspended registration due to lack of insurance, Mr. Kristofek—along with two other police officers—arrested the man per police department policy.

However, after a slew of phone calls between Mr. Marshall, his mother, the Mayor of Village of Orland Hills, and the police chief Thomas Scully, Mr. Marshall was released and all record of the arrest was confiscated from Mr. Kristofek and deleted from police computers.  When Mr. Kristofek complained to the deputy police chief about the situation, he was told ““Did you not understand what you were [expletive] told?”  The deputy later told Mr. Kristofek that the situation was “above you and me.” Body Cam

Several months later, Mr. Kristofek attended a training seminar on official police misconduct. Ironically, the seminar included a hypothetical with near identical facts to the incident with Mr. Marshall and described it as official misconduct.  Mr. Kristofek grew concerned that he may be criminally liable for his actions and sought legal advice on the issue.  He was advised to report the incident to the FBI and reached out to the other two police officers on the arrest to join him in reporting the misconduct.  The other two officers both declined and Mr. Kristofek reported the incident alone.  What the two officers did do, however, was inform the police chief—Mr. Scully—that Mr. Kristofek was speaking with the FBI.

After learning this, Mr. Scully called Mr. Kristofek to his office, had him confirm that he was speaking to the FBI, and offered him a choice to resign or be fired. Kristofek refused to tender his resignation and was fired.  Scully spoke with a Village Administrator who approved the firing.  The stated reason was that Kristofek “contacted several members of this agency, telling them that the Chief of Police was a criminal and was going to be indicted,” and had “accused the Village of being corrupt.”

Mr. Kristofek filed a retaliation lawsuit against both Police Chief Scully and the Village of Orland Hills itself shortly after this.

Retaliation Explained

Retaliation, at its most basic, is where an employer takes negative employment action (firing, demoting, etc.) against an employee for some sort of protected conduct. Most retaliation lawsuits deal with an employee being fired for reporting an employer’s illegal employment practices.  However, it can apply where an employer takes negative employment action for basically any action an employee takes that is protected by law.

Here, Mr. Kristofek is making a First Amendment retaliation claim, arguing that he—as an employee of the government—was fired for exercising his right to free speech. This a claim that only really applies to public employees as private employers have a great deal of leeway when it comes to firing you for speech they don’t agree with.

In order to succeed in a First Amendment retaliation claim, a public employee such as Mr. Kristofek must show three things:

  1. their speech was constitutionally protected,
  2. this protected speech was the cause of negative employment action taken against them by their employer, and
  3. the employee suffered a harm as a result of this negative employment action.

In this case, the last bit isn’t particularly controversial; if you lose your job, you have been harmed.  The evidence also seems to point towards Mr. Kristofek being fired over speaking to the FBI.  This means that the more complicated issue is whether his speech was protected.

It certainly seems like it should be. If police aren’t protected when they blow the whistle on the misconduct of their fellow officers, it sets a heck of a bad precedent.

Mr. Kristofek’s Case So Far

The district court has dismissed Mr. Kristofek’s case not once, but twice, ruling against him on essentially every factor from whether he was speaking pursuant to his duties to whether the speech was even of public concern. Fortunately, the 7th Circuit Appeals court has reversed the district court both times and salvaged Mr. Kristofek’s lawsuit. This most recent time, the 7th Circuit has even assigned a new district court judge to review the case.

Scully successfully argued to the district court that reporting police misconduct is part of a policeman’s duties and thus speech in this vein is not made as a private citizen. He also argued that the speech was not of public concern, the interest in efficient police duties outweighed the interest in reporting to the FBI, and that the allegations themselves were baseless.

The 7th Circuit Appeals Court was buying none of it. Not only did they point out that courts have always considered reporting corruption a matter of serious public concern, they rejected Sully’s argument that reporting corruption was part of Kristofek’s job. This argument seems particularly silly; it amounts to an argument that Kristofek was fired for doing his job. However, the court rejected it on the grounds that there was no evidence that Kristofek had a duty as an officer to report the incident. The truth of the statements was ruled to be irrelevant because Kristofek’s speech would be protected, regardless of truthfulness, unless he actually knew or was reckless in not knowing that his allegations were false.

While the court felt that the interests weighed in favor of Mr. Kristofek in this case, they made it clear that there could be some cases where the interest in reporting potential misconduct could be outweighed by the disruption it could cause. Misconduct, as a strong public concern, requires a particularly convincing reasons to outweigh the public’s interest. However, where there is little factual basis to the allegations, the court said that the public’s interest could be outweighed.

Preventing police corruption is extremely important, just like all government corruption. The people closest to that corruption are the public employees who work around it.  It’s important that we zealously protect their ability to report misconduct because these employees may be the only people who could report such conduct.  This case is far from over, but the 7th Circuit Appeals court has helped ensure that public employees are receiving the protection they need.

What Taxpayers Ought to Know About IRS Scams

A recent upsurge of IRS phone scams in Fort Worth, Texas has brought national attention to the issue. So far this year, over $73,000 has been stolen from Fort Worth residents by callers claiming to be IRS employees. IRS phone scams are a nationwide problem. Last year, over 300,000 incidences were reported from all over the country.

