Archive for the ‘IANAL’ Category

Perhaps you’re NOT going down in flames. Also, while you may be tax-fattened, hyena might be a stretch.

Friday, October 13th, 2023

Mike the Musicologist sent this over to me, asking if it counted as flames. I told him I thought it was worth noting, but didn’t think it was a flaming hyena. To which MtM responded “It’s your publication. You make the call.”

Inna Vernikov is a councilwoman from Brooklyn. She’s a Republican from a “conservative” district. She’s also Jewish. And she has a concealed carry permit.

Councilwoman Vernikov went to a “pro-Palestinian rally” at Brooklyn College yesterday.

Councilwoman Vernikov was carrying a “Smith & Wesson 9-millimeter pistol”.

She was “observing a pro-Palestine protest” when she was seen with the butt end of a firearm “protruding from the front portion of her pants”…

She couldn’t afford a decent IWB holster?

Cutting to the chase, the councilwoman has been charged with “criminal possession of a firearm”.

You see, even though she had a concealed carry permit, it seems like:

1. Being seen with the butt of the gun protruding from her pants isn’t “concealed carry”.

2. Quoth the tabloid of record, “Although Vernikov has a concealed carry permit, it is illegal in New York state to have a firearm at sensitive locations such as protests or school grounds.

So why no flaming hyena? I question her judgement in not using a good, discreet holster. I halfway want to question her judgement in going to the rally armed in the first place (“Avoid stupid people in stupid places doing stupid things”) but she may have felt obligated to as a politican, and may have felt she needed to be armed for her protection.

And: I Am Not A Lawyer, But: I think the ban on having firearms at “sensitive locations” is very likely to get overturned if it ever goes to the appellate level. And as I’ve said before, it’s hard for me to sling imprecations at someone who’s committing a crime that I don’t believe should be a crime.

You’re going down in flames, you tax-fattened hyena! (#77 in a series)

Friday, December 17th, 2021

This is a couple days old, but I missed it. Hattip to Mike the Musicologist.

Santa Clara County Sheriff Laurie Smith was formally accused of “willful and corrupt misconduct” by a civil grand jury that had investigated the embattled official.

Court documents filed Tuesday revealed that jurors accused Smith of seven corruption-related acts, including favoritism and improperly issuing concealed-carry weapons permits.

Six involve ongoing criminal indictments alleging Smith engaged in political favoritism and traded favors by leveraging her control over issuing concealed-carry weapons permits.
The seventh accuses her of failing to cooperate with the county law-enforcement auditor in an investigation into negligence allegations stemming from a 2018 jail inmate’s injury that led to a $10 million county settlement, the Mercury News reported.

The articles I’ve read don’t say, but I’m 99 44/100ths percent sure that this is related to the Apple scandal that I wrote about a while back.

Now, I am not a lawyer, I am not a California lawyer, and I am especially not Perry Mason. (They renewed that crap for a second season? What is wrong with people?)

But, as I understand it, the “civil grand jury” indictments are not criminal. The “civil grand jury” in California is chartered to investigate “actions or performance of city, county agencies or public officials.”

The jurisdiction of the Civil Grand Jury is limited by statute and includes the following:

  • Consideration of evidence of misconduct against public officials to determine whether to present formal accusations requesting their removal from office
  • Inquiry into the condition and management of public prisons within the county
  • Investigation and report on the operations, accounts, and records of the officers, departments, or functions of the county including those operations, accounts, and records of any special legislative district or other district in the county pursuant to state law for which the officers of the county are serving in their ex officio capacity as officers of the districts
  • May investigate the books and records of any incorporated city or joint powers agency located in the county

So this isn’t the equivalent of criminal charges, but it is a grand jury saying “We think you’re corrupt as fark”.

It also has the authority to launch the process of removing an elected official from office. Accusations can be taken to trial by district attorneys.

