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Professional Troublemaker ®

 Jonathan Corbett, Civil Rights Attorney

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Legal Rants

Texas Cops Rape Woman On Side of Road, Again, 18 Months After Paying $185,000 Settlement

Texas Cops Rape Woman On Side of RoadThere is a competition out there for worst policing in this country. New York has random searches without cause (cause… you know, the thing required by the 4th Amendment) known as “stop-and-frisk” (now replaced by sitting around and doing nothing in protest of the mayor refusing to grant them permission to brutalize protesters and other minorities). The heartland and midwest are the epicenter of random acts of civil forfeiture — cops confiscating cash from motorists because it “must be” drug money. Florida has a problem with law enforcement killing those in custody, refusing to investigate, and getting testy when someone decides that outside investigations are necessary.

But then there’s Texas, where police assholery is Texas-sized.

About a year and a half ago, a story broke where two women were “cavity searched” on the side of the road on suspicion of having drugs. That suspicion was based on no actual evidence, of course — just “a hunch” by the officers, which proved to be mistaken. A female police officer literally bent these women over on the side of the road and placed her fingers inside of these women’s vaginas (and no, she didn’t even have courtesy to change gloves between the two searches). The state settled a lawsuit for $185,000, and a grand jury indicted the female officer. She eventually plead guilty and was sentenced to a slap on the wrist.

Did Texas learn their lesson? Of course not, they just did it again.

Guys Sue Red Bull Because It Didn’t “Give Them Wings”

One of the things I hate, and pretty much every non-lawyer hates, about the legal system is that at the end of the day, the only real winners are the lawyers, who bill $250 – $1,000+ per hour to fight over what is often an absurd battle. Take, for example, Careathers v. Red Bull:

Benjamin Careathers, a regular consumer of the fizzy drink, sued the company for false advertising, arguing that after 10 years drinking Red Bull he neither had wings nor any enhanced athletic or intellectual performance.

Source: The Telegraph

Now, I love Red Bull. I drink it all the time, and I follow their marketing campaigns because they are brilliant, so I’m interested as a businessman, and because they’re fun, so I’m interested as a consumer. Red Bull sponsors events all over the world, including their very own “Flugtag” event, and they have their catchy, “Red Bull Gives You Wings” tag line. But, as a consumer, I never expected to be “given wings,” nor did I believe any of the other stuff the lawsuit claims, such as their assertion that Red Bull misled consumers into thinking that Red Bull was scientifically proven to be superior to its competition. No, I buy Red Bull because I like it, not because I am delusional.

The case was certified as a class action, with the class being every Red Bull consumer since 2002. Red Bull has decided to settle this case rather than fight (by giving every customer $10 of free Red Bull), which brings us to the real reason for this suit, of course: the lawyers are asking for a $4.75 million dollar fee. I’m disappointed that Red Bull didn’t fight this battle, but totally understand that it’s a “cheap” (comparatively) way to make them go away and almost acts as a promo in itself as people rush to get their free 4-pack.

Luckily, as a member of the settlement class, I get to express my disappointment to the court, and will be filing my objection to the Red Bull settlement on Monday. Will this actually change anything? Probably not on its own, but courts have been known to reduce fees when finalizing settlements on class actions, so I hope my objection will weigh on that.

Life Lesson for a Civil Rights Advocate: You Can’t Fix Everything

One of the most difficult things I’ve found about doing civil rights advocacy is this: there are so many things wrong in this country, and you can’t make time to fight them all. Once you learn that it is, in fact, possible to challenge the injustices in this world (and that many times, if you don’t challenge them, no one else does), it becomes far too tempting to just take on another issue. When Edward Snowden’s revelations about the NSA came out, for example, it took all my willpower to not write up a lawsuit. (I couldn’t resist having a little fun, and created a Web site for people to request their NSA file called My NSA Records, but no legal challenges from me.)

If one takes on too many challenges, sufficient focus to complete any of the challenges will be lost. Indeed, sufficient focus to maintain the rest of your life can become lost as well, especially if you’re working a full-time job in addition to fighting the man (if anyone would like to sponsor a full-time civil rights advocate, let me know!).

