Police: Reform, Defund, or Disband

Former Vice President Joe Biden has announced his support for efforts to reform police departments in the United States and to address systemic racism in police departments.  Others have demanded the defunding of police departments.  Finally, there is a group of police critics who are demanding the disbanding of police departments.  Each of these approaches present potential promises and dangers.

Reform usually consists of at least some of the following:  1) improved training, 2) prohibiting use of choke holds, 3) greater transparency concerning allegations of police misconduct, 4) national registry of police officers who have been found to abuse their positions or, in some suggestions, have had allegations of abuse lodged against them, 5) procedures to facilitate the removal of abusive officers, 6) independent investigations of allegations of police abuse, and 7) employment of the same standards for prosecution of police officers as those for non-police officers.

The history of reforming police departments in this country is not remarkable for its success.  Reforming law enforcement is extremely difficult.  Typically, the demand for action to implement reforms wanes in the face of concerted resistance from the police rank and file and “law and order” politicians playing to the fears of the public.  Unfortunately, the opposition to law enforcement reform usually employs at least racist dog whistles, which not only defeats the reform agenda but also reinforces the use of brutal force against minority communities.  When reformers have succeeded, such success is at best incomplete as only a small part of the reform agenda is implemented.  Most significantly, reform agendas rarely confront the issue of systemic racism directly.  Moreover, such agendas rarely address the serious issue of non-abusive officers tolerating the illegal conduct of their peers.  Until there is a cost imposed on the “blue wall of silence,” meaningful change will not occur.

Defunding police departments typically refers to the reallocation of resources to other areas to benefit the community.  The theory is that crime can be fought by supporting and growing community programs that have reduction of criminal activity as a direct benefit.  This is essentially a punitive measure taken against the police department for allowing brutal law enforcement behavior.

The danger of defunding arises from the possibility that ultimately the areas of funding deprivation could be training, community outreach, diversity recruiting, and other such areas and programs.  A less well funded police department does not automatically constitute a better or less dangerous police department.  Defunding without accompanying reform seems to be a non-starter.

Disbanding police departments is the most radical of the proposals for addressing police brutality.  It is not the complete doing away with law enforcement of a city or town.  It has only occurred once, in Camden, New Jersey.  The results were quite successful as crime fell and relations with the community improved.  In this alternative the police department is disbanded and then reformed.  Officers may reapply for their jobs but have no guarantee of rehiring.  The rebuild of the department addresses all areas of training and policing.  It is a complete reform of the department.

Nevertheless, any attempts to address police misconduct toward the public must involve directly confronting the issue of systemic racism in law enforcement.  The are several well documented instance of unarmed black men dying at the hands of police from the use of choke holds.  Conversely, one is at a loss to name one unarmed white man whom police killed by using a choke hold.

Courts Continue Some Operations during Coronavirus Slow Down

Throughout the United States the country is experiencing a severe economic slow-down as only recently have cities and states begun to relax their stay at home orders in response to the Covid 19 pandemic.  One of the institutions greatly affected by the social distancing regulations is the court system.  The safety procedures ordered in place have had a tremendous impact on our judicial system but have not totally closed the legal system down as both criminal and civil legal actions are continuing.

A typical court building is a beehive of activity in ordinary circumstances.  Apart from trials and other court appearances, the administrative apparatus of the courts take place.  This apparatus includes the clerk’s office, cashier’s offices for the payment of fees, fines, and assessments and a myriad of other court offices.  While courts serving large population centers are more crowded that courts found in rural settings, all are typically busy with people tending to legal matters.  In these extraordinary circumstances of an ongoing pandemic the proximity of people to each other would make the courts a prime location for viral contagion.

To avoid the spread of the virus most courts have limited activity to essential matters.  For instance, criminal arraignments and initial appearances continue to take place.  Also, necessary hearings such as preliminary hearings to determine probable cause in criminal cases also take place.  In the civil context discovery does not occur in court and can continue without court appearances.  Typically, necessary appearances, hearings, and depositions are conducted remotely, using facilities such as Zoom.

However, trials are not happening in the courts practicing social distancing and other public health mandates to slow the pandemic.  In some federal courts trials will not take place before August or September.  Jury pools, jury boxes full of people, witnesses waiting together to testify, attorneys, court personnel, and others needed for a trial create a great possibility of contagion, making trials too dangerous.  An additional concern is the movement of criminal litigants, who are in custody, to court and back introducing the Covid 19 virus into jail facilities where inmates are housed near each other.

Interestingly, the constitutional right to a speedy trial may be waived without the specific authorization of a criminal defendant.  It is the only criminal constitutional right that can be waived without a defendant’s agreement.  To waive the speedy trial limitations requires that a judge find that the delay is in the interests of justice.