These phone scams usually involve imposter IRS employees telling victims that they owe back taxes, or unpaid taxes, from a previous year. Sometimes, the scammers will threaten to call the police if the victim does not pay. Scammers will also claim that the victim is being audited in order to acquire financial information.

Having a basic understanding of IRS procedures for back-tax collections and audits will help alert you to scams.

IRS Collection Procedures

Individuals owe back taxes if they did not pay their taxes in full or in part. There are several steps the IRS takes to collect back taxes.

The first step in the collection process is to provide the taxpayer with notice, by sending a notice letter. This letter will contain a bill for the amount owed, including interest and penalties, and a demand for the taxpayer to pay in full. If the taxpayer does not respond to the IRS, it will send another letter with an assessed balance that includes interest and penalties. If you did not receive a notice prior to the phone call in question, it is likely a scam. IRS

If the taxpayer cannot pay-in-full there are usually several options available, such as installment agreements or offers-in-compromise. An installment agreement allows the taxpayer to pay incrementally. An offer-in-compromise is where the taxpayer negotiates with the IRS to pay a reduced amount in lieu of the full amount.

Only after the notice letter, and the taxpayer’s failure to pay, will the IRS initiate collection proceedings. Typically, the IRS files a Notice of Federal Tax Lien if the taxpayer fails to pay. A tax lien is a claim to the delinquent taxpayer’s property that is used as security for unpaid tax debt. The IRS will also use wage garnishments and bank levies to collect unpaid taxes.

IRS Audit Procedures

The IRS performs audits to review financial information and assess whether tax return information was reported accurately.  Taxpayers are selected for audits at random and when the information reported on their returns does not match their tax documentation, such as W-2s or Forms 1099s.

Audits begin with a mailed letter or phone call informing the taxpayer that he or she is being audited. If the IRS contacts the taxpayer by phone, a letter will be sent confirming the audit. These notification letters usually list documents and other materials that must be sent to the IRS. After the IRS reviews the information sent, it makes a determination whether the information reported was correct. If the taxpayer disagrees with the determination, then the taxpayer may appeal within 30 days.

If a caller asks for financial information directly over the phone, it is likely a scam since the IRS usually sends a letter confirming an audit and listing documents that must be sent.

IRS Scam Alerts

In addition to failing to follow IRS procedures, there are other common scam indicators. For instance, scammers frequently require unusual payment methods and threaten serious consequences unless their victim makes an immediate payment.

Reports state that the IRS imposters require payments through pre-loaded debit cards or wire transfers. Frequently, scammers will request iTunes gift cards as payments, telling their victims that the IRS has partnered with iTunes. The real IRS normally does not accept over-the-phone payments, even with regular debt or credit cards.

Victims are also frequently told that if they do not pay immediately, they will be arrested, deported, or face suspension of drivers’ licenses. Unless you have committed a serious tax crime, it is more likely that the IRS put a tax lien on your property. Tax liens usually show up on credit reports because the IRS files a Notice of Federal Tax Lien to put other creditors on notice. If no tax lien appears on your credit report, it is unlikely that you need to pay taxes immediately.

If an “IRS employee” does not follow the procedures for tax collection, audits, and refunds laid out above, it is likely a scam.

Congress Gives the Go-Ahead to 9/11 Lawsuits Against Saudi Arabia

Congress has recently overridden President Obama’s veto on the Justice Against Sponsors of Terrorism Act (JASTA), which is the first time that it has overridden any of Obama’s vetos. This controversial law allows for private citizens to sue the country of Saudi Arabia for the country’s role the 9/11 attacks in American courts.

Saudi Arabia has long been accused of having provided support to the terrorists who were responsible for the 9/11 attacks. After all, 15 of the hijackers were from Saudi Arabia. Osama bin Ladin, the late leader of Al Qaeda, had ties to the royal family, as his grandfather was the royal family’s architect.

However, the Saudi Arabian government’s role in the September 11 attacks appeared to be larger than what most Americans thought it was when Congress released the now-famous “28 pages” pulled from a 2002 congressional inquiry into the attacks earlier this year. Within that document, there are numerous examples of how Saudi Arabia appeared to have provided support to the hijackers.

This assistance ranged from an alleged Saudi intelligence officer who financially provided two of the hijackers a place to stay and helping them find an apartment in San Diego to a known senior Al Qaeda operations coordinator maintaining contact with various U.S.-based employees of the Saudi ambassador to the United States. When this information was made public, families of many of the victims wanted to hold Saudi Arabia responsible for its role in facilitating the attacks.

Saudi Arabia Liable For 9/11?

Aiding and abetting someone in committing a crime is a well-known crime in and of itself. A person can also be sued in civil court for assisting another in carrying out criminal activity. Currently, a person can only sue other people and organizations in civil court for their role in aiding and abetting in a crime that led to various injuries, such as a wrongful death or a significant loss of property.

