Lawyer 2 Lawyer

Justified Shooting or Police Misconduct? A Year In Review After Ferguson

Names like Michael Brown and Eric Garner bring forth opinions on both sides of the police power debate. One side cries abuse of power while the other claims self defense. It’s been more than a year since Michael Brown was killed in Ferguson and since that time, there have been other deaths at the hands of the police in cities like New York and Cleveland. Despite criminal proceedings, government investigations, riots, and political discourse, the nation has not returned to equilibrium.

In this episode of Lawyer 2 Lawyer, hosts J. Craig Williams and Bob Ambrogi interview Dean Erwin Chemerinsky from University of California, Irvine School of Law and Sergeant John Rivera from the Dade County Police Benevolent Association. Together they discuss the merits of using Ferguson to analyze police procedures, culpability of elected officials, and growth of murder rates around the country. In addition, they talk about attacks on police as well as the use of military equipment. Tune in hear about body cams, protests by Black Lives Matter, and the benefits of community-based policing.

Erwin Chemerinsky is the founding dean, distinguished professor of law, and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law. His areas of expertise include, but are not limited to, constitutional law, federal practice, and civil rights. Erwin is a renowned author of eight books including The Case Against the Supreme Court. He has argued before the nation’s highest courts and has been counsel to detainees in Guantanamo Bay Detention Camp in the Guantanamo Bay Naval Base in Cuba. He is a regular commentator on legal issues before the national and local media.

Sergeant John Rivera is the president of the Dade County Police Benevolent Association. He has served the Miami Dade Police Department since 1976 where he’s worked in their Organized Crime Bureau and has served as lead investigator in the Mariel Task Force. In addition, John hosts the Rapid Response Radio Show on 880 AM and is regularly featured on national and local television for law enforcement issues.

Special thanks to our sponsor, Clio.

View transcript

 

Lawyer 2 Lawyer: Justified Shooting or Police Misconduct? A Year In Review After Ferguson – 9/5/2015

 

Advertiser: Media placed a huge role in this. We keep talking and acknowledging about Ferguson. We know now that he was not shot in the back. We know now that he wasn’t on his knees. We know now that he didn’t have his hands and yet we still use that as an example. We need to move off of Ferguson, let’s get another case.

 

I don’t accept that what went on in Ferguson was a justified use of force. I understand there’s a grand jury there to not to indict. But I think when you look at all the facts of Ferguson, it is a very troubling city.

 

Welcome to the award-winning podcast Lawyer to Layer, with J. Craig Williams and Robert Ambrogi, bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.

 

J. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. This is Craig Williams coming to you from sunny Southern California. I write a blog called May it Please the Court.

 

Bob Ambrogi: And this is Bob Ambrogi coming to you from – I get to say it this time – sunny Boston, Massachusetts; I don’t get to say that much. I write a blog called Lawsites.

 

J. Craig Williams: Well Bob, before we introduce today’s topic, we’d like to take a moment to thank our sponsor, Clio, which is an online practice management program for lawyers at www.GoClio.com.

 

Bob Ambrogi: And Craig, before we get started today, I want to point something out which is that it was ten years ago this week that we broadcast our first show. Our first show went up on I think August 31st of 2005. And coincidentally, do you remember who our guest was on that first show? We didn’t plan this at all.

 

J. Craig Williams: As a matter of fact I do, and he is a guest again today.

 

Bob Ambrogi: That’s right. Erwin Chemerinsky was one of our first two guests on an inaugural show along with Mike Greco who was then a president of the American Bar Association. So happy anniversary to you, Craig, and we’re thrilled to have Erwin back as well. Today we’re going to be talking about the issue of police violence, public perceptions about police violence. It was just about a year ago today that we did a show about this and it was about a year ago that the incidents happened in Ferguson, Missouri that resulted in officer Darren Wilson shooting Michael Brown. There was a public uproar, a nationwide debate on the use of force of police; in some cases of military force by police. It was a loud discussion about that then and ultimately the court side system sided with office Wilson but who later retired in part due to the events of the case. But this question of police shootings continues to permeate the public discussion, it continues to be in the news. Just today there’s been news about another shooting by police; a lot of mixed reports coming out of what happened at this point, but it’s a story that just doesn’t go away.