More from KRON4:

Count 1: Illegally issuing concealed carry weapon permits (CCW) to VIP’s
Count 2: Failing to properly investigate whether non-VIP’s should receive CCW permits
Count 3: Keeping non-VIP CCW applications pending indefinitely
Count 4: Illegally accepting suite tickets, food, and drinks at Sharks game
Count 5: Failing to report Sharks game gifts on financial documents
Count 6: Committing perjury by failing to disclose Sharks game gifts
Count 7: Failing to cooperate with internal affairs investigation surrounding treatment of Andrew Hogan

Brief memo from the legal beat.

Thursday, December 9th, 2021

There’s a guy in Houston named Dennis Laviage. I have not heard of him previously, but he’s supposedly a well known scrap metal dealer “best known for buying Houston’s scraps with $2 bills”.

Mr. Laviage is engaged in a lawsuit against a former Houston Police sergeant, Jesse Fite. Mr. Laviage accuses Mr. Fite of withholding evidence from a judge, leading to a wrongful arrest.

In Texas, scrap metal buyers like Laviage are required to report purchases to the Texas Department of Public Safety (DPS). The city of Houston also requires they send reports to a national database called Leads Online. This is, in part, so law enforcement can trace potential metal thieves who sell stolen scraps to unsuspecting buyers.
In 2015, C&D Scrap Metal was using a program called Scrap Dragon to fill out the proper forms and send them off to DPS and Leads Online. In the summer of that year, a glitch in Scrap Dragon withheld a handful of C&D’s reports from DPS, but all of the reports were still being filed with Leads Online. Once Laviage became aware, he notified police and insisted that he would file reports with DPS manually until the software issue was resolved.

Still, Fite continued his pressing until March 2016, when he filed for criminal charges against Laviage. In an application for Laviage’s arrest warrant, Fite accused the scrap metal dealer of “intentionally and knowingly” failing to report those scrap metal purchases to DPS. In the application, nowhere did it state that Laviage contended he knew about the issue and was actively trying to correct it.
A judge found probable cause for Laviage’s arrest based on the application. Several Houston police officers arrested him at his now-shuttered Heights location soon after. In September 2018, a jury found Laviage not guilty of the misdemeanor charge, and the case was expunged from his record. In December that year, Laviage filed a lawsuit in Harris County against Fite for false arrest and malicious prosecution, which was eventually moved to the federal court in the Southern District of Texas.

What’s interesting about this case to me is: last week, a federal judge ruled that Mr. Fite cannot raise a “qualified immunity” defense in this case. In theory, “qualified immunity” states that law enforcement can’t be sued for doing things within the scope of their employment. (I Am Not a Lawyer, and I am oversimplifying here.) In practice, “qualified immunity” has been used to cover a wide range of questionable behaviors: Reason has run a lot of stories on qualified immunity abuses.

Generally, a rejection of a QI defense is rare, so this story is noteworthy on that basis alone. But it also gives me a chance to throw in something absolutely unnecessary, but I think semi-relevant to metal theft:

Random notes: March 28, 2019.

Thursday, March 28th, 2019

Chron Eye For The Killer Guy:

Raised by a single mother who avoided taking care of him, [Patrick] Murphy was beaten and abused as a child, according to court records. His grandmother taught him to shoplift at a young age, and by 17 he’d run away and moved into a homeless shelter.

What did Mr. Murphy do? He’s one of the Texas 7, who broke out of prison in December of 2000, went on the run, and killed Irving Police Officer Aubrey Hawkins while stealing guns from an Oshman’s.

When it was over, Hawkins lay dead in the parking lot, shot 11 times and run over by an SUV as the men fled.

Part of the argument is that Mr. Murphy didn’t actually pull a trigger: he was just a lookout, and it was five other guys who shot Officer Hawkins. But he was still convicted and sentenced to death based on…yes, the law of parties. (Still want to do that podcast some day.)

Even though Murphy went along the day of the killing, his lawyers say he didn’t want to take part in the crime, pointing out that he left as soon as he told the others of the officer’s arrival. Now, they say, executing him would be cruel and unusual punishment.

