local government complicity in Identity theft

Identity theft is a state crime.  Yet …

Louisiana state courts are a veritable goldmine for the identity thief. There are no rules, at least on the criminal side, that require the redaction of social security numbers, driver license numbers, etc., from filings made in criminal proceedings. If you’ve been prosecuted, all of your information…your name, address, social security number, and often driver license number, are all in the public record. Anyone can access that information.

That DUI prosecution can cost you a lot more than you know.

Federal courts and some other state courts have redaction requirements. It’s time for the Louisiana state court system to step up. Else, isn’t it apart of the theft itself?

Meanwhile, what can you do?  If you’re involved in any litigation, civil or criminal, in a court that does not have rules promulgated requiring that your SSN must be redacted, at least to the last four digits, make one of your first motions a request for such, BEFORE anything is filed containing your digits.

Here is a link to a legal blog from Oklahoma that addresses the topic.

Here is a link to a site that monitors privacy rights; it lists by state the myriad rules.  See also this site, NCSL.  Louisiana doesn’t have any rules that require redaction in court filings. According to NCSC, there have been federal laws proposed to goad states into protecting privacy, but I don’t see where any have been passed into law.

The Louisiana Constitution expressly declares privacy and individual dignity as protected rights. Silence beyond words.

Kathryn S. Bloomfield

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Parolees and Fourth Amendment Rights with Link to Oral Argument before the Ninth Circuit

Parolees and Fourth Amendment Rights with Link to Oral Argument before the Ninth Circuit

This is a link to oral argument before the Ninth Circuit in a Section 1983 case brought by a woman and her child, whose home was raided by federal agents, state police officers, city police officers, and county sheriff deputies, under the guise of a “parolee” check up.  The purported parolee was not, in fact, on parole; he was in prison.  The officers relied on a list of names and addresses that was three months old.  Stale information.  The opening brief is here.

I argued against an assistant city attorney, a deputy county counsel, a deputy state attorney general, and an assistant United States Attorney.  As the appellant, I opened and after the other side (some four or five attorneys argued, I closed, starting at time mark 49:22).  Enjoy listening to the government attorneys all point the fingers at the others’ clients.  The it’s not my job two step shuffle; or “passing the buck,” as Judge Brunetti commented.

Ms. Motley and her child ultimately prevailed, with Fletcher and Pregerson ruling in their favor.

practice note:  sometimes, it hurts to know your case too well.

practice pointer:  write the damn book

practice pointer:  did Thomas just undermine the entire line of fourth amendment law?  June 20, 2016

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Heck v. Humphrey and the SIS

Training Day:

These are two consolidated appeals from two district court cases, Cunningham v. Gates, No. 96-02666-CBM and Soly v. Gates, No. 96-4157-CBM, that arose out of the shooting of persons by members of a Los Angeles Police Department (LAPD) squad known as the Special Investigations Section (SIS), which occurred outside Los Angeles in Newbury Park, Ventura County, California on June 26, 1995.

The deadly incident started with a long-term surveillance by SIS members of Robert Cunningham and Daniel Soly (for whom police had information there was an outstanding warrant of arrest), who had been positively identified to the police as the perpetrators of prior specific robberies by a reliable informant to the LAPD.  Under direct SIS surveillance Mr. Cunningham and Mr. Soly drove out of Los Angeles and robbed Southwest Liquor and Deli, making off with cigarettes and a beer, and the incident culminated in the SIS cornering Messrs. Cunningham and Soly in their parked car, in the dark, admittedly not announcing themselves as police officers, and a shootout, in which SIS members shot each other, shot Mr. Soly to death and shot Mr. Cunningham four times in the back, leaving him paralyzed.

READ the brief here

The above is an excerpt from my appellate brief.  I think this was my first shot at Heck at the federal appellate level.  Heck v. Humphrey is an opinion, penned by Scalia, that wreaked some havoc at the district court level for plaintiffs, injured by government officers, but who also found themselves convicted or facing conviction.  I threaded a needle in a haystack.  Ultimately, the Ninth Circuit allowed the survivors’ claims to proceed, but found the paralyzed young man’s claims were barred by Heck v. Humphrey, the nexus between the use of force and the crime for which he was convicted was just too close to parse.

Myriad issues arose in this case, both at the district court and on appeal.  The intersection of federal habeas corpus relief and federal civil rights law.  Standing at the crossroads was the Special Investigations Section of the LAPD.  To their right was a dead young man.  To their left, a paralyzed young man.  Some cigarettes and a beer.  And a couple of wounded officers—shot by their fellow officers.  Upon arrival at the blood bath, the Ventura County Sheriff’s Department arrested everyone, including the officers.

The brief is a bit tedious as the government was taking every shot it could to escape any responsibility and liability.  But it is chock full of authority on Heck, on rules of accrual, on the intersection of Heck and federal habeas, on dicta, on collateral estoppel, and additional issues.

