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Professional Troublemaker ®

 Jonathan Corbett, Civil Rights Attorney

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Legal Rants

Temporary Restraining Order Requested Against New York for Music Ban

I shared last week a new lawsuit filed by me on behalf of the food service industry in New York, challenging the state’s ban on advertising music or charging admission to enter any establishment in New York licensed to sell alcohol. As a small update, we filed a motion for a temporary restraining order against the state today…

As continued speculation, perhaps the government believes that people who attend events with advertised music will somehow behave differently at these events. But this fails for two reasons. First, no matter whether there is music or not, the rules require all establishments to keep their guests seated, at tables, and order a meal. Dancing – or any other conduct likely to occur in the presence of music that requires leaving one’s seat – is prohibited. A person sitting a table, eating a meal, and enjoying a live music performance is no more likely to spread coronavirus than one doing the same in silence. Second, whether there is advertising or not, music is still permitted. The advertising of the same does not change a thing about the behavior of the guests. It also would not limit third parties 3 from collecting a list of establishments that feature music and distributing it on social media. This would make the rule futile, and it would be naïve to think that this is not already happening. A futile rule is, obviously, not “reasonably necessary.”

I expect there will likely be a hearing scheduled within a matter of days.  The case has been assigned to U.S. District Judge Gregory H. Woods, an Obama appointee and quite capable jurist.

NYIVA v. Bradley – Motion for Temporary Restraining Order & Preliminary Injunction (.pdf)

New York Sued for Banning Restaurants from Advertising Music

NYIVA v. NY SLALast week, the New York State Liquor Authority announced a rule that food service establishments licensed to sell alcohol could no longer advertise any music offered during the dining experience, in a rule absurd enough to surely have been drafted by Governor Andrew Cuomo himself. This rule, which also bans tickets or admission charges to food service establishments, is a clear violation of the First Amendment rights of the state’s liquor licensees.

By and large, the food service industry has done its best to comply with each and every rule and request of the Governor and his agencies in order to provide a safe environment for the public. However, the industry has received no financial support from the state, and the cost of complying with rules that change on a near daily basis is destroying the industry. It is predicted that 1 in 3 food service establishments in the state will never reopen as a result. When all establishments are requiring seated table service, limited capacities, and social distancing, announcing the music selection or having a cover charge simply does not contribute to the spread of coronavirus.

I’m pleased to note that I now represent the New York Independent Venue Association and 9 of its members across the state in taking the New York State Liquor Authority to court over the matter. Case No. 20-CV-6870 in the United States District Court for the Southern District of New York.

NYIVA v. Bradley – Complaint (.pdf)

Attorneys Beware: Check Scam from Fake Clients Overseas

A few weeks ago, I received an e-mail from a “prospective client” in the U.K. requesting help with a straight-forward contract matter.  Contract litigation isn’t exactly why I went to law school, but something I do help out with from time to time…

Initial Scam E-mail
Seems like a good start…

(Identifying information redacted because I’m fairly sure the scammer stole the identity of an innocent person and company.)

We discuss more — both phone and e-mail — and he sends me a signed contract and invoices indicating that he was owed $150K for architecture services: CAD drawings of a residential home. No problem, I’m a California lawyer, you want to sue a California client for breach of contract, you have a signed writing, and if they can afford $150K just for architecture on their residence, they probably have some cash to collect.  Good deal.

Fake Architecture Contract
Fake architecture contract… seems legit, no?

I send over a retainer agreement and he promptly returns it signed.  Now all I need is the retainer deposit and — oh, wait, an e-mail indicating that the other side wants to settle the matter and I should hold on!  Several days later, I receive a cashier’s check and a note from my client saying that they resolved it and he just needs me to deposit the check, take my fees out of it, and send me the money.

Fake Cashier's Check
If it says “cashier’s check,” it must be good! Right?

For the uninitiated, this is a variation of a classic check scam: someone purchases any kind of goods or services and overpays you in some way “by accident.”  But, no problem, just deposit the check, send them what they ordered, and whatever the extra is, just wire it back to them!  Of course, the check is a forgery and because American banks are still in many ways stuck in the 20th century, it often takes them several days to let you know, “hey asshole, you got robbed!”  In the meantime, you’ve sent their order and a whole bunch of cash that you now owe the bank, and they’ve disappeared never to be seen again.

This would have cost my clients nearly $100,000 (as the check would be deposited into, and the soon-to-be-reversed proceeds wired from, my client trust account), which I’m quite sure the State Bar would expect me to repay out of my own funds.  Your insurance may not cover this (the banks sure won’t — it was you who initiated the wire, right?). Spotting the scam early, I insisted that the “client” pay the retainer deposit first rather than take it out of the cashier’s check, which after a bit of arguing caused the “client” to take his business elsewhere.