Pull the other one, guys: it has bells.

(The execution is currently delayed while the Supreme Court evaluates Mr. Murphy’s claim that he’s entitled to a Buddhist spiritual advisor in the death chamber.)

On a much happier note: up yours, Andrew Cuomo. Up yours, Bill de Blasio.

A federal judge ruled today that New York’s notoriously nonsensical law criminalizing “gravity knives”—which groups have said for years is used by New York City to selectively prosecute people, especially the working class and minorities, for carrying common folding knives—is unconstitutionally vague.

As the flaming hyena turns.

Thursday, October 25th, 2018

Remember Dawnna Dukes? Remember what an enormous nothing-burger that whole thing turned out to be?

She’s suing the Statesman, Margaret Moore (the current Travis County DA) and Rosemary Lehmberg (the previous DA), “an investigator with the state auditor’s office”, and three former aides.

The lawsuit, filed late Wednesday by Dukes on her own behalf and without a lawyer, seeks $7.8 million for malicious prosecution and defamation.

The fact that she’s proceeding pro se with a defamation suit is not a good sign. But I Am Not A Lawyer: I’d ask Ken White for his take, but he’s pretty busy these days.

On the other hand, she’s probably proceeding without a lawyer because she’s broke:

The 12-term Austin Democrat said investigative stories by the Statesman, followed by corruption charges that were eventually dismissed, left her financially ruined — saddled with a $187,000 legal bill, deprived of consulting contracts and unable to find additional work.
As a result, her lawsuit said, Dukes’ credit cards were canceled, her car was repossessed and her home and East Austin commercial properties were foreclosed upon.
“The trauma due to financial hardships and loss of reputation aggravated (Dukes’) health issues and, to this day, there is still a lingering inconsolable grief caused by her substantial loss,” the lawsuit said.
Dukes also blamed her legal trouble for her defeat in the Democratic primary in March.

I’ll try to keep an eye on this one. Especially the discovery portion of it: that should be a lot of fun.

Norts spews.

Tuesday, October 9th, 2018

We have our first firing of the NBA season. You know, the NBA season that hasn’t started yet.

Phoenix Suns general manager Ryan McDonough out.

From ESPN:

He drafted the likes of Devin Booker, Josh Jackson, TJ Warren, Alex Len, Dragan Bender and Deandre Ayton. He had some early success, but the Suns are still in the same rebuilding mode that they were in when McDonough was hired. The team went 155-255 during his tenure.
The Suns also had five different coaches under McDonough. Last season, they fired coach Earl Watson three games into the season and named Jay Triano interim coach. In the offseason, they named Igor Kokoskov head coach.

In other news, I missed this story until Popehat tweeted part of it. Ken White’s take on this was more “look at the stupid things clients do”, which surprised me: I’ll touch on the reason why shortly.

Summary: the Los Angeles Dodgers (and other baseball teams) may be in trouble. Legal trouble.

Sports Illustrated has learned that the U.S. Department of Justice has begun a sweeping probe into possible corruption tied to the recruitment of international players, centered on potential violations of the Foreign Corrupt Practices Act. What’s more, SI has learned that multiple alleged victims of smuggling and human trafficking operations have already given evidence to law enforcement agents or testified before a federal grand jury.

The trove of evidence—the material that largely persuaded the bureau to launch an investigation—includes videotapes, photographs, confidential legal briefs, receipts, copies of player visas and passport documents, internal club emails and private communications by franchise executives in 2015 and 2016.

Internal communications by the Dodgers show concerns about what team officials called a “mafia” entrenched in their operations in the Caribbean and Venezuela, including a key employee who dealt “with the agents and buscones” and was “unbelievably corrupt.” Other personnel were suspected of being tied to “altered books” or “shady dealings,” according to the documents.

FanGraphs has an interesting supplemental piece. The part that jumps out at me – and the one that I’m surprised Ken wasn’t all over:

…what is described in the SI piece also comes dangerously close to a violation of a law called the Racketeer Influenced and Corrupt Organizations Act (“RICO”), a law which allows for prosecution of an entire company or enterprise instead of each person involved individually.