Another brief in opposition to a motion for summary judgment in yet another subsequent SIS death case is here: figueroa.4-17-02 OPP MSJ 1

Kathryn S. Bloomfield

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2016 Louisiana Legislative Agenda

It appears some legislators are working to introduce progress to Louisiana, including in areas such as criminal justice reform.  At a glance, there are proposed laws to raise the juvenile offender age to 18.  Of course it should be.  A 17 year old is still a child.  Far too often at the public defender’s office, I stood up for a 17 year old.  It also appears there are proposed laws to address the systemic bias in our criminal justice system and to address the unnecessarily ever increasing prison population among Louisianians.  Equal pay also is being addressed.

For information and links to proposed bills, check out Equality Louisiana

Kathryn S. Bloomfield

3/17/2016  (Happy St. Patrick’s Day)

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Prosecutorial Immunity is NOT Absolute

There is a myth often circulated….that state and local prosecutors enjoy an impenetrable and absolute immunity against liability for wrongdoing in their work as prosecutors.  It’s a myth.  While prosecutorial immunity is broad, it is not absolute, at least, not until a certain juncture in the criminal investigation is reached.  In short, the cloak of prosecutorial immunity does not even attach unless and until the prosecutor has probable cause to proceed with a criminal prosecution.

This limit was well-delineated by the Supreme Court in Kalina v. Fletcher, 522 U.S. 118 (1997). As the Court explained:

In Burns, the provision of legal advice to the police during their pretrial investigation of the facts was protected only by qualified, rather than absolute, immunity. 500 U. S., at 492-496. Similarly, in Buckley, the prosecutor was not acting as an advocate either when he held a press conference, 509 U. S., at 276-278, or when he allegedly fabricated evidence concerning an unsolved crime. With reference to the latter holding, we explained:

“There is a difference between the advocate’s role in evaluating evidence and interviewing witnesses as he prepares for trial, on the one hand, and the detective’s role in searching for the clues and corroboration that might give him probable cause to recommend that a suspect be arrested, on the other hand. When a prosecutor performs the investigative functions normally performed by a detective or police officer, it is ‘neither appropriate nor justifiable that, for the same act, immunity should protect the one and not the other.’  Hamptonv. Chicago, 484 F.2d 602, 608 (CA7 1973) (internal quotation marks omitted), cert. denied, 415 U.S. 917 (1974). Thus, if a prosecutor plans and executes a raid on a suspected weapons cache, he ‘has no greater claim to complete immunity than activities of police officers allegedly acting under his direction.’ 484 F.2d, at 608—609.” Id., at 273—274.

These cases make it clear that the absolute immunity that protects the prosecutor’s role as an advocate is not grounded in any special “esteem for those who perform these functions, and certainly not from a desire to shield abuses of office, but because any lesser degree of immunity could impair the judicial process itself.” Malley, 475 U.S., at 342. Thus, in determining immunity, we examine “the nature of the function performed, not the identity of the actor who performed it.”  Forrester v. White, 484 U.S. 219, 229 (1988).

Kalina, 522 U.S. at 126-27 (emphases added).

I have written rather extensively on the limits on prosecutorial immunity and do not want to bore the reader with a lengthy brief.  It is sufficient to say that Kalina is alive and well.  As recognized by the United States District Court for the Eastern District of Louisiana, the prosecutor who “sought out an arrest warrant against Boyle and acted as an affiant before the justice of the peace” to obtain the arrest warrant and ultimate seizure of Boyle, is NOT entitled to a dismissal of the Section 1983 lawsuit brought against him in his individual capacity for wrongful seizure in violation of the Fourth Amendment of the United States Constitution.  Boyle v. Reed, Docket No. 14-855, Eastern District of Louisiana (Dec. 31, 2014).

I discuss prosecutorial immunity and other aspects of prosecutorial misconduct in another post.

Kathryn S. Bloomfield

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Reform of Fine and Fee Practices Demanded by DOJ

The Department of Justice issued this press release on March 14, 2016.  Its review into Ferguson likely was the catalyst.  For far too long and across too many jurisdictions, harmful and often unlawful practices are used to enforce collection of court fines and fees, and effectively create debtors’ prisons. The DOJ sent letters across the United States, to local courts.  Addressing the courts’ obligations regarding enforcement of court fines and fees.  Link is contained within the press release below to the letter.
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Department of Justice
Office of Public Affairs
FOR IMMEDIATE RELEASE
Monday, March 14, 2016

Justice Department Announces Resources to Assist State and Local Reform of Fine and Fee Practices

The Department of Justice today announced a package of resources to assist state and local efforts to reform harmful and unlawful practices in certain jurisdictions related to the assessment and enforcement of fines and fees. The resources are meant to support the ongoing work of state judges, court administrators, policymakers and advocates in ensuring equal justice for all people, regardless of financial circumstance.