Be wise, business owners… there are people trying to take advantage of you everywhere and they don’t care if you’re ruined as a result.  In the law world, having a solid retainer agreement, requiring a deposit before beginning any legal services, and being suspicious of irrational client requests — like being “paid” to move $100K for an agreement I didn’t even negotiate — saves the day.  And of course, make sure any check actually clears (not just becomes temporarily available, but call the bank and confirm they have the funds from the sender’s bank) before wiring money away.

If Rent Is Difficult This Month, Don’t Pay It — And Don’t Stress

Cheesecake Factory No Rent Notice
Even large businesses are pausing rent payments

Americans have already filed 3.3 million unemployment claims — a number which may grow many times over in the coming weeks — as (predominantly) small businesses across the country have been ordered to close to slow the spread of coronavirus.  This, combined with what I’m seeing on social media, leads me to believe that there will be millions of Americans who are unable to pay their rent in a few days.

Right now, many (probably, most) courts nationwide are closed to all non-emergency matters. For example, in New York, state courts have been ordered closed “until further order” and attorneys are barred even from e-filing documents. California has done away with in-person hearings and the Chief Justice of the state supreme court has given all lower courts permission to close (an invitation which most courts have accepted). Needless to say, breach of contract and eviction proceedings are not considered emergency matters, and even when the courts re-open, the flood of cases will cause delays that I expect will add months to non-emergency matters.

While it’s hard to generalize for every circumstance and every state, if you can’t pay your rent right now, don’t stress. If you think paying your rent now might mean not being able to afford food later, don’t pay your rent. And still don’t stress. You are in a unique position to negotiate with your landlord because: 1) your landlord can’t immediately throw you out since the courts in most jurisdictions are either closed or backlogged for months, and 2) if landlords throw out everyone who didn’t pay April rent, there would be more vacancies than demand, causing landlords to lose massively on the value of their property — and they know this, so they will avoid it by negotiating your continued tenancy. For once, the free market is working in your favor.

Instead, do save what you can (preferably in a separate bank account) so that you have money to negotiate with. In June, saying, “I’ll pay you half what I owe you and starting July I’ll go back to paying full price if you’ll forgive the rest,” gives you a lot more leverage than, “I’ve got nothing for you, but trust me, I’ll start paying soon.”

Finally, while your state may be talking about some kind of rent bail-out bill, please understand that while this feels like the right thing to do, it might not be possible. Such a bill could demand that landlords eat the loss, but there are constitutional concerns with that.  In particular, the Constitution says, “No State shall enter into any … Law impairing the Obligation of Contracts.”  U.S. Const., Art. I, § X, Cl. 1 (the “contracts clause”). This problem could be solved by the state eating the loss, but can your state afford to pay everyone’s rent for a few months? Suffice to say, I don’t recommend counting on a bail-out to take care of all of your rent bills.

Be well, take care of yourself first, take care of your landlord later.

Edit – A commenter, Roland, brings up a good point: Is it better to negotiate with your landlord now? The answer depends on your landlord. If your apartment is owned by an individual or small group that you know and think would be willing to listen, that may be a viable strategy. But, larger companies often tend not to negotiate until upper management decides negotiation is in their interest. For example, if you’re current on your credit card and call your lender and say, “Hey, can we settle this account for 50 cents on the dollar?” they will assuredly tell you no, but if you do the same after 6 months of non-payment, you may get a different answer.


The above is not legal advice, which can only be given by an attorney who reviews your specific situation.

Trump Threatens Whistleblower on Twitter

I try not to cover purely political stories on this blog, but I do believe we’re watching history unfold here.  Twenty minutes ago, the President posted this to his Twitter:

Trump Threatens Whistleblower

If you’re not following, the context is this: when the President phones a foreign leader, there are usually many others on the call to document and make permanent record of the interaction, as well as to inform policy decisions in the State Department and CIA.  In July, Trump called the president of Ukraine and asked him to investigate presidential candidate Joe Biden and his son.  Some of the people on the call understood the implication to be that Trump wanted Ukraine to dig up dirt on his competition for the 2020 election.  The U.S. then delayed foreign aid that Congress had earmarked for the Ukraine.  A CIA employee who learned of the call through his work with the people on the call created a whistleblower report and submitted it to the Intelligence Community Inspector General.

None of the above is disputed.  It is not fake news.  Trump’s position is not that the above did not happen, but that his request to Ukraine was simply an ask to deal with domestic corruption issues, and that it was not tied to foreign aid in any “quid pro quo” arrangement.