Did the Dodgers do the RICO? I am not a lawyer. But the person who wrote the FanGraphs article is: I think she presents a good argument that, if the Dodgers are found guilty of human trafficking, that’s a “predicate offense” for RICO purposes.

To charge under RICO, at least two predicate crimes within 10 years must have been committed through the enterprise.

Mail and wire fraud are also predicate crimes. So one count of human trafficking, and one count of wire fraud…to quote FanGraphs:

…getting banned from baseball may end up being a best-case scenario depending on the extent of their involvement and whether they knew or should have known about the illegality going on in their operations.

Admit it: wouldn’t you love to see the Department of Justice seize the Dodgers in asset forfeiture and try to run a baseball team? I know I would: a government run baseball team would make the 1899 Cleveland Spiders look like a model of competence and sanity.

I’ve seen scammers on Fyre…

Saturday, July 28th, 2018

I’m sure we all remember the Fyre Festival, now a synonym for “legendary fiasco”.

Loyal readers of my blog, and perhaps others, may remember that one of the principals, William McFarland, pled guilty to wire fraud charges related to the festival.

You’re probably not going to believe this. I have trouble believing it myself. On Thursday, Mr. McFarland pled guilty to even more charges.

Mr. McFarland pleaded guilty to wire fraud, bank fraud and making false statements to a federal law enforcement agent and agreed to a forfeiture of $151,000.

Astonishing part one: this had nothing to do with the Fyre Festival. From the Justice Department’s press release:

From at least in or about late 2017, up to and including at least in or about March 2018, McFARLAND owned and operated NYC VIP Access, a company based in New York, New York. NYC VIP Access purported to be in the business of obtaining and selling for profit tickets to various exclusive events such as fashion galas, music festivals, and sporting events, including the following events, among others: the 2018 Met Gala, Burning Man 2018, Coachella 2018, the 2018 Grammy Awards, Super Bowl LII, and a Cleveland Cavaliers game and team dinner with Lebron James. McFARLAND, while on pretrial release, perpetrated a scheme to defraud attendees of the Fyre Festival, former customers of Magnises (another company operated by McFARLAND), and other customers by soliciting them to purchase tickets from NYC VIP Access to these exclusive events when, in fact, no such tickets existed.

Astonishing part two: notice the dates? Yes! He was running this scam while under indictment for the Fyre Festival scam!

McFARLAND, 26, of New York, New York, pled guilty to one count of wire fraud while on pretrial release, which carries a maximum sentence of 30 years in prison, one count of bank fraud while on pretrial release, which carries a maximum sentence of 40 years in prison, and one count of making false statements, which carries a maximum sentence of 5 years in prison. McFARLAND also affirmed his previously entered guilty plea to two counts of wire fraud, each of which carries a maximum sentence of 20 years in prison. In connection with his previously entered plea, McFARLAND agreed to forfeit $26,040,099.48. In connection with today’s guilty plea, McFARLAND agreed to forfeit an additional $151,206.80.

Max sentence, whale sushi, yadda yadda. But I would expect running a second scam while you’re under indictment for the first one to be what they call an “aggravating factor”, and I’d expect Mr. McFarland’s sentence to be on the high end of those ranges.

Of course, I Am Not a Lawyer, so take that with some salt.

Annals of law (#12 in a series)

Thursday, March 23rd, 2017

Section 29.03 of the Texas Penal Code defines “aggravated robbery”:

Sec. 29.03. AGGRAVATED ROBBERY. (a) A person commits an offense if he commits robbery as defined in Section 29.02, and he:
(1) causes serious bodily injury to another;
(2) uses or exhibits a deadly weapon; or
(3) causes bodily injury to another person or threatens or places another person in fear of imminent bodily injury or death, if the other person is:
(A) 65 years of age or older; or
(B) a disabled person.
(b) An offense under this section is a felony of the first degree.
(c) In this section, "disabled person" means an individual with a mental, physical, or developmental disability who is substantially unable to protect himself from harm.