“The consequences of the criminalization of poverty are not only harmful – they are far-reaching,” said Attorney General Loretta E. Lynch. “They not only affect an individual’s ability to support their family, but also contribute to an erosion of our faith in government. One of my top priorities as Attorney General is to help repair community trust where it has frayed, and a key part of that effort includes ensuring that our legal system serves every American faithfully and fairly, regardless of their economic status.”

The package, which was sent to state chief justices and state court administrators throughout the country, includes the following elements:

  • Dear Colleague Letter from the Civil Rights Division and the Office for Access to Justice to provide greater clarity to state and local courts regarding their legal obligations with respect to the enforcement of court fines and fees.  The letter addresses some of the most common practices that run afoul of the U.S. Constitution and/or other federal laws, such as incarcerating individuals for nonpayment without determining their ability to pay.  The letter also discusses the importance of due process protections such as notice and, in appropriate cases, the right to counsel; the need to avoid unconstitutional bail practices; and due process concerns raised by certain private probation arrangements.
  • $2.5 million in competitive grants through the Bureau of Justice Assistance (BJA) to state, local or tribal jurisdictions that, together with community partners, want to test strategies to restructure the assessment and enforcement of fines and fees.  The grant program, titled The Price of Justice: Rethinking the Consequences of Justice Fines and Fees, will provide four grants of $500,000 to agencies and their collaborative partners to develop strategies that promote appropriate justice system responses, including reducing unnecessary confinement, for individuals who are unable to pay fines and fees.  BJA will award an additional grant of $500,000 to a technical assistance provider.  For agencies interested in applying for this funding opportunity, BJA will host an informational webinar on March 28, 2016, at 11:30 a.m. EDT to describe the background, key concepts and requirements of the solicitation.  To register, please follow this link[external link].
  • Support for the National Task Force on Fines, Fees and Bail Practices, which is led by the Conference of Chief Justices and the Conference of State Court Administrators.  The task force is being funded by BJA and is also supported by the State Justice Institute.  It is comprised of leaders from the judiciary, state and local government, the advocacy community and the academy.  The task force will draft model statutes, court rules and procedures, and will develop an online clearinghouse of best practices.  Department officials will also serve as ex officio members of the task force.
  • Resource Guide[external link] that assembles issue studies and other publications related to the assessment and enforcement of court fines and fees.  The resource guide, compiled by the Office of Justice Programs Diagnostic Center, helps leaders make informed policy decisions and pursue sound strategies at the state, local and tribal levels.

Today’s announcement follows a seminal two-day convening[external link] held by the Justice Department and the White House in Washington, D.C., on Dec. 2 and 3, 2015.  Judges, court administrators, researchers, advocates, prosecutors, defense attorneys and impacted individuals came together to discuss challenges surrounding fines and fees.  The convening made plain the existence of unlawful and harmful practices in some jurisdictions and highlighted a number of promising reform efforts already underway.  At the meeting, participants and department officials also discussed ways in which the Justice Department could assist courts in their efforts to make needed changes.  Participants specifically asked the department to provide legal guidance to state and local actors; to highlight and help develop model practices; and to provide resources for local reform efforts.

The Justice Department is committed to reforming justice-system practices that perpetuate poverty and result in unnecessary deprivations of liberty.  The department discussed many of these practices in its March 2015 report on the investigation of the Ferguson, Missouri, police department and municipal court.  As discussed at the December 2015 convening, however, these practices can be found throughout the nation.  And their effects are particularly severe for the most vulnerable members of our communities, often with a disproportionate impact on racial minorities.  The resources released today are aimed at reforming these practices and mitigating their harmful effects.

Fines and Fees Cover Letter

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Meanwhile, the state of Louisiana, and its myriad local political subdivisions, continues to be, I believe, the sole state to fund its indigent defense system via fines and costs imposed via the criminal courts.  Let us hope that these times are a changing.  PARITY is EQUALITY and all are equal under the law.  The State MUST balance the scales of justice and honor CRIMINAL JUSTICE by providing parity between state prosecution and state indigent defense.  Anything less is discriminatory and unjust.

 

Kathryn S. Bloomfield

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Entrepreneurs and Artists

This is a post that I will be augmenting over time.  I hope to post questions and concepts to help get the entrepreneur and artist thinking about themselves, as a business.  I will also be adding links to online sites that offer valuable information and materials.  I post this now simply to introduce the concept that entrepreneurs and artists, particularly those first starting out and getting their passion and work organized for business, need legal guidance.  Legal assistance isn’t cheap.  Heck, law school and thirty years of practice neither came easy, nor cheap.  However, there are some rudimentary questions and steps aspiring businesses can take early on. And, if you’re already blowing and going, maybe stop and take some time to think the business through.  Oh, and if you haven’t already, write a business plan.

