My Style - Reclaim My Identity : January 2018

Wednesday, January 31, 2018

Make No Law Episode Two: The Schoolhouse Gates

In Make No Law podcast Episode Two: the Schoolhouse Gates, I interview Mary Beth Tinker, who won an important victory for student free speech rights, and remains an activist for free speech rights to this day. What was it like in 1965 to defy the school district's rule against black armbands? Listen and find out.

Here are some of the cases and resources mentioned in the podcast:

Supreme Court decision in Tinker v. Des Moines

Oyez page on Tinker v. Des Moines, including oral argument recording

Tinker Tour USA: Mary Beth Tinker's student free speech organization

Ninth Circuit amended opinion (with dissent from refusal of rehearing) in Dariano v. Morgan Hill Unified School District, the Cinco de Mayo flag shirt case

My 2010 post about the Dariano case

Supreme Court opinion in Morse v. Frederick
— an example of the retreat from Tinker's protection for student free speech rights

Make No Law Episode One: Fighting Words

In Episode One, with the launch of the Make No Law podcast, I look at "fighting words" the exception to the First Amendment established in the 1942 case Chaplinsky v. New Hampshire. What got Walter Chaplinsky so riled up, and why were the cops so eager to prosecute him for an inconsequential outburst? Listen to find out.

On iTunes

Here are some of the documents and cases discussed in the episode:

Supreme Court decision in Chaplinsky v. New Hampshire

The Billy Gobitas letter

Supreme Court decision in Minersville School District v. Gobitas

Judging Jehovah's Witnesses:
Religious Prosecution and the Dawn of the Rights Revolution, by Shawn Francis Peters

1941 ACLU pamphlet "The Persecution Jehovah's Witness"

Supreme Court opinion in West Virginia State Board of Education v. Barnette

Supreme Court decision in Cohen v. California

Supreme Court decision in Texas v. Johnson

Supreme Court decision in Snyder v. Phelps

Wednesday, January 24, 2018

Announcing "Make No Law": Popehat's First Amendment podcast on Legal Talk Network

I'm thrilled to announce "Make No Law," a First Amendment podcast on Legal Talk Network. You can see the announcement page on LTN here. The podcast will be available on iTunes and Google Play, and you'll be able to stream it at LTN and here.

Make No Law explores the legal, social, and historical background of important First Amendment cases, with interviews with participants and experts. Each episode looks at a particular case, both lawsplaining it and putting it in its context. In future episodes, I hope to answer listener questions about free speech issues and take suggestions for topics. My goal is a podcast that's interesting, informative, and accessible to non-lawyers and lawyers alike.

We'll be launching with two episodes:

Episode One, "Fighting Words": What made Warren Chaplinsky so angry on that April day in 1940 that he called a cop a fascist and racketeer? Why was he prosecuted for such a trifling thing, and what did he have in common with a boy writing a letter to a school district in another state five years earlier?
Episode Two, "The Schoolhouse Gates": I interview Mary Beth Tinker, free speech activist and the victorious plaintiff from the crucial student free speech case Tinker v. Des Moines.
And we'll be aiming at releasing episodes monthly. Coming soon:
Episode Three, "On The Job": How do the courts balance the free speech rights of government employees with the need to maintain discipline in government workplaces? I interview Richard Ceballos, a Deputy District Attorney who faced retaliation for questioning a search warrant, and whose case articulated a troubling rule for government employees.

Episode Four, "Disparagement, Contempt, and Disrepute": I interview Simon Tam of the band The Slants about his recent Supreme Court victory and the trademark process that, despite what he and his fans thought, told him his band's name was racist and unacceptable.

We're launching, barring disaster, on January 31, 2018.

I'm deeply indebted to the superlative team at Legal Talk Network, who are responsible for the podcast sounding like something more than me shouting into a soup can. Executive producer Laurence Colletti, producer Kate Nutting, and particularly redoubtable sound engineer and composer Adam Lockwood turned this from an idea into a show. It's been a privilege to work with them.

Thursday, January 11, 2018

Anatomy of a Scam: The End

This series is about my investigation of a mail fraud ring that attempted to scam my firm, the history of its bad actors, and the methodology that I used to look into it. You can see the whole chapter index here.

More than seven years ago, I became irritated at a fraudster trying to scam my office and started to write about him. Seven years and fifteen posts later, the slow-grinding wheels have ground their last on the case. Earlier this week, David Bell — the central figure of this Anatomy of a Scam series — was sentenced to 108 months in federal prison after his guilty plea to mail fraud and wire fraud. There's no parole in the federal system any more; Bell will do at least 85% of that time, or about seven and a half years. He'll be on "supervised release" — the modern federal equivalent of supervised parole — for three years after that, and will be at risk of being sent back to prison if he's caught engaged in fraud again. He's scheduled to surrender in March.