In conclusion, persons should be aware that the courts are functioning to a degree and that the legal system continues to operate.  Police are making arrests; prosecutors are bringing cases.  Moreover, law enforcement personnel, both criminal and civil, are continuing to conduct investigations.  In the civil arena lawsuits continue to be filed.  Motion practice and discovery are continuing.The pandemic should not prevent individuals from seeking legal advice should the need arise.

COVID-19 Scams

Crises provide fertile grounds for scam artists to defraud the public. The coronavirus serves as an ideal opportunity for con artists to flourish. Law enforcement sources are reporting the existence of all manner of consume fraud schemes.

There are no such things as door to door coronavirus tests. Some confidence artists are moving through neighborhoods knocking on doors, advising that they have Center for Disease Control (CDC) or other government agency authorized portable tests to determine positivity for COVID 19. Beyond the fact that, as of the writing of this blog entry, the United States continues to suffer from a woeful inadequacy in test capacity, there are no authorized portable testing facilities. The technology to do such testing may not even exist.

Persons calling on the telephone or sending email blasts offering services to test for and/or remove coronavirus from private homes are perpetrating scams. These frauds are becoming increasingly common. Homeowners should follow CDC and government guidelines for cleaning and disinfecting areas that many people commonly touch and should practice “social distancing” as directed by medical authorities.

Finally, when searching online line for coronavirus information, persons should make certain that they are accessing legitimate and reputable websites. Fraudsters have designed some sites to resemble those of reputable agencies or medical facilities, but, in reality, these are fraudulent sites seeking to extract personal and identifying information from the researcher’s computer.

These are a few examples that persons should know. There are potentially as many others as there are creative con artists.

Federal Sentencing Guidelines

The United States Federal Sentencing Guidelines became law as part of the Sentencing Reform Act of 1984.  The purpose of the Guidelines was to make sentencing uniform throughout the United States for serious federal crimes.  The intent was to prevent similarly situated defendants convicted of the same crime or crimes from receiving divergent sentences.

The Guidelines allocate to each specific federal offense a sentencing level.  Then, there are specific aggravating or mitigating factors, which also have levels assigned.  These factors serve to raise or lower the offense level from the original established for the crime.  In addition to the offense level, the Guidelines require the determination of a criminal history for each defendant.  The Guidelines allocate criminal history points for various prior crimes.  This results in a sum reflecting a defendant’s criminal history score.  This then translates into a defendant’s criminal history category.  There are six such categories.  Criminal history hategory I is the lowest and reflects zero or one criminal history point.  There are cut-offsset for criminal history points for each succeeding category to the highest, which is criminal history category six. 

Once the offense level and the criminal history category are determined, reference is made to the Federal Sentencing Guidelines Chart.  The chart is a table with the offense levels represented on the vertical axis of the chart and the criminal history categories on the horizontal axis.  The intersection of a defendant’s offense level and his or her criminal history level reveals the person’s Guidelines sentencing range as the Guidelines present all sentences as a range of months.

The probation office of the district court makes all offense and criminal history calculations.  The office does so as part of its preparation of a presentence investigation report for the court and the parties.  Both the government and the defendant have a right to contest the findings of the probation office.  If such a challenge is successful, the guideline range changes to reflect the new offense level and/or criminal history category.

For the first 21 years of their existence the Guidelines were mandatory.  Federal court judges had no discretion to sentence outside the applicable guideline range unless enumerated factors within the Guidelines themselves justified an upward or a downward departure from the applicable guideline range.  In 2005, the United States Supreme Court in United States v. Booker, 543 U.S. 220 (2005), declared the mandatory nature of the Guidelines to be a violation of the U. S. Constitution’s Sixth Amendment right to a fair trial.  That decision made the Guidelines advisory and once again placed sentencing largely in the hands of Article III district court judges.  The decision required judges to consider the Guidelines but permitted the courts to fashion sentences appropriate to the defendants and cases before them within the sentencing range established by Congress for each criminal offense.

Now, in practice the parties have three avenues to arguing against a Guidelines range sentence presented in the presentence investigation report.  The first is the traditional manner of objecting to the report’s calculation of the offense level or criminal history category.  The second is the traditional manner of seeking a Guidelines departure through the enumerated categories in the Guidelines.  The final avenue available since Booker is to seek a variance from the Guidelines by arguing factors that federal judges must consider in imposing a sentence.  These factors are listed in 18 U.S.C. §3553(a).

