Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘Maryland’

“Their town has become farcically overregulated”

Discontent at a land-use control process perceived as “condescending and obnoxious” helped fuel a surprise voter revolt in affluent Chevy Chase, Md., just across the D.C. border in Montgomery County. [Washington Post] Aside from intensive review of requests to expand a deck or convert a screened-in porch to year-round space, there are the many tree battles:

[Insurgents] cite the regulations surrounding tree removal as especially onerous. Property owners seeking to cut down any tree 24 inches or larger in circumference must have a permit approved by the town arborist and town manager attesting that the tree is dead, dying or hazardous.

If turned down, residents can appeal to a Tree Ordinance Board, which applies a series of nine criteria to its decision, including the overall effect on the town’s tree canopy, the “uniqueness” or “desirability” of the tree in question and the applicant’s willingness to plant replacement trees.

More: Philip K. Howard with ideas for fixing environmental permitting. [cross-posted at Free State Notes]

Filed under: , ,

“We don’t have to prove that the person is guilty…. It’s that the money is presumed to be guilty.”

Joline Gutierrez Krueger at the Albuquerque Journal with the tale of the $16,000 in cash that “Joseph Rivers said he had saved and relatives had given him to launch his dream in Hollywood … seized during his trip out West not by thieves but by Drug Enforcement Administration agents during a stop at the Amtrak train station in Albuquerque. An incident some might argue is still theft, just with the government’s blessing.” The government hasn’t charged Rivers with anything and, under the rules of civil asset forfeiture, doesn’t have to:

“We don’t have to prove that the person is guilty,” [Albuquerque DEA agent Sean] Waite said. “It’s that the money is presumed to be guilty.”

Meanwhile, despite the U.S. Department of Justice’s promise to stop seizing bank accounts in future in cases where violations of laws against bank deposit “structuring” (keeping them under the $10,000 reporting threshold) are not connected with any underlying crime, it continues to hold on to money already in the seizure pipeline. That includes the $107,000 grabbed from Lyndon McLellan, who runs L&M Convenience Mart in rural North Carolina, according to the New York Times. “You work for something for 13, 14 years, and they take it in 13, 14 minutes.” More about the case from Jacob Sullum and Adam Bates.

A prosecutor wrote menacingly to McLellan’s lawyer about the publicity the case had been getting:

“Your client needs to resolve this or litigate it,” Mr. West wrote. “But publicity about it doesn’t help. It just ratchets up feelings in the agency.” He concluded with a settlement offer in which the government would keep half the money.

The Institute for Justice, which stood up for McLellan, has done a video:

In other forfeiture news, the Senate Judiciary Committee held a hearing on the dangers of forfeiture laws (there to defend the laws: Fraternal Order of Police national president Chuck Canterbury, seen in this space just a few days ago defending police officers “bill of rights” laws) And the Maryland legislature has sent a forfeiture reform bill to the desk of Gov. Larry Hogan [Maryland Reporter]

Filed under: , ,

“Police Misconduct: A Special Interest with Special Privileges”

Mike Rappaport at Liberty and Law explores how special interest politics contributes to shielding police misconduct, including the role of Law Enforcement Officers Bill of Rights laws (earlier). More on LEOBR/LEOBoR laws in two articles quoting me: Daniel Menefee, Maryland Reporter/WMAL and other outlets, on prospects for reform of the Maryland law; Kris Ockershauser, Pasadena Weekly, citing coverage last year from Jim Miller of the McClatchy papers on California’s tight restrictions on public access to police disciplinary records, which grew in part out of the state’s enactment of the 1976 Public Safety Officers Procedural Bill of Rights Act.

