Archive for the 'Criminal Law' CategoryPage 2 of 90

Take Trump Tower

With President-Elect Trump using Trump Tower as his base of operations for his transition team, 5th Avenue in Manhattan is swamped by police, secret service, and security guards. If the rumors that Trump plans to spend weekends at Trump Tower are true, than New Yorkers could face diverted traffic, rerouted subways, and a no-fly zone over the city for the next four years. Security concerns are also abound, as having the President live in a skyscraper in the city will be a magnet for terrorists and madmen alike.

So far, New Yorkers have had to contend themselves with protests and taking the Trump name off some buildings. However, there may be a legal option that New York could pursue that would save them from this nightmare: Take Trump Tower.

Eminent Domain

Eminent Domain should be a familiar term to the President-Elect. Mr. Trump has spent years abusing eminent domain, a process whereby government can seize private property for public use if the property owner is given just compensation. New York may have the opportunity to turn the tides on the alleged billionaire. 

Eminent domain requires that the government seize property for public use, such as a highway. New York requires a determination that a property is necessary for construction of a public improvement. Although the state could come up with a feasible “public improvement,”  like a public park or charity, here the mere act of taking the tower could also be considered a public use. Trump’s mere presence is congesting traffic and disrupting the local economy. Having Trump in New York on a regular schedule for the next four years would destroy any public use around Trump tower and potentially endanger the lives of many Americans.

Trump’s lawyers would likely argue that Trump is putting his tower to public use, as he is the President-Elect and running the nation. However, America already has a location for that kind of use: the White House. It would be a huge waste of money to maintain both the White House and Trump Tower as headquarters for the nation’s Executive branch.

Civil Asset Forfeiture

Civil Asset Forfeiture allows the government to take property from alleged criminals. In order for the government to seize property under civil asset forfeiture, the property has to be associated with the crime. This definition allows the government to bypass traditional criminal due process – the defendant need not be found guilty for the government to seize the property. States have often abused civil asset forfeiture to seize all kinds of property, including cash, cars, and even real estate.

New York is probing the Trump Foundation for fraud. If New York were to bring criminal charges against Mr. Trump, they could assert civil forfeiture over Trump Tower if the state could show that Trump ran his foundation from his tower.

Conflicts of Interest

If New York were to seriously threaten Trump Tower, the President-Elect would almost certainly take to Twitter to insult everyone involved. Republicans would no doubt accuse New York of harassing the President-Elect through shady legal avenues.

Trump and his supporters should ask themselves though, how is it that Trump is the first President who could have his property taken from him ? Although Trump’s property is more prominent than most – Trump loves to put his name on buildings in big gold letters – there is another reason. Unlike prior Presidents, the President-Elect has neglected to place his businesses into a blind trust. Instead, he’s letting his kids run his businesses.

This presents serious conflicts of interest. If Trump had to choose between defending America and defending his property, which would Trump choose? Trump properties are in many locations around the country, including California and New York. It would not be difficult for the states most opposed to Donald Trump to threaten to seize his properties if Trump tries to push policies that those states do not want.

If blue states in America can threaten Trump’s properties, what about Trump’s real estate abroad? If Trump’s property in Scotland or Dubai were threatened, would Trump threaten military action to save his businesses, even if his businesses have nothing to do with America’s interests?

An Appeal to Skeptics of the Recreational Marijuana Initiatives

Voters in Arizona, California, Maine, Massachusetts, and Nevada have already begun voting on whether to join Alaska, Colorado, the District of Columbia, Oregon, and Washington in legalizing marijuana for recreational use. These initiatives have combined the opposition in a group of odd bedfellows. Conservatives and Libertarians are rallying against these propositions and questions for vastly different reasons. Conservatives uphold the dangerousness of drugs and the crime they accompany. Libertarians say the initiatives do not go far enough and instead create more oppressive government while asserting to expand individual freedom. I make an appeal to these two groups to support the initiatives.

To Conservatives

Since at least the 1950s, drug prohibition has been a hallmark of conservative politics. This was only strengthened in the 1980s when President Reagan declared drugs a matter of national security. The prohibition on drugs has not worked. This is not surprising as the US has tested prohibition before and it didn’t go well then either. In fact, the current drug prohibition has the same destructive problems alcohol prohibition had in the 1920s and 1930s. The free market is another hallmark of conservative politics and it tells an important lesson about prohibitions. Finally, if conservatives are concerned about safety and the use of marijuana, wouldn’t it be better for it to be regulated rather than done on the black market?