This is not a typical result. There are tens or hundreds of thousands of con artists out there, and they frequently escape detection. When they are detected, they frequently escape prosecution, and when they are prosecuted, they frequently escape with mild sentences on lesser charges, leaving them free to victimize again. This sort of hard-time outcome is rare despite the amount of harm these people inflict. The government simply doesn't have the resources to mount this sort of investigation against any but the worst of the worst.

But I don't want readers to take that grim message away from this series. Rather, I want people to see that they can take initiative themselves — that they can use the techniques and research tools I've discussed in this series to track down the people trying to scam them, to spread the word about them, and to inform law enforcement about them. The best defense against con artists isn't the government, because government doesn't have the resources. The best defense is self-reliance, healthy skepticism, involved communities, and public-spirited private investigation that can be broadcast far and wide through modern tools.

Thursday, January 4, 2018

Lawsplainer: Attorney General Sessions' Threatened Action on Marijuana

WAKE UP WAKE UP THEY'RE COMING FOR ME I NEED BAIL MONEY

wat

THE FBI THEY'LL BE HERE ANY MINUTE BECAUSE I ATE THAT NO-GLUTEN BROWNIE AT AN OSCARS PARTY IN LOS FELIZ

What the hell is going on?

The feds! They're coming after us for our marijuana!

Wait. Is this about Attorney General Jeff Sessions saying he will rescind Obama-era Department of Justice memos about federal prosecution of marijuana transactions that are legal under the laws of various states?

Yes! Yes. That. The rescindition, with the thing, and Sessions. And marijuana.

Okay. And do you know the context?

YES! Yes. Yes. A bit. A bit. No. Not really.

Okay. Let's talk about what it means.

So I'm not getting arrested by the ATF right away?

You don't . . . the ATF doesn't . . . you know, just hold on a second and let's go through this.

Okay.

So. Let's start with basics.

Many states make it illegal to possess or distribute marijuana. Until recently it was all states. It's also a crime under federal law. Even simple possession of marijuana — that is, possession for personal use, not to distribute to someone else — is a federal crime.

Wait, you were a federal prosecutor back in the 18th Century or something. Did you actually prosecute people for marijuana?

Yes. I'm not proud of it. I prosecuted people for involvement in marijuana cultivation and distribution operations — operations involving 500 plants or more. It was wrong, and I'm actually ashamed of it.

For many years there wasn't a conflict between state and federal law. Both prohibited marijuana. But then states, one by one, began making marijuana legal — first for medical purposes, then for personal use.

What did that do to the federal law?

It did nothing. Marijuana remained illegal under federal law. Under the Supremacy Clause to the United States Constitution, the states can't immunize people from federal prosecution — they can make things legal under state law, but can't make things legal under federal law. Cultivating marijuana and distributing it were a federal felony. Only policy, prosecutorial discretion, and resource allocation would save you from being prosecuted federally for marijuana distribution that was legal under state law.

That sounds like a recipe for uncertainty and disaster.

It was. Under the Obama Administration, the United States Department of Justice issued a series of memos with guidelines for federal prosecutors to help them decide whether and when to launch federal prosecutions of marijuana offenses that might be legal under state law. The first, in October 2009, was called the Ogden Memorandum, named after a Deputy Attorney General. It said that federal prosecutors "should not focus federal resources in your states on individuals whose actions are in clear and unambiguous compliance with state laws" permitting medical marijuana use. Instead, it said that federal prosecutors should focus on only those marijuana cases that reflected high federal interest: cases involving possession of guns, violence, sales to minors, ties to criminal enterprises, financial shenanigans, and distribution of other illegal substances.

But in 2009 the state laws were only about medical marijuana, right? What about when personal use marijuana became legal in some states?

There were more memos about that, called the Cole Memoranda. Deputy Attorney General Cole issues a series of memoranda further articulating Department of Justice policy in the face of emerging state laws legalizing personal use of marijuana. The upshot was this: the Cole Memoranda said that as long as states effectively regulated marijuana usage to assure compliance with state personal use laws, the Department of Justice would focus its resources on federal interests: sale to children, connections to organized crime, transportation from one state to another, use or cultivation on federal property, and use of financial systems to launder or conceal proceeds. Other parts of the federal government followed suit: for instance, the Treasury Department's Financial Crimes Enforcement Network (FINCEN) issued guidelines for financial institutions for dealing with customers engaged in state-legal marijuana businesses.