Related: Ross Douthat (New York Times), “Our Police Union Problem“. And for everyone who, like me, has been noticing the parallels between bad cop entrenchment and teacher tenure, Charles Lane wants to call our attention to the pending Supreme Court case of Friedrichs v. California Teachers Association, on dues [Washington Post, earlier and more on Friedrichs]

Filed under: , , ,

“The pocket knife found on him was closed and legal, she said…..’no crime had been committed’”

As surmised earlier, Maryland knife law has emerged as an issue in the Freddie Gray story; Gray’s death in police custody has now resulted in the filing of charges against six police officers, the most serious charge, “depraved heart murder,” being leveled against the driver of the police van from which Gray, unbelted, emerged with fatal injuries. [Washington Post] More links on “rough rides” here, here, and here. “The Baltimore police union defended the officers involved…. ‘none….are responsible'” [Baltimore Sun, The Hill, Ed Krayewski/Reason] Some obstacles for the prosecution [Associated Press]

Update, Colin Campbell, Baltimore Sun:

The separate investigations by police and prosecutors have some conflicting findings.

While Mosby said Friday that the officers had made an illegal arrest because a knife Gray was carrying was not a “switchblade,” a violation of state law, the police task force studied the knife and determined it was “spring-assisted,” which does violate a Baltimore code.

More from Twitchy link roundup (investigators have not yet released picture of knife or other information that could help identify model and resolve dispute), Andrew Branca (Baltimore code bans “spring-assisted” weapons not banned under Maryland law; also, reasonable mistake of law on illegality of weapon might still support probable cause finding).

Filed under: , ,

Law Enforcement Officer Bill of Rights laws: time for reform

“I don’t understand how she [Baltimore Mayor Stephanie Rawlings-Blake] can continually say they’re not cooperating,” Michael E. Davey, an attorney for the police union, told The Baltimore Sun on Wednesday. “They are. They did. And they’re lucky they got those statements before I got involved.”

They’re lucky they got those statements before I got involved. That’s a little window into the adversarial relationship between the union representing six Baltimore officers under investigation and city officials charged with determining whether Freddie Gray’s fatal injuries in police custody might have been caused by foul play such as an unbelted “rough ride” in the back of a police van.

Newsweek, and before that the Foundation for Economic Education, have now reprinted a short Cato at Liberty piece in which I describe the operation of Law Enforcement Officer Bill of Rights (LEOBR or LEOBoR) laws, of which Maryland passed the first in the early 1970s, and which have spread to more than a dozen states; in many other localities union contract provisions accomplish some of the same goals. These laws sharply restrain how police forces can pursue misconduct investigations against suspected officers, and officials in Baltimore and elsewhere have repeatedly cited the law as an impediment to investigations of officer misconduct long predating the Freddie Gray incident, including the probe into the enormous scandal of employee misconduct at the state-run Baltimore jail. (I’ve got more at Free State Notes about the local Maryland angle, including the failure of efforts this year in the state legislature to reform the law.)

Radley Balko followed up with a post summarizing my argument and adding an important point, which is that these laws can provide a covert way for departments to sabotage investigations so as to help out fellow officers, by introducing seemingly inadvertent errors that ensure that charges will later have to be thrown out.

In my opinion, conservatives should no more defend LEOBRs than they should defend teacher tenure laws, and for much the same reasons. In response to rising criticism, which has intensified since Gray’s death in custody, police unions have begun a broad effort to shore up support for the laws. The version of my article at FEE, for example, drew a response from a Montgomery County Fraternal Order of Police official which you can read here together with my response.

One oft-heard claim that these laws merely give suspected cops the same rights as other suspected citizens. Don’t miss Ken White’s new post at Popehat blowing that argument to smithereens. Equally laughable is the suggestion from union brass that the laws merely put into effect Fifth Amendment or other constitutional rights. While a few cases from the Warren Court era did invent new constitutional constraints on public agencies’ handling of employee investigations, LEOBR laws go far beyond anything in those cases.

Further reading and listening: Ed Krayewski, Reason; Kojo Nnamdi show; New York Times “Room for Debate” roundtable with Prof. Paul Butler, my friend and former Manhattan Institute colleague Heather Mac Donald (the middle-of-the-roader, in this context) and FOP’s Chuck Canterbury. See also my coverage of correctional officers “bill of rights” laws in Maryland, Pennsylvania, etc. here, here, here, and here.