Alcohol Prohibition: Scofflaws, Gangsters, and Death

National prohibition of alcohol was supposed to protect the American people from the purported scourge of alcohol. Instead, it created a nation of people who either openly, or behind closed doors, flouted the law. At the time, they were called “scofflaws.” Not only did it make every-day people into law breakers, but it made gangsters into billionaires almost overnight. Legitimate liquor stores were forcibly closed by government agents. Instead of stopping the flow of alcohol, as intended, the supply simply moved to the black market. 

Further, it prevented any sort of purity and health regulation upon alcohol. Whole new diseases in the US emerged overnight from Americans drinking adulterated bootleg alcohol. This bootleg alcohol was frequently made with dangerous chemicals including wood alcohol, that we now use as hand sanitizer. In 1933, the US finally reversed this course after realizing prohibition did not stop alcohol, it created scofflaws, enriched gangsters, and made Americans sicker.

These same issues are present in modern drug prohibition. According to the National Institute of Health, 22.2 Million every-day Americans use marijuana. In the current state of US law, every single one of these Americans are law breakers. Even in states that currently allow marijuana use, federal law still reigns supreme and confers this status upon these Americans. Just as Prohibition in the twenties made gangsters like Al Capone and Lucky Luciano into multimillionaires, the current drug prohibition has made drug cartels and street gangs into billionaires.

Drug prohibition has not made America safer either. Many innocent Americans are killed by street gangs defending drug territory and by law enforcement tackling drug trafficking. Drug users are not safer either as adulteration of street drugs, including marijuana, is common. The substance that is available to a marijuana user cannot be certified for purity or safety and is left completely up to the black market. Modern prohibition has failed just as it did back in the twenties.

The Free Market

Conservatives have long advocated for free markets. A basic tenant of free market economics is that demand drives the market. Demand is what shapes the market. With 22.2 million Americans consuming marijuana, there is clearly demand. Another tenant of free market economics is that supply will always rise to meet demand. This was proven in the twenties with prohibition and continues to be true with drug prohibition. If one accepts these tenants, one accepts that government, no matter the intensity of coercion applied, cannot stop drugs from entering the market. If this is accepted as true, perhaps it is wise to allow drugs but instead tax and regulate them to ensure their purity and to ensure that consumers have recourse against merchants who rip them off.

To Libertarians

Libertarians have long maintained drug legalization as an important policy pursuant to an individual’s freedom to choose what they consume. One would then think these new initiatives would be a boon for libertarians. However, the libertarian party is actually opposed to some of these initiatives. This comes from the fact that, while the initiatives legalize marijuana for recreational use at the state level, many of them also introduce harsh regulatory and tax regimes around them. I would appeal that libertarians not allow the perfect to be the enemy of the good in this situation.

There seems to be little appetite for a complete legalization and deregulation of marijuana in American society as of now. Even substances viewed as an unshakable part of American culture, such as alcohol, remain widely regulated despite being legal to possess and consume. A regulated and taxed legalization program, such as these initiatives, would move towards normalization of marijuana and away from the Reefer Madness viewpoint that currently pervades the thinking of some groups.

In Conclusion

As Americans fill in their ballots whether by mail or in the polling booth, I appeal to conservatives and libertarians to consider supporting these initiatives. To conservatives, consider this an opportunity to protect Americans from the issues caused by prohibition and to allow government and legitimate businesses to profit rather than gangsters. To libertarians, don’t let the perfect be the enemy of the good; consider these initiatives as a step towards a goal rather than a roadblock to perfection.

Do Trump’s Poll Watchers Break the Law?

Donald Trump has been calling on his supporters to watch polling places for signs of fraud. His website offers sign-ups for “poll monitors” to observe polling in “other communities.”  Trump argues it is out of concern that the entire election is rigged.  For instance, he was quoted as saying “I am leading in Florida. The polls all show it. If I lose Florida, we will know that there’s voter fraud. If there’s voter fraud, this election will be illegitimate, the election of the winner will be illegitimate, we will have a constitutional crisis, widespread civil disobedience, and the government will no longer be the government.” When Trump made this statement, he was behind in the Florida polls by an average of 5 points.