Notwithstanding the fact that it was the literal job of the conversation listeners to listen to his conversation and report details to others in intelligence and foreign policy positions, Trump has now called one or more of these listeners a “spy.”  In the tweet above, he said they should face “Big Consequences.”  In a conversation a few days ago, he noted that we should go back to treating spies like “we used to do,” implying that he wants whomever outed him here to be executed.

One who reports information to their own government does not qualify as a “spy” under any meaningful definition of the word.  And, whistleblowers, in fact, are protected by federal law: 5 U.S.C. § 2302(b) protects the jobs of any federal employees who disclose what they think are illegal activities by other federal employees, so long as they do so through the proper channels (as this whistleblower indisputably did).  Even if the whistleblower was mistaken about Trump’s intent, he did nothing illegal by reporting what he had heard to the IC IG.

What is not protected by federal law are death threats.  Especially when directed at whistleblowers.  Especially when directed at someone scheduled to testify before Congress.  The tweet above is probably sufficient for a felony charge, and by itself, this tweet, from 20 minutes ago, should result in the President’s impeachment.  No matter whether Trump did or did not intend a quid pro quo arrangement, he is not allowed to threaten U.S. citizens for disagreeing with him and asking higher-ups in the government to investigate.  If you are a Trump supporter, now is the time to stand up and say that you diverge from the President on this one — if you enjoy having a country ruled by law rather than a dictator.

Is Pushing Someone on Train Tracks “Attempted Murder?”

I have to admit: when real life presents hypotheticals that are academically interesting for lawyers, I get a little bit excited.  Last year, a man named Kimani Stephenson made one for the law books when he pushed a woman onto New York City subway tracks.  The victim described it as follows:

“This guy, he came up behind me and he grabbed one of my boobs with one hand, and he grabbed my vagina. I told him to fuck off, and he pushed me onto the train tracks,” she recalled.

“There was no train coming, thank God,” Currie said. “I keep playing the scenario over in my head. There weren’t any MTA police on that particular track, so I don’t know what I would have done if there hadn’t been bystanders.”

Clearly, the defendant is guilty of assault and other crimes, but is he guilty of attempted murder?

At common law (the law we inherited from the British), attempted murder requires 2 things: 1) taking an action towards the death of someone (a “substantial step”), and 2) the intent that your actions result in the death of that person.  That second part is called a “specific intent” requirement.  That is, it’s not enough that you did what you did on purpose, but rather that you must, in your own mind, intend a specific result.  Modern New York law on the matter doesn’t substantially deviate from the common-law view.

The first element is not very interesting: pushing someone on a train track is undoubtedly a substantial step towards murder.  The second element is where the fun is.  Like any good law school essay question, you can argue that specific intent both ways.  You can argue that one doesn’t push someone onto train tracks unless they want them to die.  However, if your law school essay doesn’t also pick out the words, “There was no train coming,” you lost major points on this question.  The defense will argue that pushing someone onto an empty train track is unlikely to cause death and shows that the defendant didn’t actually intend that the victim die from the actions.

But New Yorkers love throwing the book at the bad guy, and so when Manhattan ADA Maxine Rosenthal decided to press attempted murder charges, the local Reddit community cheered:

Reddit Does Not Like Kimani

…and I was mocked for being a soft on crime or ignorant on the law, including by several “Internet lawyers,” for trying to explain the above…

too_soft

Unfortunately, no charity will be getting a $500 donation, as a Manhattan jury acquitted Mr. Stephenson of attempted murder last week:

“We felt he acted in a fit of rage and he wasn’t thinking enough to have premeditated anything,” said juror Catherine Wald, 64.

“There was no argument, proof or any evidence he had intent in the moment to kill her even though we all got convinced he was the perpetrator,” added foreman Dmytro Zhuravtsky, 44, who works in quantitative research at a large financial institution.

Fear not: the perpetrator still faces 25 years in prison on the first degree assault charge (which, if I’m reading correctly, comes with a 5 year mandatory minimum).  But, say it with me: it’s not attempted murder unless the defendant actually intended that the victim die.  On the situation presented here, I don’t know how the ADA intended to prove the specific intent beyond a reasonable doubt.  The charge should not have been brought.

The ADA and defense counsel were contacted for comment but have not replied as of the publication of this story.

Nassar Judge Wishes She Could Sentence Defendant To Be Raped In Prison

Judge Rosemarie AquilinaLarry Nassar, the infamous USA Gymnastics doctor recently convicted of sexual assault upon children and possession of child pornography (some of which he made himself), is, to say the least, not a likable guy.  Considering that he is now 54 years old and was sentenced to 60 years on the federal child pornography charge last month, he already had an effective life sentence before today’s sentencing on the state sex assault charges.