The same goes for continuing current cases when they’ve lost meaning. My case against NYPD stop-and-frisk was dismissed last month after a judge ruled that I couldn’t prove that I was dealing with actual police officers. Four men, who looked like cops, in a dark sedan that looked like an undercover cop car (complete with console electronics) identified themselves as police, detained me, searched me with neither consent nor cause, and then let me go without taking anything. I didn’t ask for a badge because I thought I’d get a face full of sidewalk and because I had no doubt that these men were real cops, but the city claims they have no record of cops being there.

It makes no sense that these men were just random troublemakers looking to pat down random people on the street, and I believe the judge made a clear error in determining that no reasonable jury could find that the NYPD was responsible for my constitutional injury. But, taking that argument to the Court of Appeals, I believe, will take my focus off of the cases that are more important to me — my work against the TSA — and in light of the fact that stop-and-frisk was recently ruled unconstitutional in another case, I’ve decided it would be a distraction with minimal benefit. The war on stop-and-frisk has, hopefully, already been won.

The people who are the best at what they do are the best because they have the sharpest focus. They know what they want and they work every day to get it. I shall continue to sharpen my focus on the issues that are really important to me.

Consumer Finance Protection Bureau: Protecting Consumers or Banks?

A bit off topic, but I just can’t resist blogging about any useless or counterproductive federal agency.

A couple weeks ago, my gym membership dues hit one of my debit cards and overdrafted one of my checking accounts (the perils of having more than one account, it seems, is that occasionally one ends up empty… but I digress…). This shocked me, since federal rules that went into effect in 2010 bar debit overdrafting and associated fees without an explicit opt-in, which there’s not a chance I would give. I called my bank and asked if they enjoyed flouting federal rules, to which they replied that these rules only apply to “one-time” transactions and my gym membership doesn’t count.

A quick review of the rules shows that they are correct that these rules apply only to “one-time” transactions, but there’s no definition of “one-time.” Debit card transactions aren’t “scheduled” with the banks or anything — merchants process them as agreed whenever they get around to it, so really, every transaction, in my opinion, is “one-time.” So where is the line drawn? If I go to a restaurant twice and use the same card, is that no longer one-time? Does it have to be on regular intervals or a specific number of instances?

The agency responsible for the rule gets the first pass at defining the ambiguous (that is, courts give “deference” to an agency as to the interpretation of their own rules, so long as that interpretation isn’t absurd). So I asked the agency responsbile for the rule: while original the rule was issued by the Federal Reserve, authority for the rule was passed on to the Consumer Finance Protection Bureau upon its creation in 2011. So I e-mailed the agency asking for their interpretation of “one-time,” and was surprised to get a fast response from an attorney for the agency who asked me to call him to discuss. I politely declined, explaining that I’d prefer it by e-mail such that I could forward a copy on to my bank if the interpretation was useful for the return of my $35 overdraft fee.

nowrittenHere’s where it gets weird (well, weirder than a government agency that’s actually responsive other than when they want your money): The CFPB attorney refused to tell me the agency’s interpretation in writing. At first I’m told that “informal” guidance can’t be given in writing, and upon asking how to get formal guidance, I was told that individuals can’t.

So if consumers can’t get informal guidance in writing or formal guidance at all, who is this “Consumer” Finance “Protection” Bureau protecting? Is this another one of those, “we’ll protect the people by protecting the financial institutions” type things? Too big to fail, too big to jail, and too big to talk about in writing (unless, of course, they request it). Naturally, they picked the wrong person to refuse — I’ll be continuing my query via Freedom of Information Act requests until I have my answer.

Stay tuned tomorrow for the start of our 30-part series, “No Surveillance State Month,” where daily for the month of June I’ll be posting ways to avoid invasion of your privacy in the digital age.

Miami: Taking Pictures? We’ll Question You.