Filed under: , , , , , ,

April 28 roundup

  • “The makers of smokeless tobacco products like to claim that their products are safer than cigarettes.” Hey, New York Times, that’s ’cause it’s true! [Jacob Sullum]
  • New York Attorney General Eric Schneiderman pursues high-profile case against Standard & Poor’s, accepts $50K contribution from CEO of another credit rating firm [Richard Pollock/Daily Caller, some background]
  • Megan McArdle on child support and the difficulty of replacing social norms with law [Bloomberg View, my recent Cato post and podcast]
  • “Wisconsin Chief Justice Shirley Abrahamson should drop her lawsuit” [Milwaukee Journal Sentinel editorial, earlier; AP (federal judge declines to block law’s implementation while suit is pending)]
  • CVS opposes certification of securities class action, saying government pension managers filing it were influenced by political donations from plaintiff’s law firm [Law360, reg]
  • “Has Conley v. Gibson really been overruled? (And did the Fourth Circuit just tee up the next big SCOTUS case on pleading?)” [Adam Steinman, Civil Procedure Blog, arguing from premises different from mine, on Fourth Circuit’s decision in McCleary-Evans v. Maryland Department of Transportation]
  • The Maryland knife law angle in the Freddie Gray story [Patrik Jonsson, Christian Science Monitor; my post at Free State Notes]

Filed under: , , , , , , ,

Finally, reform of structuring forfeiture — and the farm story that helped

This is welcome news from the U.S. Department of Justice, and rather than try to rewrite I’ll just quote at length what my Cato colleague Adam Bates wrote:

[On March 31] Attorney General Eric Holder issued new guidelines to federal prosecutors tightening the rules for seizing assets for so-called “structuring” offenses.

Under the Bank Secrecy Act, structuring occurs when someone is suspected of arranging their financial transactions as to avoid triggering a report to the federal government by the financial institution. Some of civil asset forfeiture’s most egregious abuses are the result of federal prosecutors utilizing this nebulous statute to empty the bank accounts of unwitting citizens and small businesses who are never charged with any crime or even aware that their transactions are considered illegal.

The new rules require:

1. That structuring seizures against people for whom there is no criminal charge be based upon probable cause that the funds were either generated by unlawful activity or intended for use in anticipated unlawful activity. Alternatively, prosecutors must procure a warrant from a court and with the approval of either the U.S. Attorney (for Assistant U.S. Attorneys) or the Chief of the Asset Forfeiture and Money Laundering Section (AFMLS) (for Criminal Division trial attorneys).

2. That when the prosecutor determines subsequent to a structuring seizure that the government lacks the necessary evidence to succeed at either a civil or criminal trial, the seizing agency must return the full amount.

3. That when a prosecutor seizes property pursuant to suspicion of structuring, the prosecutor must file either a criminal indictment or a civil complaint, or receive an exception from either a U.S. Attorney or Chief of AFMLS within 150 days or else return the seized assets.

4. That all settlements must be complete and in writing. Informal settlements are expressly prohibited.

Here’s the Justice Department memo, and Kent Hoover at the Business Journal chain has more coverage.

I’ve been writing about the outrages of these structuring cases for years, especially the feds’ ambush of Randy and Karen Sowers’s successful Middletown, Md. dairy farm and ice cream maker, South Mountain Creamery. In yesterday’s Washington Post, Rachel Weiner tells how the Sowers’ story “gave civil forfeiture reformers a powerful symbol”, especially after the Institute for Justice got involved. I’m quoted:

“The South Mountain case happened to be one of these that captured the imagination,” said Walter Olson, a blogger for the libertarian Cato Institute who has written about the Sowers case. “Once you’ve bought ice cream for your kids from one of their little trucks, the name sticks in your memory.”