However, JASTA will allow people who have suffered a physical injury, loss of property, or death as a result of a terrorist attack committed in the United States to file a lawsuit in federal court against a foreign state for the role that any of its officials, employees, or agents played in supporting the attack while acting in their official capacity. This act imposes liability on foreign states for knowingly providing help to known terrorist organizations who then carry out attacks on the United States. While most laws do not apply to events that have happened before they are enacted, JASTA also retroactively applies to events happening on or after September 11, 2001.

Normally, foreign governments are immune from lawsuits within the United States. Allowing people to sue foreign governments may negatively impact the federal government’s relationship with that foreign country. With this concern in mind, the Justice Against Sponsors of Terrorism Act does permit the Attorney General to stop any lawsuit on behalf of the Secretary of State. This can only be done in the event that the United States is engaged in good faith talks with the defendant concerning a resolution for the claims being brought against the defendant.

However, the stay on the lawsuit will only be allowed to last for 180 days, after which the Attorney General will have to request a 180-day extension to continue the stay if the discussions are still ongoing. Although the law, and, thus, the 180-day stay period, has yet to be tested, it does appear that the stay cannot be used to infinitely stall a lawsuit and otherwise provide the country immunity from terrorism-related lawsuits.

With the passage of JASTA, the families of those who died in the September 11 attacks can finally receive some form of justice by being able to bring lawsuits against Saudi Arabia for providing assistance to the hijackers and enabling them to carry out their attacks. It will also provide the victims of future terrorist attacks a path of recourse against any foreign government that decides to aid and abet members of terrorist organizations in their efforts to commit future terrorist attacks on American soil. If you or a loved one wish to bring a lawsuit against Saudi Arabia for the 9/11 attacks, it would be in your best interest to contact a personal injury attorney to discuss your new right to a lawsuit under JASTA.

The Return of Stop and Frisk?

Donald Trump’s statements during the first presidential debate of 2016 raised two issues about Stop and Frisk; a controversial practice used by police departments across the country. Firstly, there was confusion about the accuracy of Mr. Trump’s statement that the practice is still constitutional. There was also speculation as to why gun rights activists, specifically the National Rifle Association (NRA), remained silent after Mr. Trump’s comments about Stop and Frisk.

What is Stop and Frisk?

As a general rule, police officers must obtain a warrant based on probable cause for a search or seizure to be constitutional under the Fourth Amendment. Stop and frisk, also known as a “terry stops,” provides an exception to the warrant requirement.  The name “terry stop,” comes from the case Terry v. Ohio, where the Supreme Court held that police officers may briefly detain a criminal suspect without a warrant. Due to safety concerns, officers may also perform a “pat-down,” or search a suspected criminal’s outer clothing, upon reasonable suspicion that the individual is armed and dangerous.  Stop and Frisk

A controversial facet of this practice is that stops require an officer’s “reasonable suspicion” that an individual committed or is about to commit a crime, rather than probable cause.  Probable cause requires at least some concrete evidence that a crime has been committed, whereas reasonable suspicion merely requires an officer’s reasonable belief of criminal activity. Stop and frisk critics argue that the practice has led to increased racial profiling, because police officers do not need concrete evidence for stops.

Are Terry Stops Still Constitutional?

After the debate, there appeared to be confusion among fact-checkers as to whether Mr. Trump was correct that terry stops are still constitutional after the decision in Floyd v. City of New York. In Floyd v. City of New York, a district court judge ruled that the New York Police Department’s stop and frisk practice was an unconstitutional violation of the plaintiff’s rights under the Equal Protection Clause and Fourth Amendment.

As Lester Holt correctly pointed out, the decision was made because the practice constituted racial profiling. The court’s decision was based on statistical data demonstrating a disproportionate impact on Blacks and Hispanics under the practice. Of the 4.4 million people stopped under the policy only 10 percent were White, while 52 percent were Black, 31 percent were Hispanic. Of the millions of people frisked, only 1.5 percent had weapons on them. It also appeared that whites were just as likely to possess drugs or weapons as their Black and Hispanic counterparts. Since the court’s decision, a monitor has been appointed at the NYPD to oversee that the practice stays within constitutional limits and Mayor de Blasio has dropped the appeal.

In short, the practice was found unconstitutional as it was applied in New York City, but, terry stops in general are still constitutional.

Why Has the NRA Been Silent about Terry Stops?

Several conservative commentators criticized the NRA for its silence regarding Mr. Trump’s support of the stop and frisk practice. During the debate, the NRA tweeted about every anti-gun comment made by Mrs. Clinton. Yet the NRA remained silent during Mr. Trump’s statement “we have to take the guns away from these people that have them and that are bad people that shouldn’t have them.”

The data generated by New York City’s stop and frisk policy supports the NRA’s anti-gun restriction arguments. In New York City, crime rates have continued to drop, even after the aggressive stop and frisk policy was modified.  In other words, crime rate reductions do not seem to correlate with weapon confiscation. These statistics provide more credibility to the organization’s famous saying “guns don’t kill people, people kill people.”

Shouldn’t the NRA join the ranks of people disputing the constitutionality of terry stops… perhaps with a Second Amendment argument?