Sentencing in the federal criminal context is extremely complex and technical.  Someone facing potential federal incarceration needs the advocacy of an attorney very familiar with the Guidelines, their application, and who can calculate a likely sentence in analyzing how to defend a case.  Of equal importance is the knowledge and applicability of the Section 3553 factors and how to successfully argue those factors to lower any potential sentence.

How Securities and Exchange Commission Periodic Filings May Lead to Fraud Charges

The Securities and Exchange Commission requires three quarterly filing and an annual filing by most publicly traded companies.  These filings, known as a “10-Q” for a quarterly filing and a “10-K” for an annual filing, contain information about both the business aspects of the reporting company and its financial position.  In fact, the annual filing must have audited financial statements included.

Investors or potential investors use the information in these reports to make decisions about whether to purchase the securities of the reporting companies.  Thus, the contents of these reports are vitally important as they serve as bases of information about the company that the investing public uses to make investment decisions.  As a result, the SEC considers the accuracy of the information in these filings to be of paramount importance.

If the business or financial information is believed to be inaccurate, the SEC will begin an inquiry or investigation to determine the following:  1) whether inaccuracies do exist, 2) whether the inaccurate information presented is material in that it would be information that a reasonable investor would consider in making a decision to purchase or sell the security, and 3) whether the company acted with scienter or guilty knowledge in filing the inaccurate information.

If the SEC believes that the answer to each question is positive, it may well bring an enforcement action against the reporting company and officers alleging fraud.  Defending an SEC fraud investigation or complaint requires skilled experience in that area of the law to bring about the best possible result.

Miami Dade Police Shootings

Recently, in the Miami area hijackers stole a UPS delivery truck, took the driver hostage, and engaged police in a high-speed chase.  The incident ended tragically in a shoot-out with police that resulted in the hostage and an innocent motorist dead as well as the suspected hijackers.  All appeared to have died as a result of law enforcement fire.  Law enforcement stated that the many officers involved were “forced to shoot.”  Living in south Florida means that we often see news reports in which the police shoot someone and claim that the involved officers “were forced to fire.”  What does that phase mean?  Why are the police in Miami Dade County forced to shoot so often when their counterparts around the country employ lethal force so much less frequently?

First, all police departments should have in place regulations establishing the circumstances under which the use of deadly force is authorized.  As a young prosecutor in New York City, I learned that the New York City Police Department guidelines required that an officer or an innocent member of the public be in imminent danger of serious harm before officers were permitted to fire their weapons.  As applied, these regulations resulted in very few shootings by the New York City Police Department.  Moreover, this lack of lethal force by the police, to which I refer, occurred in the early 1980’s, a period of high crime and homicide rates.  Thus, there were many encounters between police officers and criminal suspects.

It appears that the engagement policies in south Florida authorizing use of deadly force by law enforcement are either significantlylaxer than those in other parts of the country or are interpreted in a much broader manner.  It is a very positive development that the Florida Department of Law Enforcement is investigating the UPS shoot out.  Hopefully, the investigation will determine whether the guidelines are too lenient and/or whether their interpretation needs to be reassessed.

Ponzi Scheme

A ponzi scheme is an investment fraud in which the longer-term investors receive payments from the contributions of recent investors.

In a typical ponzi scheme the promoter will advertise investment returns that are literally to good to be true.  Such promised or guaranteed returns may be a 50% to 100% return in a matter of weeks or months.  The scheme may tout investments in any industry, area of commerce or any such economic sector.  Currently, ponzi schemes are proliferating in the technology sector.  For instance, this month the United States Attorney in New Jersey charged five individuals with running a ponzi scheme purportedly based on bitcoins.  The prosecutor alleges that the scheme resulted in investor losses of $700 million during a single year.

Typically, the purveyors of a ponzi scheme advertise for investors, claiming great returns on investments into the investment vehicle.  In reality, there is no investment vehicle.  Most of the monies go to those committing the fraud.  Once a victim has invested, thepersonsbehind the scheme attempt to get this investor to reinvest the purported earnings, thus, allowing the fraudsters to avoid or limit the amounts that they must pay to the original investors to continue the fraud.  Therefore, the success of the ponzi scheme requires that the con artists continue to obtain further investors.  With this new money the operators can pay the claimed returnsof previous investors.  Ultimately, the number of investors requesting actual payment of the amounts they believe to be earned will overwhelm the incoming money.  At this point the scheme will fail, and the perpetrators will disappear with the vast majority of the invested funds.

The name “ponzi scheme” comes from an early Twentieth Century con artist named Charles Ponzi.  While Ponzi did not invent the scheme, he ran a fraud that was so successful, the type of scheme became associated with his name.