 

J. Craig Williams: And it’s also a story that involves citizens apparently gunning down cops as well, so there’s two sides to this story and here to talk about that today with us is Erwin Chemerinsky, as you mentioned Bob, our ten year anniversary guest and back for today’s anniversary so that’s great. He is the founding dean, distinguished professor of law, and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law. His areas of expertise include, but are not limited to, constitutional law, federal practice, and civil rights. Erwin is a renowned author of eight books including The Case Against the Supreme Court. He has argued before the nation’s highest courts and has been counsel to detainees in Guantanamo Bay Detention Camp in the Guantanamo Bay Naval Base in Cuba. And he is a regular commentator on legal issues before the national and local media. Welcome back to the show dean Chemerinsky.

 

Erwin Chemerinsky: It’s wonderful to be with you and happy anniversary.

 

Bob Ambrogi: Thank you. Also joining us today is Sergeant John Rivera. Sergeant John Rivera is the president of the Dade County Police Benevolent Association. He has served the Miami Dade Police Department since 1976 where he’s worked in the Organized Crime Bureau and has served as lead investigator in the Mariel Task Force. In addition, John hosts the Rapid Response Radio Show on 880 AM radio and he is regularly featured on national and local television as a commentator on law enforcement issues. We’d like welcome you to Lawyer 2 Lawyer, Sergeant John Rivera.

 

Sergeant John Rivera: Hi guys, how are you? Thank you for having us on the show.

 

Bob Ambrogi: Thanks for being here. One of the things as Craig alluded to, this is a two sided issue. There are shootings by police and shootings of police. But the statistics seem to be suggesting that this year is going to be on record as the worst in decades for the numbers of police shootings. The Washington Post had reported in July that some five hundred people had been shot and killed by police in the first six months of 2015. I think they’re now saying that number is reached about 660 people who have been shot by police, just 87 in just the last thirty days. At the same time, the number of shootings of police has actually gone down this year according to the numbers I’ve read. So what’s going on here? To what do we attribute this rise in police shootings over the recent years? Dean Chemerinsky, let me start with you.

 

Erwin Chemerinsky: I don’t think there’s any easy explanation and I would never make too much of one year’s statistics. There’s always a change that it’s just anomalous. I think it’s important to know that violent crime and murder are up across the country. In light of that, it’s not surprising that all kinds of violent crime up, including police shootings. Also, there’s much more focus on police shootings in the last year than there’s been before. That can change reporting when something is receiving more attention, there’s more reporting of it. So there might have been a number of incidents that didn’t get reported in the way they are now and that could also explain the statistics.

 

J. Craig Williams: John, what’s your sense of what’s going on here in the podcast? Why are there so many cops that are shooting citizens and especially unarmed citizens? What’s the issue?

 

Sergeant John Rivera: Well, I’ve been saying for a couple of years now that our streets have been getting meaner and more violent day by day and especially with the proliferation of firearms out on the streets in the hands of bad guys. Our streets are meaner. As a matter of fact, just yesterday down here locally in the Dade Broward area in Florida, there was a trooper who stopped a car and the passenger attacked him. The passenger. And the driver was just watching almost as if he was watching a movie in the theaters. That’s what police officers face every day. Now while there’s been some attention, maybe more so than in the past about police shootings – and I think we’re going to see more attention on attacks on police officers as well. As a matter of fact, yesterday we had a situation where an Arby’s clerk refused to serve a police officer who was going through a drive through a sandwich, just for the mere fact that it was a police officer. So there’s no doubt that there’s this sentiment and there’s an attack on law enforcement. And many elected officials are timid to stand up for law enforcement.

 

Bob Ambrogi: Is there a problem here in terms of the police? Sergeant, you’re portraying this as attributable in part to a rise in violence on the streets, but is there a problem with training and education of police or is there a problem with the way police are policing their neighborhoods from where you see it?

 

Sergeant John Rivera: I am a big proponent of training, so I will always submit to you that I don’t think you can train us enough, and I think that departments that put more emphasis and more resources in training are the departments that have lesser problems. That being said, I will tell you that media plays a huge role in this and nobody seems to criticize media. But for Ferguson, we keep talking that nauseum about Ferguson. We know now that he was not shot in the back. We know now that he wasn’t on his knees. We know now that he didn’t have his hands, and yet we still use that as an example. We need to move off of Ferguson. Let’s get another case. If you want to beat something at nauseum, let’s get the cases from South Carolina or whatever. But we keep using cases that have already been declared justified. We seem to – on one hand – say we believe in the rule of law in the American system, and yet we sort of deviate from that and we say look, there’s a problem in Ferguson. No there wasn’t a problem in Ferguson, we know that now, yet we keep mentioning that nauseum as if there was a problem when we know that it was justified. We need to get off of Ferguson and find another case.

 

Erwin Chemerinsky: I disagree.

 

Sergeant John Rivera: Alright, well that’s what makes America great.