The concern, “rigged election” aside, is that the “poll monitors” will be a thinly veiled excuse to target minorities in the polling place.  Beyond Trump’s not so ambiguous “other communities” comments, he has made it clear that he believes a wave of illegal immigrants will be let into the country in order to vote for Hillary.  Those signing up for the program have not alleviated concerns.  One Florida volunteer posted a picture of a truck festooned in American flags with a cage around the bed of the truck and a comment reading “Florida we gonna landslide TRUMP….wear’n red at polls… We gonna be watch’n fer shenanigans…& haul ya away..”  Another made concerning statements about his intent on election day, saying “ I’ll look for . . . well, it’s called racial profiling. Mexicans. Syrians. People who can’t speak American,” he said. “I’m going to go right up behind them. I’ll do everything legally. I want to see if they are accountable. I’m not going to do anything illegal. I’m going to make them a little bit nervous.”

Is Trump’s plan for these poll watchers doing legal? Unfortunately, it is to an extent.  The issue hinges on voter challenge and voter intimidation laws nationwide.

Voter Challenge Laws Across the Nation

Whether or not Trump’s tactics are legal, they are certainly not new. For example, in 2012, a Tea Party group recruited over a million poll watchers with the goal of making voting “like driving and seeing the police following you.”  The problems hinge on abuse of existing voter challenge laws.

46 states have laws which allow a private citizen to challenge a person’s status as an eligible voter up to and on election day. While the exact details of the statute vary slightly from state to state, only 15 of these states require the challenger to provide any sort of documentation to support their challenge with most laws placing the burden on the person challenged to establish that they are a legal voter.  In Wisconsin, Virginia, Oregon, and South Carolina the challenger needs only a suspicion that the person is not qualified. 

Trump’s primary target for his poll watchers, Pennsylvania, has seen abuse of their broad voter challenge statute in the past. As recently as 2004, hundreds of students had to wait hours to vote after attorneys from the republican party challenged every young person who came to vote pursuant to Pennsylvania’s voter challenge laws.  The law in Pennsylvania allows private citizens to challenge voter status of any person seeking to vote leading up to and on election day.  The challenger doesn’t have to provide any evidence for their challenge, but in 2004 through today, the challenged party must find a friend to sign an affidavit of their voter status and residence before they are allowed to vote.

Over the last decade, states such as Virginia, Colorado, Nevada, Iowa, and New Hampshire have enhanced the burden on those challenging a voter to avoid abuse. Just this year, the constitutionality of the voter challenge laws of Texas, North Carolina, Ohio and Wisconsin have all come up before the Supreme Court—although the court has been deadlocked 4-4 or failed to yet rule on each case. Florida requires challengers to state a valid reason for the challenge in writing; North Carolina requires “affirmative evidence” that the voter is ineligible.

Pennsylvania has taken a different approach to its history with its challenge law. While the law itself has not changed since 2004, Pennsylvania currently has a law dealing with voter challenge in their legislature…to allow poll watchers to be certified to go anywhere statewide as opposed to just their own county.

While the ability to challenge the voter registration where a person is not properly registered is not independently a bad thing, the vulnerability to abuse can make the laws dangerous.  Across the nation, sweeping challenges targeting students and minorities are shockingly common. The laws have led to anecdotes such as an older white man challenging every black person who entered a polling place, requiring them all to defend their registration and sign an affidavit.  In Ohio’s 2004 election, 97% of new voters in predominately black locations faced challenges.  This is in contrast to 14% in predominantly white locations.

Abuse of these laws, and the voting system has reached the highest levels. A series of cases through the eighties and nineties, brought by the Democratic National Committee (DNC) against the Republican National Committee (RNC), has forbidden the RNC from engaging in any kind of “ballot security program” other than “normal poll watch functions” after they targeted 150,000 voters in predominantly African-American precincts in the early eighties.

The consent decree binding the RNC was enforced and extended in 2009, with the judge finding that “[v]oter intimidation presents an ongoing threat to the participation of minority individuals in the political process, and continues to pose a far greater danger to the integrity of that process than the type of voter fraud the RNC is prevented from addressing by the Decree.” With the consent decree set to expire in January 2017, the DNC has sued the RNC a little over a week ago over their alleged support of Trump’s poll watching campaign.  They seek, among other things, to extend the consent decree.

Regardless of the legality of the RNC’s potential involvement, the broad nature of most voter challenge laws makes much of what Trump’s poll watchers are likely to do come election day legal. The exception to this is when their actions cross the line from challenge to voter intimidation—as mentioned in the renewal of the consent decree against the RNC.

Federal Voter Intimidation Statute

Federal law makes it a crime in all 50 states to intimidate, threaten, coerce, or attempts to intimidate, threaten, or coerce, a person trying to vote.