If this blog interests you, chances are you follow other news sources that have covered attempts by police and other government officials (including, of course, TSA screeners) to crack down on citizens that use their cell phone cameras to record the activity of those government officials. Carlos Miller, a Miami-based photographer and activist, formed Photography is Not a Crime (PINAC) after being detained (now on several occasions) for an even less confrontational reason: capturing photos and video of buildings and transportation hubs. PINAC covers stories of people being denied their First Amendment rights at an astounding frequency: the front page of PINAC has 8 stories from the last 12 days alone.

Carlos’ most recent personal interaction was on Miami’s Metrorail system, where he was pushed down an escalator and arrested by security for no more than taking pictures from the platform while he waited for his train — and this wasn’t even the first time the same security company — “50 State” — arrested him for the same reason!

Being a Miami resident myself, I contacted county officials to express that I no longer felt safe on the county’s public transit as a result of the abuse of this security contracor. (I also contacted state officials to request a review of 50 State’s license to act as a security firm and the individual guards’ licenses to open carry a firearm as a security officer.) After significant back-and-forth and many ignored messages that required follow-up, the last message I received was from Eric Muntan, Chief of the Office of Safety and Security of Miami-Dade Transit:

First and foremost, MDT fully acknowledges that members of the public can take photographs in the common areas of public facilities. Areas within the public view are open to photography, as long as the activities do not present a safety concern for transit operations.

At the conclusion of its investigation of this incident, MDT took numerous administrative actions to effectively address areas which needed enhancements, to include, but not limited to, immediate refresher training for all MDT-contracted security officers regarding the proper interpretation of commercial photography and an individual’s right to photograph common areas of our facilities.

However, given the threats against mass transit systems, both domestic and abroad, and in order to protect the safety of its transit system, its customers and its employees, MDT reserves the right to question individuals taking photographic images at our stations.

However, that stance may not actually be lawful. The police have great leeway to ask questions of nearly anyone (so long as those people are not obligated to answer and are “free to go”). However, they still can’t do so in an arbitrary or capricious manner: they need a reason — however flimsy — to do so. Virtually any reason will do, except a reason that rests upon violating someone’s rights. And, if the county is admitting that it your right to take pictures (which it is), it would seem to me that they would need a reason beyond the mere taking of pictures.

It is nice that Miami is taking at least some steps (retraining, for example) to remedy the problem, but in the end, the problem won’t go away until the mindset is changed: holding a camera should not subject you to any government contact in and of itself.

DHS Purchases 2,700 Tanks for Domestic Use

http://www.thegatewaypundit.com/2013/03/obama-dhs-purchases-2700-light-armored-tanks-to-go-with-their-1-6-billion-bullet-stockpile/

If we do not start making changes now, you will see these in your neighborhood. Again, that timeframe to act is now. Please share, call your reps (much harder to ignore phone calls than e-mails), and demand change.

Update: Judge Who Jailed Teen for Disrespect Famous for Fighting on Floor of Fla. Legislature

[Update to the Update: The Miami-Herald Runs This Story]

[Update to the Update to the Update: Penelope has been freed after apologizing to the court.]

It turns out that the judge from my previous post who deemed it proper to deny a teen girl an attorney for her arraignment, deny her an attorney for future proceedings (“sell your jewelry!”), raise her bond because she had an attitude, and then jail her for 30 days after she lost it and gave him the middle finger, became famous for his lack of ability to control his own temper. Back 15 years ago, Judge Jorge Rodriguez-Chomat made headlines for attacking a fellow legislator on the floor of the Florida House of Representatives. He, of course, was not sent to jail to “learn his lesson.”

It’s interesting that Jorge, who seems to be of Latin descent and speaks with a heavy accent despite being in the U.S. most of his life, seems to have a thing against others of Latin descent. The man he attacked on the House floor was also Latin, and he only flipped out on the teen girl — a Latina — in his court after she said “adios.” This guy seems to have some issues.