 

Erwin Chemerinsky: I apologize for interrupting.

 

Bob Ambrogi: Erwin?

 

Erwin Chemerinsky: Of course it is, and I think that – while I agree with much of what you said – I don’t accept that what went on in Ferguson was a justified use of force. I understand that the grand jury there chose not to indict. I was very critical of the procedure and the substance of the grand jury decision. But I think when you look at all of the facts of Ferguson, it is a very troubling shooting. When you look at what went on in Staten Island, when the chokehold killed Eric Garner, it is a very troubling example of police killing. And the South Carolina incident you allude to, at least so far is we know from the videotape, it looked to be a cold blooded killing by the police officer. You and I would agree that police officers have an enormously difficult time. Their job in the field is so hard, and there are times when they have to use force and have to be careful about second guessing them. But when I look at Ferguson, when I look at Staten Island, when I look at South Carolina, to me at least, there is strong evidence that these were unjustified shootings, unjustified killings, excess use of police force.

 

Sergeant John Rivera: I’ll interrupt you and I’m glad that we can disagree, but here in the American system, if you know the grand jury and you read the report – a lot of people talk about Ferguson and never read the report, I did read the report. All of the witnesses were African American. They were people from that community and they testified in a way that exonerated the police officer. So if we’re not going to accept that, we’re never going to accept anything other than the final outcome of what certain people want in this community and that’s unacceptable. That’s completely un American.

 

Erwin Chemerinsky: It’s not my point.

 

Bob Ambrogi: I think part of the reaction to Ferguson wasn’t part of the reaction of Ferguson due to the response when people in that community became upset over the shooting and began to protest. The response by the police was militaristic to a degree. It brought in heavy tanks and armored vehicles and acted as though they were responding in a military kind of a situation and there seemed to be a feeling that that was further evidence, I guess, of overreaction by police to a situation, a lack of understanding of a community to a situation.

 

Erwin Chemerinsky: I think that’s a good point, I just want to go back and say that I’ve read the grand jury materials of Ferguson. I read the statements of witnesses that would support the officer but also statements from witnesses that make clear, I think that the officers used excess of force. We could look at that evidence but I don’t think it’s fair to say that some witnesses supported the officer’s story but that’s what most – let alone all – witnesses did. And of course, then there’s the question of what happened when there was unrest in Ferguson and it was a very militaristic response. I think the key point where we would agree is while Ferguson is important, it’s not the whole story. And the story isn’t a new one. Excess of police force, especially directed at African American men, men of color, is not a new problem. In 1968, the Kerner Commision on the Cause and Prevention of Urban Violence talked about all of the major riots in the 1960’s were precipitated by police violence. You can go thorough study after study that shows that if whites and blacks are engaged in the same behaviors, say if the same traffic violations, blacks are more likely to get stopped. If whites and blacks are stopped, blacks are more likely to get arrested. If whites and blacks are arrested, excess of police force are more likely to be directed at blacks. When they’re charged for the same crimes with the same prior history, blacks are more likely to be charged with the more serious offenses. When sentencing happens holding all else equal, blacks are likely to get larger sentences. So I think we have to look at this as part of a larger problem of race in the criminal justice system and it’s a serious one.

 

J. Craig Williams: I think everybody-

 

Sergeant John Rivera: If your argument does hold true, then the solution I think is very simple. You use only African American police officers in African American communities, and you only use white officers in white communities and you only use Hispanic officers in Hispanic communities. That way you eliminate the racist part. But you know what? You know that’s not factual and let’s go back to Ferguson, let’s digest it a little bit more. We keep talking about police, the militarization of the police. Folks, what we’re missing here, what every one of us are guilty of giving these people a scapegoat, we’re giving them an out. What happened in Ferguson wasn’t necessarily that the police were the bad guys per say. It’s the elected officials who had a gap in their budget. They used the police force to really torture the black community with traffic citations you’re already creating. But who’s the face that we attack as the police? Those elected officials got off scot-free. And you know who made the decision to bile the military equipment? Not the police officer on the street. It was the elected officials. Ferguson was created as a result of the elected officials inability to have a proper budget and the elected officials’ decision to have those types of equipments and other factors from outside that came into Ferguson because thugs from other areas came. But who do we blame? We don’t blame the elected officials, we always give them a pass. We always give them a pass. Just like we did in Vietnam, when our military went over there, we crapped on the military but we did not hold Congress’ feet to the fire.

 

Erwin Chemerinsky: You’re absolutely right.

 

Sergeant John Rivera: Just like we did so with the secret service. People are now walking into the White House. We blame secret service for the lack of security, we don’t blame Congress for cutting their budget.