Filed under: , ,

Montgomery County authorities impound kids for walking on street, cont’d

I’ve now expanded Monday’s post into a longer Cato post. Among the new material, it links Petula Dvorak’s excellent WaPo column (“Our rapid march toward police-state parenting has got to end”) in which, to show how far we have moved, she quotes a checklist from a 1979 book on knowing whether your six-year-old is ready for first grade: “Can he travel alone in the neighborhood (four to eight blocks) to store, school, playground, or to a friend’s home?”

Megan McArdle notes “the kind of range of movement that those of us over 30 recall as a normal part of childhood” and names some possibilities of what social forces might have brought about such an extreme shift in attitudes, from cable news (magnifying the very-rare-in-fact peril of stranger abductions) to the lack of daytime “eyes on the street” to the ubiquity of mobile phones and report-possible-abuse lines (“It would be surprising if we lowered the price of being an officious busybody and didn’t get a lot more of it.”)

The Meitiv family has now issued a statement about the episode; they have a pro bono lawyer from Wiley Rein. The police account is here (“the victim children”). More from Lenore Skenazy:

Aren’t prisoners allowed one phone call, or is that just on TV? Because the Meitiv kids were not allowed to contact their parents in the six hours they were held by the authorities.

This is probably as good a place as any to share my personal experience: by around age 9 or 10 in the early 1960s I had the run of downtown Detroit and wandered around by myself to all sorts of attractions there, returning to my mother’s place of work at the end of the business day. That was considered a little precocious and my family was proud of me on that account. Once with some extra money in my pocket I even went into a white-tablecloth Italian restaurant by myself and ordered, ate, and paid for a meal with tip, a story told for years afterward.

P.S.: “This is kind of insane — in Illinois it’s illegal to leave a 13-year-old home alone” [Christopher Ingraham, but see comments below (not illegal in Illinois as such, only potentially so depending on a range of factors)]

Filed under: , , , ,

Montgomery County seizes “free-range” kids again

On Sunday afternoon Montgomery County, Maryland police and Child Protective Services seized the free-range Meitiv children, ages 10 and 6, after their parents had again let them play by themselves at a park. The kids were supposed to return home by 6; the police did not call the by-then-frantic parents until 8 p.m. [WUSA; Lenore Skenazy] Although initial accounts placed the seizure at the park, per tweets Sunday evening by Fox5 journalist Marina Marraco, the kids were walking back from the park and had gotten to within 1/3 mile of home when police intercepted and picked them up pursuant to a 911 call from “a neighbor” who had spotted them walking alone. The Meitiv family had become the center of a national cause célèbre in January when the county charged the parents with child neglect for letting the two kids walk home from a park. In March, CPS found the neglect charge “unsubstantiated” but puzzlingly deemed the parents “responsible” for it anyway.

More from WTTG/Fox5 Washington: parents reunited with kids after agreeing to “sign a temporary safety plan to take them home, which means they are not allowed to leave the children unattended at all. …Police say after a thorough investigation, a decision about whether or not the Meitivs will face charges will be made.” And from Ellen Rowland (“Thoughts on the criminalization of childhood,” earlier this month) and from Petula Dvorak, Washington Post (“Our rapid march toward police-state parenting has got to end,” and don’t miss checklist at the end from a 1979 book on six-year-olds, on first-grade readiness: “Can he travel alone in the neighborhood (four to eight blocks) to store, school, playground, or to a friend’s home?”) (cross-posted at Cato at Liberty in revised and expanded form)

Filed under: ,

New Mexico abolishes civil asset forfeiture

Significant news: New Mexico “Gov. Susana Martinez (R) has signed [into law] HB 560 … effectively abolish[ing] civil asset forfeiture by requiring a criminal conviction before the government can seize property.” [Adam Bates/Cato; Scott Shackford, Reason and more]

Late this afternoon (Monday) I’ll be speaking to an invitation-only group in Annapolis on what state lawmakers should know about the gathering momentum for civil forfeiture reform. If you’re in or near Maryland’s capital city and interested in learning more, contact me.

Filed under: , ,