Seems mostly clear, right? Except: what constitutes “a deadly weapon”?

Is “a pellet gun” a deadly weapon?

Dustin Clark and two other men are suspected in a string of convenience store robberies in Travis County. They were stopped by the Lakeway PD in December of 2015, shortly after allegedly robbing a store in Spicewood, holding “pellet guns” to the clerk’s head, and threatening to kill him. The police found the pellet guns, money, ski masks, other identifying clothing, and a pack of Starburst allegedly stolen by Clark in the car. (The police also found “two deer rifles” in the trunk. I have seen contradictory reports about whether these were airsoft guns or real rifles. However, the “deer rifles” were not used in the robbery, and were not part of the criminal case as best as I can tell.)

Mr. Clark went on trial this week. There seems to have been little doubt about his guilt: his own attorney conceded that it was his client on the surveillance video from the store. The main legal issue was is it plain old robbery, or aggravated robbery?

The pellet guns were found unloaded and not carrying a C02 cartridge that would have made them operable.

Mr. Clark was offered a plea deal of 40 years before trial. The maximum for plain old robbery is 20 years, and 99 years for aggravated robbery. I don’t know enough about Mr. Clark’s background to be able to estimate what the likely sentences would have been.

Mr. Clark turned down the 40-year deal and chose to go to trial. His attorney moved to include robbery as a lesser charge for the jury to to consider, but the Travis County DA successfully fought that motion. So the only charge the jury was allowed to consider against Mr. Clark was aggravated robbery.

And they acquitted him.

But the jury could consider only one charge — aggravated robbery — and after more than six hours of discussion they finally united and ruled that the pellet guns the men used to scare two employees are not deadly weapons. Therefore, several of them told the American-Statesman, they had to acquit Clark. About half of the 12-person jury granted an interview request saying they wish they had the option to convict Clark of the lesser charge.
They said there was no proof the guns contained pellets or the CO2 cartridges that power them at the time of the robbery.

I personally wonder how the clerk was supposed to know that. I’d also really like to see photos of the pellet guns. And I wonder what else this means, legally? Not that I would, but if take the firing pin and cartridges out of a Smith and go hold up a Stop’N’Rob, is it just robbery? The gun can’t fire, right? So it’s not a deadly weapon, at least if I understand the logic here correctly.

[Travis County Assistant DA Amy] Meredith added she still believes aggravated robbery “was the appropriate charge.” State district Judge David Crain denied the defense’s motion to include the robbery charge after taking a break in chambers to research the law. Prosecutors had made Crain aware of a ruling from a case 11 years ago in which pellet guns had been found to be deadly.

I don’t feel too bad for ADA Meredith. Even though she didn’t get a conviction in this case, she did make an interesting legal point. I don’t think this rises to the level of precedent because Judge Crain’s ruling hasn’t been reviewed by a higher court, but perhaps this is something the Texas legislature could offer some additional guidance on. Also, Mr. Clark is still facing charges in six other robberies, so it isn’t like the TCDA whiffed on their only chance to convict him.

I thought about blogging this when the first story appeared Tuesday, but didn’t get to it (this is a busy week). But RoadRich emailed the print version of the story yesterday, which led to a lively discussion between him, myself, Mike the Musicologist, and Lawrence.

MtM observed that he recalls one of the northern states changing the law some years back so that if you brandish a fake weapon with the intent of making your victims think it is real, you get treated like it was real. Spray paint the end of that airsoft gun black and use it to hold up a liquor store? Big boy rules apply.

I think both MtM and I are on the same side of the divide when it comes to the increased tendency to criminalize everything and sweep up more people in the web. But I also think we’re both in agreement that this is the kind of “play stupid games, win stupid prizes” law that we could get behind.