 

J. Craig Williams: Well, we’ve done a pretty good job of analyzing some of the issues. But before we move on to our next segment, we’re going to take a quick break to hear a message from our sponsor.

 

Advertiser:

Kate Kenny: Hi. My name is Kate Kenny from Legal Talk Network, and I’m joined by Jack Newton, President of Clio. Jack takes a look at the process of moving to the Cloud. Now how long does it take to move to the Cloud, and is it a difficult process?

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Jack Newton: Thank you, and if you’d like to get more information on Clio, feel free to visit www.goclio.com. That’s G-O-C-L-I-O.com.

 

J. Craig Williams: And welcome back to Lawyer 2 Lawyer. This is Craig Williams and with us today is dean Erwin Chemerinsky from the University of California Irvine School of Law, and sergeant John Rivera from the Miami-Dade Police Department. In our last segment we were talking about identifying the significant racial and a whole host of issues that caused these situations that we’ve been talking about with police killing citizens and citizens killing police. But I’d like to turn for a moment, Erwin, and ask what do you think history teaches us on how to resolve these issues?

 

Erwin Chemerinsky: I think history teaches us that these are incredibly difficult issues. I certainly agree that the problem isn’t just with the police, the problem is with elected officials who direct the use of the police. But it’s also important to remember that in Ferguson, it was a white officer who killed an African American man and it’s the same thing that happened in so many of these other cities. I think we need to have systematic efforts in police reform. I agree very much that training is key, but we need more than that. I think we need, for example, it’s now happening in Los Angeles – body cameras on officers so we have clearer monitoring of what happened. I think we need change in the legal system to make it much easier for victims of abuse to sue the officers responsible in the cities that employ them.

 

Bob Ambrogi: Erwin, you placed in an op-ed that you wrote last year, you attributed some of the issues here to the supreme court. You had an op-ed in the New York Times saying how the supreme court protects bad cops. Does there need to be a constitutional change or is there a new court coming forward on this?

 

Erwin Chemerinsky: It’s not a constitutional change, it’s about the way the court has interpreted statutes. And so it can be changed if the court alters its interpretation of those laws or by Congress. The key statutes here is one that was adapted right after the Civil War. It’s called Title 42 United States Code Section 1983. And it says you can sue anyone acting under code of law who violates the constitutional laws of the United States. The supreme court has said that excess of police force violates the 4th Amendment to the Constitution. But the supreme court has said that local governments can be sued in this statute, only if it is proven that their policy or custom caused the constitutional violation. So if a police officer unjustifiably killed somebody, the city’s liable, only if proven that city policy had caused it. In every other context I can think of in the law, an employer is liable for what an employee does in the scope of his or her duties. And the supreme court has made it very difficult to sue police officers even when they use grossly excess of force.

 

Bob Ambrogi: Sergeant Rivera, there was a police chief out of Philadelphia this week who was quoted in the news as saying, body cameras make good cops, great cops, and make marginal ones follow the rules. What’s your position on body cameras?

 

Sergeant John Rivera: Well, I think that’s the flavor of the month right now, but I don’t know that’s going to be the cure all. What you’re going to have is police officers are going to back off just like you saw in Baltimore then the murder rate goes up 55% and of course they’re going to blame the cops again for that stuff. NFL has 30 cameras on every play, and they sometimes don’t get it right, even with all the cameras on there. These cameras are not the cure all. These cameras, and depending on how they use the cameras, whether the camera has a night vision, has capabilities, we’re always going to criticize the officer. You should have seen that because the camera caught peripheral view. The human eye doesn’t do that and the human brain works and the training that the officer has is if I have a crowd of 20 or 30 people and I perceive one guy in the red shirt as to be the threat, I go into tunnel vision. I look at that threat. There might be another guy in a blue shirt that might be a bigger threat, but for whatever reason, my brain focused on the guy with the red shirt. But the camera’s going to have the panoramic view. Then you’re going to have all kinds of lawyers and media people that are going to be the Monday morning quarterbacks, “Oh, he should have seen that, he should have seen this.” No, you don’t know that, because you’re not in that situation. And it is so easy from those of us that sit behind a desk with white shirts and ties in air conditioning, not realizing the situation that’s going on the streets. You don’t have the human senses. Sometimes just training tells you the way a person clenches their fists, the camera may not capture that, the way a person looks and acts. Those are all training things that common sense and human nature dictate that the camera is impossible to ever capture. So the camera is a good tool but not the cure all.