Florida Judge Denies Public Defender Because 18-Year-Old Defendant “Could Sell Her Jewelry” To Afford Lawyer

This video of Penelope Soto’s arraignment in front of Miami Circuit Judge Jorge Rodriguez-Chomat for possession of Xanax without a prescription went viral because of her attitude problem and telling the judge to “fuck himself” while giving him the middle finger…

 
But what’s actually incredible about this video is this:

  1. The judge denied her a public defender on the premise that she “could sell her jewelry” in order to pay for a lawyer, despite admitting to income of only $200/week (a little more than $10,000 per year, and below the poverty line, even in Florida).  It isn’t clear exactly how much jewelry she has, but a lawyer may cost per hour more than she makes in a week.  She is clearly unable to afford an attorney, and is entitled to have one appointed to her.
  2. The judge doubled her bail based on her saying, “Adios!”  I’m not really sure why he took offense to this moreso than her general laughing throughout the proceeding, but it doesn’t matter.  A judge is not permitted to set bail based on the defendant’s attitude, but rather only on the bases of ensuring that she returns and preventing harm to the public.
  3. The girl had no attorney for her arraignment.  Why not?  None of this “attitude problem,” which is likely because she was nervous and without her Xanax (a popular anti-anxiety drug), would have been an issue if she had an attorney speaking for her.  The State and County need to step it up here.  Because they wouldn’t pay a public defender something like $20 for the 15 minutes of his salaried time, the taxpayers will now spend closer to $1,000 housing this woman for 30 days.
  4. Beyond the judicial misconduct, WTF is wrong with our war on drugs?  Felony drug charges, $5,000 bond, and a night in jail for possession of medicine?!  They didn’t accuse this woman of dealing — just of mere possession.  Meanwhile, rich people can pay doctors and get all of the pills they want, but this 18 year old, who would be forced to sell her jewelry to pay for a lawyer, can’t, and therefore she pays the price.

This whole system is screwed, and I truly don’t blame this girl for being so nervous that she was unable to control herself.

OT: Credit Cards, Interest Rates, and Unconscionable Contract Terms of @Citi

fuck youProbably few of you know that before I went after abusive government agencies, I used to go after abusive financial companies — my first federal lawsuit was against a collection agency who called non-stop about a bill that I didn’t owe. It’s actually shockingly simple to sue a collection agency since there are pages upon pages of rules they have to follow, and it’s way cheaper for them to deal with the occasional lawsuit than to follow the rules.

I had a credit card with Citi that I was paying off over time until a few months ago, when my automatic payment didn’t go through. No problem, just send another payment, maybe pay a $30 late fee, whatever, right? Of course not. Because of the missed payment, Citi tells me that I now owe them a “penalty APR” of 29.99%, which can’t be reduced even after making up the payment.

Let me put this in perspective for you. Let’s say you owe $5,000. A typical credit card company will ask you to pay, give or take, 3% of your balance or $25, whichever is greater, per month. This would result in a monthly payment of $150. However, in that month, you will have accrued $124.96 in interest, meaning that after paying your $150, your balance owed will go down by only $25.04. Your debt will take you over 6 years to pay and over those 6 years you’ll have paid about $5,800 in interest — more than the amount you borrowed!

This is what is referred to as an “unconscionable contract term” — a part of a contract that is so absurd that no judge will enforce it. And, in fact, some judges have chosen not to enfoce Citi’s usurious interest rates. This common-law concept comes paired with the fact that contracts are supposed to represent a negotiation between the two parties that are signing the contract — but fat chance you can negotiate your credit card terms of service, and so judges therefore must be ever vigilant against the large companies taking advantage of the little guys.

So when Citi collection reps call me and tell me, “Well you agreed to the penalty APR when you signed your cardmember agreement, didn’t you?” I explain the unenforcability of this agreement to them until they get frustrated with me and hang up. I’ve offered them the money in exchange for returning my interest rate back to where it belongs, and they’ve declined. So now I offer them this: come after me for the debt in court, and let’s see what kind of precident we can create regarding unconscionable contract terms and credit card interest rates.

I won’t be taken advantage of by a bank, and I urge you not to be taken advantage of as well. The best way is to never borrow money, but for must of us it’s too late for that, so the next best is to know your rights and refuse to bend over.

[Author Note: Trying something new with the title here. Often times, people tweet my blog entries, and I’m hoping by putting the @Citi that Citi will be bombarded with copies of this post. If you’d like to participate in my experiment, share this on Twitter!]

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