At today’s sentencing, Michigan Circuit Court Judge Rosemarie Aquilina decided on a sentence of 40 to 175 years for the sexual assault charges.  Considering he plead guilty to assaulting 10 children and nearly 200 others have accused him of the same, that sentence isn’t at all surprising.  What did surprise me, however, were the comments coming from Judge Aquilina:

“It is my honor to sentence you because, sir, you do not deserve to walk outside of a prison ever again. Anywhere you walk, destruction would occur to those most vulnerable. I just signed your death warrant.”

Perhaps it’s just because I’m preparing for a law school ethics exam, but this immediately suggested judicial bias to me.  A judge has a duty to recuse his or herself in the event of either personal bias or the appearance of the same.  By itself, this probably would not be enough to prove judicial misconduct, but was enough for me to read through coverage of earlier proceedings, where Judge Aquilina stated as follows:

“Our Constitution does not allow for cruel and unusual punishment. If it did, I have to say, I might allow what he did to all of these beautiful souls, these young women in their childhood, I would allow some or many people to do to him what he did to others.”

Did she seriously just say that, if not restrained by the Constitution, she would hand out sentences that ordered the sexual assault of a convict?  This makes me question not just her personal bias but her fitness to be a judge.  Rape is not acceptable in our society, it’s not “funny” or “cool” or “tough” to wish it on someone, and that doesn’t change if it takes place in a prison or if the victim is an evil person.

If our goal is to dismantle the “rape culture,” Judge Aquilina’s comments are not helpful in moving us forward.  Mr. Nassar’s victims deserved justice, and in order to best deliver that justice and ensure no possibility of appeal for judicial misconduct, comments like the above should be omitted from the courtroom.

Trump Nominates Man with Less Courtroom Experience than Me for U.S. District Judge

Meet Matthew Spencer Petersen:

Mr. Petersen heads the Federal Election Commission’s legal team and has some experience with election law.  But in the video above, you’ll see that under questioning, he revealed that:

  1. He’s never tried a case to completion in either state or federal court
  2. He’s never even argued a motion in either state or federal court
  3. He doesn’t even know what certain motions are
  4. He hasn’t read the Federal Rules of Evidence since law school
  5. He hasn’t read the Federal Rules of Civil Procedure since… well, he didn’t actually even answer that one

President Trump submitted this man to the Senate for confirmation as a United States District Judge, a lifetime appointment to an extraordinarily powerful position.  A U.S. District Judge has the authority to issue restraining orders against the federal government, decide death penalty cases, and safeguard (or disregard) constitutional rights.

Yet the man that Trump wants to have the job has never been a judge.  He’s almost never been in a courtroom.  This man is utterly unqualified, and to make the point, this year I — as a law student — can answer all of those questions more favorably than he can.  I’m in no way qualified to be a U.S. District Judge, but this appointment is merely a joke that’s not funny.

If you didn’t hear about Mr. Petersen, perhaps it’s because you watch Fox News, which reported the hearing like this:

They entirely left off the part about the unqualified man being destroyed during a confirmation hearing, presenting the day as an epic win for Trump because the Senate confirmed 2 out of 5 of the President’s nominees.  Now that is fake news.

No, Sex Offenders Shouldn’t Get Marked Passports

The media has reported that the U.S. State Department has begun revoking the passports of certain sex offenders and requiring them to get new passports that will now conspicuously state:

The bearer was convicted of a sex offense against a minor, and is a covered sex offender pursuant to 22 United States Code Section 212b(c)(l).

IMG_20171106_230520Definitely not the endorsement I’d prefer to have on my passport.  Diving a bit deeper into the law, the change seems mandated by Congress in a fairly bi-partisan bill in 2016, quickly signed by President Obama.  It applies to all “covered sex offenders,” which in this case means you’re been “convicted of a sex offense against a minor” in any state and that you’re still subject to any state’s sex offender list registration requirement.

There are many reasons why this is a dumb idea (none of which are that sex offenders don’t deserve to be punished).  Allow me to propound a few:

1. Our Current Sex Offender List System is Broken

I think we can all agree that once a sex offender has served his or her time in prison, our #1 goal should be to ensure that they do not re-offend upon release.  So what do we do?  We make it so that they can’t ever get a decent job, we make it so that they often cannot find affordable housing and live or even live with their families, we stigmatize them wherever they go, and if they slip up with often onerous registration requirements, it’s back to jail.  All by putting them on “the list.”