 

J. Craig Williams: There’s been a policy proposal put out by the protest organization Black Lives Matter, it has ten different lieutenants. They propose to end broken policing, community oversight, limit the use of force, independently investigate and prosecute, community representation and others. Erwin, have you seen that? And if so, what’s your comment on it?

 

Erwin Chemerinsky: I have an I think many other proposals are desirable. In terms of cameras, – which I just want to respond to – I met just this morning with representatives of the Los Angeles Police Department that is pointing to cameras. What they said is they’re already finding that cameras do change police behavior in a positive way. The police officers are less likely to be overly aggressive, less likely to use profanities when they know they are being watched. They have not seen that police officers are unduly restricting themselves and this is coming from top officials in the LAPD. In terms of some of the other proposals, all of the studies show that community based policing is desirable. I think independent investigation and prosecution of police shootings is desirable. I wrote a report on the LAPD in the year 2000 which I found that the problem with leaving investigation and prosecution to the DA’s office is that the district attorney’s office has too close a relationship to the police officers. They rely on the police officers on all of their cases and it would be better to have some independent investigation of police shooting, and if necessary, independent prosecution. Not relying on the DA that has such a close relationship with the police on a day to day basis.

 

Sergeant John Rivera: And just so you gentlemen know something here in Dade county, we hate our prosecutor and the prosecutor hates cops. We have a wonderful relationship with our public defender and there has not been a police officer indicted here. So I don’t know that that theory works everywhere here in America.

 

Bob Ambrogi: What about approaches to policing? There’s a lot of talk about the fact that police have to stop taking a crime deterrent approach and focus more on engaging with the community, understand the community and becoming more engaged with the members of the community. Is that an effective way or could that be an effective way to help reduce incidents of police and citizen violence? Whether directed to the citizen or directed to police?

 

Sergeant John Rivera: If you’re asking me the question, I agree with you. I think that community policing is huge, huge, huge. You can’t say enough about that but what happens is the elected officials take resources from those community policing type of programs and they put it into cameras. For example, these cameras are going to cost an enormous amount of money. I’m sure there’s going to be cities – mark my word, record it and keep it in your archives there because there’s going to be some cities that probably are going to be bankrupt because the cost of these things. But that money that would have otherwise gone for better community relations, community policing to improve those relationships – and really, quite honestly, to help the poor – is going to be used in technology. I think the justice system has a lot of flaws. I think we incarcerate sometimes for the smallest crimes or drug infractions when we should be trying to rehabilitate them and violent criminals we let on the streets. I think our system needs a revamping. We’ve got it backwards.

 

Bob Ambrogi: This has been a really interesting discussion. I know that one of our guests today is tight on time and so I want to try and bring the discussion to a close. Before I do that, I’d like to give our guests an opportunity to sum up their thoughts on this topic and also to let our listeners know how they can follow up with their interest in learning more about this or discussing more about this. Erwin, I know you’re tight on time so let me turn to you and ask if you’d like to share your closing thoughts on this.

 

Erwin Chemerinsky: Thank you. I think the events of the last year have shown that there is a problem of policing, especially in minority communities. And there’s a problem with how officers use excess of force abrupt to justice. My hope is that all of the attention in this will lead to some of the kinds of reforms that we’re talking about. Community based policing, body cameras on officers, independent investigation and prosecution of police shooting. I totally agree that police have a terribly difficult job, they’ve made split second judgements on the field. But that should never be an excuse for excess of force. It should never be an excuse to justify some of the things that we’ve seen in Ferguson or in Staten Island or in South Carolina.

 

J. Craig Williams: And John, your final thoughts?

 

Sergeant John Rivera: Yeah, I appreciate his comments and his words. We’ve had several people from ACOU and other organizations down here and can make the same claims and we welcome them with open arms. We even had a black preacher who is one of the biggest critics of police and then we put him in a training scenario. He wound up killing two innocent people and then he wound up getting killed himself and then he came out publicly and said, Wow, I didn’t realize that.” Here, locally, we invited the ACOU to have one of those training sessions and at first he said yes and then he backed off, so I welcome people. It’s great, it’s like we see that football quarterback. He should have seen that open, how could not have seen that wide receiver open? How could he not? He’s a professional. Get on the field, take the hit, and then you’ll see if you see that wide receiver. Same with these folks. Let’s work together, let’s not work apart. I think there’s a great solution, I think we can make America better, we can make our communities better. I think we’ve got to hold the elected official’s feet to the fire, we’ve got to stop using the police officers like scapegoats. We’ve got to stop quota systems because that, in my view, tortures community members. I think we can find a better future, we’ve just got to work together.