The actions of Trump supporters discussed above would clearly rise to the level of criminal voter intimidation. However, a person need not go to such extremes to be guilty of voter intimidation.  Courts have found intimidation where people gather in groups around, or even within 100 feet, of voting places as such gatherings could easily deter nervous voters.  Bringing a weapon of any type to a voting place and remaining there would also likely be voter intimidation—some states specifically ban the practice.

While voter intimidation is a fact specific crime, any voter who feels intimidated should immediately report the actions against them to authorities. Poll watching and voter challenges, depending on how confrontational they are, can easily cross the line from challenge to crime.  Legal threat (including threats of deportation) and economic threat both count as intimidation.  In many states, such as Ohio, misleading a person as to voting information is also a crime.

Trump’s poll watchers are acting in a way that flirts with criminal intimidation. Know your rights this election day; don’t allow poll watchers to criminally intimidate you.

IRS Audits Colorado Marijuana Companies

State legalization of both medicinal and recreational marijuana has created tension between states and the federal government. Marijuana remains an illegal substance under federal law and state-legalized marijuana businesses are encountering problems with federal banking regulations and aggressive IRS audits.

Are IRS Audits of Legalized Marijuana Businesses a Violation of Federalism?

Proponents of marijuana legalization argue that IRS audits are targeting the marijuana industry and are an abuse of power in violation of federalism principles. Federalism is the balance of power between federal and state governments. The Founding Fathers enumerated certain powers for the federal government in the Constitution, but also included the 10th Amendment to reserve unenumerated powers for the states. The theory was that states should govern themselves without interference from the federal government and the federal government should only regulate areas that states could not, such as foreign affairs and interstate commerce.

IRS audits targeting marijuana businesses could be an abuse of federal power because they interfere with an industry Colorado has legalized. Because of federal banking regulations, many banks refuse to work with marijuana businesses making it difficult for growers and retailers to open bank accounts. Marijuana 2Since it is difficult for marijuana businesses to open accounts, most operate as cash businesses. Although the IRS has not admitted it is targeting the industry, cash-operated businesses are vulnerable to audits. Moreover, at least 30 marijuana companies in Colorado are currently being audited for the 2013 and 2014 tax years.

The Constitution grants the federal government broad powers to tax, but it is also a widely accepted principal that the federal government has the power to regulate banks under its enumerated power to regulate interstate commerce. Thus, marijuana businesses would have a hard time challenging these banking regulations and IRS practices.

Tax Compliance for Marijuana Businesses

Until the federal government amends banking regulations, marijuana businesses will continue to run a high risk of IRS audits. Thus, it is imperative that marijuana businesses comply with federal tax laws.

In general, profits from illegal activities are considered taxable income under federal tax law. The federal government taxes state-legalized marijuana, even though it is still an illegal substance under the Controlled Substances Act. It appears that the current IRS audits of Colorado marijuana businesses are related to compliance with section 280E of the Internal Revenue Code and Form 8300. Accordingly, marijuana businesses should have a basic understanding of section 280E and Form 8300.

Since marijuana is an illegal substance under federal law, business deductions are disallowed under section 280E. There is one exception to this rule. Marijuana businesses can deduct the cost of goods sold. For instance, a dispensary can deduct what it paid for marijuana products purchased from a grower. However, most business expenses, such as employee salaries, advertising costs, or rents, are not deductible.

Filing Form 8300 is also required for many marijuana businesses, since most deal with large amounts of cash. Form 8300 is a document that must be filed if the business has cash payments over $10,000.

What Should Marijuana Companies Do in Response to an Audit?

Marijuana businesses, and any business for that matter, can make the audit process less stressful by adhering to the following recommendations:

  1. Organize Business Records: Taxpayers subject to audits should review returns for the years subject to audit to ensure they have documentation for their claimed deductions i.e. credit cards statements and receipts.
  2. Hire a Tax Professional: Businesses are advised to hire a tax professional to ensure responses to IRS inquiries are timely and the appropriate documents are sent to the IRS.
  3. Understand the Law: Is it also important for taxpayers to know their rights during audits. For instance, taxpayers generally have 30 days to file an appeal if the taxpayer disagrees with the audit decision.

Assuming the business complied with federal tax laws, an audit is usually nothing more than a mere inconvenience. But, if the IRS discovers the taxpayer has not complied with tax laws, the taxpayer may be subject to fines for civil audits and prison time in the case of criminal audits. Since it appears that the marijuana industry is a target for audits, it is essential they comply with federal tax laws.