Miami, for example, bans sex offenders from being within 2,500 feet of where children “congregate.”  That’s half a mile.  How many apartments in your community are not within half a mile of a school or a park?  The result: dozens of sex offenders live under a bridge, because there is simply not enough housing outside of 2,500 feet to house them all.

To many, the above yields a response of, “Good, they deserve it.”  But, lack of empathy notwithstanding, the problem is that someone with a job and a stable home is going to be far less likely to re-offend than someone who’s forced to live on the streets with a bunch of other sex offenders.  You might not like the idea of helping a rapist get back in the workforce, but failing to do so increase the risk of a new victim.

Until we reform our current sex offender list systems, I’d oppose any attempt to expand them.

2. The Government Has Lied About Recidivism

“[T]he average member of the general public believes that 75 percent of sex offenders will reoffend,” according to a study on the matter.  Indeed, the U.S. Supreme Court itself has quoted “80%” as being the recidivism rate.  McKune v. Lile, 536 U.S. 24, 33 (2002).

But as the New York Times recently reported:

A few years ago, Ira Ellman, a legal scholar affiliated with the Center for the Study of Law and Society at the University of California, Berkeley, and the researcher Tara Ellman set out to find the source of that 80 percent figure, and what he found shocked him. As it turns out, the court found that number in a brief signed by Solicitor General Ted Olson. The brief cited a Department of Justice manual, which in turn offered only one source for the 80 percent assertion: a Psychology Today article published in 1986.

Needless to say, the author of the Psychology Today article has recanted his number, and that most actual scientific studies put the actual 3-year recidivism rate at 3.5%According to the Department of Justice, “Within 5 years of release, 82.1% of property offenders were arrested for a new crime, compared to 76.9% of drug offenders, 73.6% of public order offenders, and 71.3% of violent offenders.”

So, no, these lists are not justified by some special risk of recidivism inherent to this particular type of crime.  All criminals released from prison have a risk of a repeat, but the number for sex offenders simply is not that high.

3. It’s a Lot More Than Child Molesters

Let’s say you’re a mid-20s guy and you head out to a bar in Venice Beach, CA.  You meet a beautiful girl inside and end up taking her home with you.  Just to be extra careful, you check her ID, which indicates that she’s 21.  But after you have sex, you learn she’s not — she’s actually 17.

If you get caught, even though you met her in a bar and you checked her ID, you’re going to jail and you’re going to be on the sex offender list, and now you’re getting your passport revoked so that the government can add a scarlet letter to the new one.  Even if you went through heroic efforts to ensure that she was of legal age, mistake is no defense in California (as in most states), and you’re… well… fucked, so to speak.

In some states, public urination is a sex offense.  If you do it near a school, or a child happens to see you, does that qualify you for the new visa marking?  It very well may.  Same with the teenage couple where one is a little over the age of consent and one a little under.  Same with the teen convicted of possessing child pornography of his or herself.

Frankly, our sex offense laws are inconsistent and often unjust (and that goes both ways — there are also many who should be punished that are not).  Until the laws are fixed, we should not be adding to the problem with new punishments also to be implemented unjustly.

4. So Why Not Murderers?  Drug Traffickers?  Mafia Members?

If we’re going to release dangerous people from prison — and why we apparently do that is beyond the scope of this post — why treat a sex offender worse than a murderer?  Why not add a label for people who smuggle drugs when they travel (something actually relevant at the border)?  What about international mobsters?

Because this is just like the TSA — it’s security theater.  These are measures that make people feel good, or at least feel like Congress is doing something, even when they’re not.    The U.S. already sends sex offender information to many foreign countries as our citizens depart for them.  This law just allows our legislators to go home to their constituents and pretend that they did something to protect the children.

5. These People Have Already Served Their Time

I think there should be significant prison sentences for sex offenders — enough to strongly deter them and others from committing the crime and to rehabilitate the offender as much as possible.

But once a person has re-paid their debt to society, it’s simply unfair to add a new penalty.  So-called “ex post facto” laws are forbidden by the Constitution, but we get around that by pretending that these registration requirements are not criminal laws but rather public safety laws.  That distinction is certainly not comforting to those who can’t get jobs or find apartments as a result.

Again, many perhaps don’t care, or will frame this as being “sympathetic to sex offenders.”  But as a civil libertarian, I know that the easiest way for our rights to be eroded is to blame terrorism or pedophiles.  Nearly every privacy grab has been on one of those two bases, from secret FISA spying to warrantless searches of digital devices at the border.  Let’s not put up with infringements of the rights of sex offenders just because we don’t like them, because once sex offenders lose those rights, the rest of us do too.

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