 

J. Craig Williams: Great, and John if our listeners would like to reach out to you, how could they do that?

 

Sergeant John Rivera: Oh, absolutely. www.DCPBA.org and we’d be more than happy to field any questions.

 

Bob Ambrogi: Thanks to both of you for taking the time to be with us today, we really appreciate your thoughts and your comments on this issue.

 

Sergeant John Rivera: Thank you all.

 

Erwin Chemerinsky: It’s always a pleasure to be with you and I look forward to doing this again soon, but also ten years from now for your 20th anniversary.

 

Bob Ambrogi: Well, that’s a deal.

 

J. Craig Williams: That brings us to the end of our show, this is Craig Williams. Join us next time with another interesting topic. When you want legal, think Lawyer 2 Lawyer.

 

Advertiser: Thanks for listening to Lawyer to Lawyer, produced by the broadcast professionals at Legal Talk Network. Join J. Craig Williams and Robert Ambrogi for their next podcast covering the latest legal topic. Subscribe to the RSS feed on legaltalknetwork.com or in iTunes. The views expressed by the participants of this program are their own, and do not represent the views of, nor are they endorsed by, Legal Talk Network, its officers, directors, employees, agents, representatives, shareholders, and subsidiaries. None of the contents should be considered legal advice. As always, consult a lawyer.

 

[End of Transcript]

Lawyer 2 Lawyer: Lawyers, Weed, and Money: H.R. 2076 Found Some Fans – 9/5/2015

 

Advertiser: Anyone who knowingly helps people in the marijuana business do marijuana business, runs the risk of – however distant it may be at the moment – of being charged criminally, of having their assets forfeited. There are two federal laws that they are worried about violating. One is the federal money laundering statutes. The other is just the general aiding and abetting the execution of a federal crime. We know it’s a fantastic law because it’s short. People that vote on it will be able to read it.

 

Welcome to the award-winning podcast Lawyer to Layer, with J. Craig Williams and Robert Ambrogi, bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.

 

Bob Ambrogi: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. This is Bob Ambrogi coming to you from just outside of Boston, Massachusetts where I write a blog called Lawsites and also a blog called Media Law.

 

J. Craig Williams: And this is Craig Williams coming to you from Southern California. I write a legal blog called May it Please the Court. Bob, before we introduce today’s topic, we’d like to take a moment to thank our sponsor, Clio, an online practice management program for lawyers at www.GoClio.com. In recent news, there’s been bipartisan support for house bill 2076 introduced by representative, Ed Perlmutter, from Colorado’s 7th Congressional district. This bill would effectively allow banking institutions to provide services to marijuana businesses if enacted.

 

Bob Ambrogi: This has been a problem for marijuana businesses in states where marijuana has been legalized. We’re going to talk about this issue today with three guests. First of all, let me introduce Tom Downey. Tom Downey is a director and attorney at the law firm of Ireland Stapleton Pryor & Pascoe in Denver, where he represents primarily liquor and marijuana businesses. Until 2013, he led Denver’s Department of Excise and Licenses where he redrafted Denver’s policies and procedures for liquor licensing and wrote the original policies and procedures for Denver’s recreational marijuana licenses. Welcome to Lawyer 2 Lawyer, Tom Downey.

 

Tom Downey: Thrilled to be here.

 

J. Craig Williams: And Bob, next we have professor Sam Kamin. He is the Vicente Sederberg Professor of Marijuana Law and Policy at the University of Denver’s Sturm College of Law where he teaches ‘Representing the Marijuana Law Client’. His areas of research include criminal procedure, death penalty jurisprudence, federal courts, and constitutional remedies. Welcome to the show, professor Kamin.

 

Sam Kamin: Thanks, it’s good to be here.

 

Bob Ambrogi: And our final guest today is Leonard Frieling. Leonard is the first ever chair of the Colorado Bar Association’s Marijuana Law Committee and former executive director of Colorado NORML, the national organization for the reform of marijuana laws. And he is a criminal defense attorney with over 38 years of experience. Welcome, Mr. Frieling, to Lawyer 2 Lawyer.

 

Leonard Frieling: Thrilled to be here, thank you.

 

Bob Ambrogi: Now let’s kick it off. Tom, let me direct this question to you: Why is banking a problem for marijuana businesses?