This post is about basics.  The fundamentals.  It is to get not just you thinking, but also myself.  It’s an outline of ideas and will be augmented and modified as time goes by.

  1.  Most folks know that a decision has to be made on the business organization form.  Will you operate as a sole proprietor?  Or form a limited liability company?  Or perhaps a Sub-S or C corporation?
  2. Name.  What is the name of your business.  Names don’t earn protection in the intellectual property sense simply by being the registered name of the business entity, LLC or Inc.  Do you think the name of your company is valuable and should it be protected?  Have you considered trade name protection?  What of your company logo?  Do you think it should be protected?  Have you considered trademark protection?
  3. OK, now you have an LLC.  You may have downloaded forms from the internet, filled them out, filed them and paid your fees to the Secretary of State.  Did you consider by-laws or an operating agreement to regulate internal matters? Have you obtained a federal tax i.d.? Do you have a business bank account?
  4. What about local licenses and permits?  Are any required?
  5. What kind of business are you in?  It seems, no matter your business, folks and potential and hopefully future clients often seek your input and guidance.  They want your ideas.  Do you engage on a handshake after the initial consultation?  Do you think your ideas and experience are valuable and merit protection?  Would a non-disclosure and confidentiality agreement help protect your work? What about copyright?  Have you prepared a design or detailed analysis of a resolution to a problem?  Do you think that work is valuable and do you want to protect it? What do you want should someone run off with your ideas and plans?  How do you protect yourself? What type of intellectual property protection do you need?  Do you have a website? Have you protected it?  While nothing is one hundred percent iron clad guaranty of no such issues, there are steps you can take.
  6. How do you plan to be paid?  Do you extend credit? Are clients willing to pay a deposit?  Should it be refundable, either in whole or part?
  7. What about business liability insurance?  OK, you say, you’re an LLC, thus, you’re shielded from liability.  Right?  Maybe.  If your LLC is undercapitalized or its separateness was disregarded in practice, that shield fails.  No matter what, business liability insurance should be a prime consideration.
  8. Congratulations. You’ve met with a potential client and made a proposal and after some back and forth, you’ve come to an agreement.  How do you plan to memorialize that agreement?  Do you rely on handshakes?  Is your work such that a standard contract can be used across myriad customers?  Where are you flexible in terms? Do you consider using an addendum to detail deal specific terms or do you plan to draft a new contract for each business deal?
  9. My father was of an era where a man’s word was his bond.  It seems those days no longer exist.  What with an ever changing economic climate, minds, and moods, it makes nothing but plain old common sense to be clear with yourself and your clients what is expected of each side.  It also gives everyone a sense of security…each party knows where they stand.
  10. The more you do business, the more you learn.  And, the more you learn, the more you know.  And, we all learn from mistakes.  Do not take any failed deal as a failure.  It is an opportunity.  Take the time to perform an exit interview, even from failed deals.  Write down what worked, what didn’t, why it worked or didn’t, etc.  These will give insight into how to do what you do, business wise, better next time.
  11. As your business grows, and you start to hire employees or independent contractors, myriad issues arise. Employment law is a specialization, whether in fact, if not in law. Lots of folks think they can just call someone an independent contractor and they are.  Not so fast.  There are IRS rules governing what is and what is not an independent contractor.  In a nutshell, the more power you have to dictate time, place, and manner of work, the likelihood is you have an employee, not an independent contractor.
  12. As I indicated at the outset, this is a rough outline.  I shall be editing and adding information, particularly, links, to reading material available online.  At this juncture, I note that Nolo Press (a publishing company … no lawyers!) has a plethora of legal guides designed for the non-lawyer.  Some of them are excellent.  I read two Nolo guides when I opened a consumer bankruptcy practice years ago.  While hardly definitive, and certainly, not authoritative in court, I found them well-written and excellent guides to the basics. There are also professional associations, such as AIGA, that maintain websites that are full of information, guides, and links to other resources.  For mere example, AIGA has an overview of contract proposals designers extend to potential clients, and suggested issues and concerns to be considered, as well as contractual resolution of these concerns. The fashion industry, too, via associations and trade organizations, maintains myriad websites that address topics in areas that are useful to anyone in the business of creating an idea, turning it into a marketable service or product.  I have several links which I will be adding. There may be local and semi-local resources available to you.  For mere example, here in northwest Louisiana, we have Works in Progress Louisiana, a local non-profit whose mission statement is to assist creative entrepreneurs translate artistic endeavors and talents to business.
  13. As always, think ahead, look forward, and never stay in a box.

Stay tuned.  Send me questions.  The more questions you send, the more I know what folks want to know.  If you know of a good resource, send me information.

Kathryn S. Bloomfield

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