(On a related side note, I’m halfway tempted to start a podcast with the four of us sitting around eating dinner and talking about legal issues. I even have a name for it: “I’m Not A Lawyer, But…”. I figure it should be easy to get sponsorship from SquareSpace, at least. If it proves popular enough, I might even offer to fly Ken and/or Patrick in as special guests for barbecue. That is, if their heads haven’t already exploded. Episode 1 is going to called “Rule of Parties be damned”.)

Buddy.

Friday, January 29th, 2016

In another life, I used to travel between Austin and Rhode Island regularly (once a year or so).

The first time I went, I stayed downtown, at the Biltmore. This was 1995, I think, and it seemed that downtown was dead.

But I kept going back (this was the business I had chosen) and downtown Providence got better. They built a big new mall within walking distance of the Biltmore. They started Waterfire. The last time I was in Providence, it was a fun, exciting place to be. I miss it.

Buddy Cianci was responsible for a lot of this.

===

He wasn’t a hero of mine, and I never really “met” him. I did encounter him a couple of times.

It was a running joke among my coworkers (and the folks we worked with in Rhode Island) that you should eat at Joe Marzilli’s Old Canteen at least once; not only was the food good, but if you got lucky, you might see Buddy.

Well, one night I was in there with some of my coworkers and some of our Rhode Island contacts. So was Buddy. He actually came over to our table and commented on how cute and well-behaved the young child who was with us was. (As I recall, he was accompanied by a stunning, and very young, woman.)

Later on that trip, I shared an elevator ride with him. I didn’t say anything to him; didn’t seem like the time or place. I kind of wish I had said something nice to him now.

===

The Prince of Providence is a swell book about Buddy and Providence politics, though I don’t know if it has been updated since 2003.

===

Buddy reminds me some of Robert Moses. Both were examples of The Man Who Got Things Done. And it seems that both were also examples of the “rude to the waiter” rule. (I watched him get kind of snippy once with a desk clerk at the Biltmore who didn’t recognize him. To be fair, though, he was actually living in the Biltmore at the time…)

I was always conflicted by him. As a Libertarian, he represented a lot of what I hate about big government. As a connoisseur of politicians, especially crooked ones, he was one of the last examples of a type we probably won’t see again.

And I always thought his second conviction was questionable. He was charged on 27 counts, and was acquitted on 26. The one thing he was found guilty of was “racketeering conspiracy”. What the hell does that even mean? What “racket” was he “conspiring” in, if he wasn’t guilty of the other 26 charges?

Then again, I Am Not A Lawyer, and maybe I’m inclined to make excuses for someone I kind of liked.

===

He may have been a crook. But he was my crook, damn it.

110 years ago today…

Wednesday, December 30th, 2015

…early in the evening on December 30, 1905, Frank Steunenberg, the former governor of Idaho, returned to his home in Caldwell after a busy day downtown. (Among other tasks, Steunenberg renewed his life insurance policy.) He opened the side gate to his home…

…and set off a massive explosion that gravely wounded him. He was carried into his home by family and neighbors, and lingered for a short period of time before succumbing to his injuries around 7:10 PM.

For days thereafter, passerby were picking “little bits” of the governor out of the debris.

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Juggalo law.

Wednesday, January 8th, 2014

The Michigan rap group Insane Clown Posse filed suit on Wednesday against the Justice Department and the Federal Bureau of Investigation, saying that the United States government had made the “unwarranted and unlawful decision” to classify fans of the band as criminal gang members, leading to their harassment by law enforcement and causing them “significant harm.”

This by way of a rather cryptic tweet from Popehat:

(Sorry, Mom.)

Not being a lawyer, I’m not sure what Popehat is referring to here as far as the Federal Rules of Civil Procedure, though I’m hoping it wasn’t just a play on ICP’s most famous quote and we’ll get a fuller explanation later. As a guess, I want to say that Violent J and Shaggy 2 Dope may not have standing to sue, as it isn’t clear to me that they have actually been damaged directly by the government’s actions.

TMQ Watch: October 8, 2013.

Wednesday, October 9th, 2013

Offensenitivity! In this week’s TMQ, after the jump…

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