Police Shootings: A Tough Job and Misconduct

It can scarcely be questioned that police officers have a very difficult job that exposes them to far more danger than most any other job. At the same time, there are many everyday Americans who feel unsafe around police officers. It is doubtless that police misconduct does occur, but there are many incidents where it is not so clear whether misconduct has taken place. In the past few months, many such events have taken place, stoking tempers in both law enforcement and civil rights groups. Is the outrage warranted? Has there been police misconduct? Let’s look at two recent incidents.

“It Looks Like a Firearm That Could Kill You”

One such incident took place in Columbus, Ohio. The situation was as follows per current reports; an investigation is ongoing.

On September 14, 2016, the Columbus Police Department responded to a report of an armed robbery. A short time after speaking with the victim of the robbery, officers identified three individuals who matched the description given by the victim. Two of those individuals decided to run when ordered to halt by the officers; one of them was Tyre King. During the pursuit, King pulled what looked like a gun from his person. Police 2

At a snap decision, King was shot and killed by Officer Bryan Mason of the Columbus Police Department. Investigation at the scene later found King did have a gun, but it was only a BB gun. However, the BB gun was a very close replica to a common pistol. Police commented at a press release after the incident “it looks like a firearm that could kill you.”King’s companion, Demetrius Braxton, told police that he and King had performed the robbery that was reported. Officer Mason is currently performing desk duties while an official investigation takes place.

The outcome of the incident is, without a doubt, tragic. However, it is another question as to whether Office Mason ought to be disciplined. Under the current reports of the facts, King was reaching for a realistic looking firearm at the time he was shot by Officer Mason. If this was to happen to any person in the US, one might consider it self-defense. One wouldn’t expect that person to accept being shot at. In short, one might accept a person defending themselves in kind. However, one might also assert that Officer Mason could have tased or restrained King instead of shooting him.

Currently, insufficient facts are available as to whether either of these options would have been possible. On balance, under the current reports of the situation, it would be reasonable to not discipline Officer Mason as his actions appear to be legitimate self-defense.

“That Looks Like a Bad Dude”

Another such incident took place in Tulsa, Oklahoma. The situation was as follows per current reports; a lawsuit is ongoing.

On September 16, 2016, Tulsa police received two reports of an abandoned vehicle in the middle of a road blocking traffic. Upon arrival at the scene, Officer Betty Shelby found Terence Crutcher with the vehicle. Upon engaging Crutcher, Officer Shelby noted many indicators that Crutcher was under the influence of drugs or alcohol. Officer Shelby ordered Crutcher to put his hands up and Crutcher complied. Crutcher began to wander back and forth between the abandoned vehicle and Officer Shelby’s police cruiser.

Officer Shelby claims that Crutcher refused to comply with commands given at the scene. At this point, additional officers arrived as did a police helicopter. Crutcher, hands still in the air, walked towards the abandoned vehicle and faced the vehicle. At this point, one of the officers in the police helicopter commented “That looks like a bad dude,” referring to Crutcher. There is a sudden flurry of movement from Officer Shelby and three backup officers. First, one of the backup officers tased Crutcher then a female voice over police radio yells “shots fired!” Officer Shelby had shot Crutcher who fell to the ground and died. Officer Shelby was later placed on administrative leave then charged with manslaughter.

Again, this was doubtlessly a tragic event, but did Officer Shelby deserve the manslaughter charges brought against her? Unfortunately for Officer Shelby, there’s no evidence to support a claim of self-defense. No weapons were found at the scene, nor were any found in Crutcher’s car. Current reports of the events do indicate Crutcher was acting strangely throughout the encounter. However, the mere fact that someone acts strangely should not be sufficient to use deadly force. In fact, according to the video evidence, Crutcher had his hands up through most of the encounter.

Officer Shelby also asserts that Crutcher did not comply with her orders. Even if this were true, which is uncertain at this point, this doesn’t seem sufficient to justify deadly force. Indeed, when backup arrived, the backup officer elected to use a taser to restrain Crutcher. Overall, it seems clear that deadly force was not justified in this situation and therefore it seems fair to charge Officer Shelby.

The Bigger Picture

These incidents were tragic. However, in the bigger picture, we must keep perspective. Law enforcement officers have a difficult job. A dangerous job that puts officers at risk of their life every day. To keep perspective though we must also accept that the authority we grant to law enforcement demands oversight and reasonability. Misconduct must be investigated and, when justified, officers must be disciplined.