 

Tom Downey: So before we dive into the issues of HR 2076, it’s important just to have a big picture perspective. Federal law trumps, and federal law is that marijuana is illegal. It is in conflict with state law, but what the federal government through the US attorney general’s office, through a series of memos and more importantly through their actions over the last five years, has said that as long as folks are compliant with their state marijuana laws, then the federal government is not going to enforce federal laws. And that is the reason why marijuana businesses in Colorado and other states have blossomed and grown because when they do the risk assessment, we can make money off this but we also know that we could be shut down by the federal government. When they make that assessment, they say it is worth moving forward. When banks originally were making this assessment, they said nope, that’s not good enough for us. The federal government says they’re not going to enforce federal marijuana laws. And then there was a special memo drafted by the attorney generals just about these financial crimes and in essence, saying the same thing. You’re are allowed to do this, we’re not going to enforce federal law, but banks said no no no no no, we need more than that. So that’s the impetus for the banks today wanting something more concrete and that’s the reason for 2076. And then the other thing is that it is already happening. There are banks that are providing financial services and something we can talk about in a few minutes is alternatives that have evolved over the last five or six years.

 

Bob Ambrogi: So, Sam Kamin, maybe you could give us an introduction on what is going on on the federal level in terms of legislation to address this issue.

 

Sam Kamin: Sure, there’s been a bunch of legislations introduced over the course of the last nine months or so – both in the senate and the house – that deal with various issues of marijuana regulation at the federal level. And I just want to echo what Tom said. As long as marijuana is illegal, as long as its possession and production sale are federal crimes, we’re going to have these ancillary concerns. Not just about am I going to go to prison for the rest of my life, but even though that’s a remote issue, can I bank, can I be employed, can I pay my taxes, all of those things.

 

Bob Ambrogi: But we is that when the justice department is saying they’re not going to prosecute, essentially? I mean they’ve said it both with regard to the banking specifically or with regard to the businesses more generally. Why is there this fear?

 

Sam Kamin: First of all, I think it’s a very well-founded fear. We have the Coats case in Colorado which made national news where Brandon Coats who’s quadriplegic and was using medical marijuana was fired by Dish network because they have a zero tolerance policy, even for off-duty drug consumption. And his firing was held by a unanimous Colorado Supreme Court. So I think it’s not just alarmist, but people are right to be concerned about their federal benefits, their federal funding, their family rights, their employment. All of these are put in issue when they’re engaged conduct that remains a serious felony under federal law, even if it’s not currently being enforced. And that’s part of the reason that these enforcement memos from Washington, while they do bring a certain amount of clarity, can’t solve the problem.

 

Tom Downey: Just to chime in on what professor Kamin’s saying, there’s an easy analogy here. And that is if the governor were to stand up and say, “I am directing the head of the state troopers to not enforce the speed limit five miles over and less.” And if you were to ask me, “Hey, can I drive three miles over?” The answer is no, it’s illegal. You can’t do that, you will be breaking the law. But then if you ask me, “Will I get caught?” The answer’s almost certainly not. And what are the ramifications if I do? Well, you’ll get points on your license and have to pay a fine. But as Sam is saying, for the banks, the ramifications are much bigger. If they lose their ability to bank, if they are shut down, it has not been worth it for them to step into this because the implications are so big despite the assurances that we’re not going to enforce.

 

J. Craig Williams: What’s the constitutional structure here? What happens when there are federal laws and state laws that conflict or state laws that address areas that federal laws don’t address.

 

Sam Kamin: Sure, the shortest answer is the supremacy clause that where there’s a conflict between state and federal law, the federal law is supreme; but I think that’s an oversimplification here. What is clear is that the federal government retains the power to prosecute anyone in violation of federal law wherever they may be. So if someone is violating the federal Controlled Substances Act, even if they’re doing it in Colorado where it’s legal for adults and California where it’s legal in the medical system, they can more or less by prosecuted. The more complicated issue is are Colorado’s and Washington’s and these other states’ regulations preempted by federal law. We haven’t seen a federal court take that issue on, but that’s one of the big background concerns for lots of people in this area.

 

Tom Downey: As far as the supremacy flaws, what the holder and cold series of memos are based upon is whole and colder for the federal attorney general’s office saying if you do the following, we will not assert the supremacy clause. In other words, we won’t take you to court to see who really has the power. On the banking, I think it is an unfair oversimplification to say, quote, “Not going to prosecute.” the statements leading up to this. What they said was we won’t prosecute if you properly fill out a suspicious activity report form. That had two levels of reporting. One, we took the ten thousand in cash, it looked okay. The other boils down to we are so familiar with their business, how much business they should be doing that when they brought in a million in cash to deposit and our wild guess is it shouldn’t have been over three hundred thousand. Then they had a higher level of reporting requirement reporting duty, and that’s what the bank said, “We can’t do that, we don’t know that, we’re not taking on that responsibility.” And that’s where the new legislation potentially does provide the clarification and the support to not give the banks an insurmountable level of compliance of responsibility of compliance.