So if you want to grow or sell marijuana in states where it's legal, you're safe from federal prosecution as long as you obey state law, stay away from kids and organized crime, and the federal prosecutors obey the Department of Justice guidelines?

In theory. Plus, Congress got into the act.

In 2016, in the Rohrabacher-Farr amendment to an appropriations bill, Congress prohibited the Department of Justice from using federal money to "prevent" states from implementing laws making medical or personal use of marijuana legal. Courts have found that this amendment may prohibit federal prosecutions for marijuana activities that are legal under state law.

Since then, Rohrbacher-Farr has been included in each appropriations bill and continuing resolution.

So what does all this mean for people who want to use or sell marijuana in states law allow it?

First of all, practically speaking, federal prosecutors can't do much about marijuana use. Federal prosecutors only have the resources to prosecute a tiny number of cases compared to state prosecutors, and the vast majority of their time is taken up with other priorities: serious white-collar crime, immigration crime, guns, violent crime, and so forth. Typically federal prosecutors have guidelines that discourage taking any but the biggest marijuana cases — cases involving hundreds or thousands of kilos or many hundreds of plants.

Second, between the Ogden and Cole Memoranda and Rohrabacher-Farr, federal prosecutors haven't made serious attempts to thwart state laws making marijuana legal. They've made a few gestures consistent with the Cole memorandum — for instance, by sending letters to landlords of marijuana dispensaries that were operating in violation of state law, threatening that they could face prosecution or forfeiture for allowing their property to be used for marijuana activities in violation of state law.

But that could change.

How does Attorney General Sessions figure into this?

Sessions is a staunch foe of marijuana legalization. He asked Congress not to include Rohrabacher-Farr in appropriations bills back in 2017. He's previously sent mixed messages about the Ogden and Cole Memoranda. And now, reportedly, he wants to rescind the Ogden and Cole Memoranda and change Department of Justice policy on federal prosecution of state-legal marijuana activities.

Okay. But what does that really mean?

As long as Rohrabacher-Farr remains in every federal appropriations bill, it's largely symbolic — the Department of Justice will still be prohibited from spending money on prosecuting people for marijuana activities that are legal under state laws. And, practically speaking, it's utterly impossible for the Department of Justice to prosecute more than a very tiny fraction of marijuana cases. They don't have the resources. A big U.S. Attorney's Office might file around 1200 indictments a year — that's all indictments for all types of cases and crimes. Of that, maybe a dozen, tops, might be about marijuana. They can't change that without sacrificing other priorities. They could abandon every other type of case and still not do a tenth of the marijuana cases that local authorities do. Moreover, marijuana legalization is quite popular, and federal interference in it is quite unpopular, so there's not a whole lot of upside.

That said, if Sessions revokes the Ogden and Cole memoranda — and especially if he also succeeds in convincing Congress not to include Rohrabacher-Farr in the next appropriations bill or continuing resolution — he'll inject a substantial amount of uncertainty into the situation. Even if getting prosecuted federally for marijuana is so rare that it's like getting struck by lightning, getting struck by lightning remains terrifying and often fatal. This will have relatively little impact on personal users, but it could have a significant impact on the development of the legitimate business side of marijuana cultivation in states where it is legal. Landlords who might rent to dispensaries, businesses that might service them, financial institutions that might handle their money, professionals that might advise them — those legitimate, high-profile, highly-risk-averse institutions will all be deterred from involvement in the industry. The process of turning marijuana from a street drug to a legally regulated commodity will, at least, be slowed down.

But I won't go to jail?

No. Unless the feds decide to file one of their extremely few marijuana prosecutions to make an example of you — if you run a prominent cultivation operation, or run a bank handling a cultivation operation's money, or something like that — your primary criminal risk will still be about compliance with state law. Your main concern will be that businesses and institutions will be slow to support an activity that the citizens of your state have chosen to make legal.

So what are you watching for?

Three things. First, I'm looking for the language of Sessions' revocation of the Ogden and Cole memoranda. Will he simply revoke them, or will he announce a new policy? That new policy will suggest the future risks of federal prosecution. It would not surprise me if this is mostly cosmetic: Sessions may issue a memorandum that has anti-marijuana propaganda but doesn't really change federal priorities or resource allocation.

Second, I'll wait to see if other policies change — for instance, whether FINCEN revokes its financial institution guidelines in reaction to any memo from Sessions.

Third, I will watch to see whether Rohrabacher-Farr is included in each appropriations bill and continuing resolution. If it is, that's still a substantial impediment to a federal anti-marijuana surge. If it's left out, then that signals significantly increased danger.