 

J. Craig Williams: So what are dispensaries doing that are in Colorado and Washington and other states where it’s legal to sell pot? What are they doing to handle their bank? Are they setting up a private set of bank networks?

 

Sam Kamin: Well they tried to set up a private bank, the Fourth Corner Credit Union, which tried to get into the federal reserve’s system. It was denied by the federal reserve bank in Kent City and filed suit was an attempt by banks to resort to some self help proved ineffective. In terms of what individual businesses are doing, I think it varies. Some have found a way to bank, either with a wink and a nod or a personal relationship with a banker. Some are banking comingly in funds with their personal funds and all the risk associated with that in banking personally. And many I think go without all the negative ramifications and consequences that go with being a cash only business.

 

Bob Ambrogi: Representative Perlmutter from Colorado has filed this Marijuana Business Access to Banking Act, house bill 2076. Sam Kamin, walk us through what that would do.

 

Sam Kamin: Sure. Basically what it says is that a federal regulator shall not create negative consequences for a bank simply – or I think the word it uses is solely – because that bank banks marijuana businesses. And it also says that banks should not be officially discouraged from taking on marijuana businesses as clients, solely because those clients are in the business of marijuana. So it describes itself as a safe harbor saying if you are doing business only with properly regulated compliant companies, that can not be the basis for any negative consequence.

 

Bob Ambrogi: And is that enough to alleviate the concerns that banks have? If the justice department memo wasn’t enough, if there were still concerns there, does this do it for the banks? Does this make them comfortable with banking with the marijuana industry as long as they’re doing it in compliance with the state law?

 

Sam Kamin: Well, I guess that’s the million dollar question. It does grant immunity from criminal prosecution under certain circumstances and that will certainly be welcome news to bankers. I think that continued illegality is a tough thing to get around. There will be banks and there will be business people probably who will continue to say, “Look, I know they’re promising not to prosecute, but we don’t know what’s going to happen in the future. We’re unhappy taking large amounts of cash from people that we know are violating federal law, even if we’ve been promised no negative consequences. This is still not as good as a scheduling or descheduling of marijuana from the Controlled Substances Act

 

Tom Downey: And we also have to remember that there are two federal laws that they are worried about violating. One is the federal money laundering statutes. The other is just the general aiding and abetting the execution of a federal crime. That is one where everyone involved in this in Colorado and other legal states is engaged in this aiding and abetting. It’s everyone who is a landlord, everyone who’s directly involved in the business, creditors, suppliers. Our joke here is that Home Depot aids and abets every single day when they provide fertilizer and extension cords. The power company knowingly provides power and therefore is aiding and abetting when they provide electricity to these cultivation centers and to the stores. But the enforcement is just not there. As we discussed before, the enforcement line is drawn at the federal level only if there’s a violation of state law right now.

 

Bob Ambrogi: What you’re describing is a problem that goes way beyond just banking, otherwise this bill just targets banking. But does there need to be some broader legislation on the federal level to address this? Is there something sure of somehow removing marijuana from the list of controlled substances in a federal level? Is there something else that the federal government should be doing to allow this industry to operate without these kinds of fears?

 

J. Craig Williams: And as an adjunct to that question, see if we can discuss why this isn’t all being handled at once.

 

Leonard Frieling: Let me start to jump in, and I’m sure others have a lot to say. I think there are some very big issues that everyone wants to address first. Banking is one and largely because it’s a public safety and regulatory concern. Banking is an issue where the interest of the regulator and the regulated overlap perfectly. It is both in the interest of marijuana businesses and in the interest – in the state of Colorado – the Department of Revenue which is tasked with regulating marijuana. It’s in both of their interests that this not be a cash only business. Cash only businesses are much harder to regulate, much harder to track and trace, and from the point of view from the business, they don’t want to be set up as a victim that if they’re dealing with large amounts of cash, if everyone knows that, that’s the perfect prescription for violence. So it’s one that from the beginning, regulators in Colorado up to the level of the governor have said, “This is something we need,” both the regulated and the regulator. So that’s why the attention’s to banking. Other big issues that we are seeing, bills being introduced regarding 280E, the tax provision is another big one that right now marijuana businesses are obligated to pay income tax and can’t take most deductions that are available to other businesses. That’s one, and the other is both medical use and research. There’s a lot of interest in making low 2HC high CBD strains available to people, particularly children who need them, and funding or permitting medical research into marijuana.

 

Tom Downey: And professor Kamin is right, there are so many issues, banking is obviously a big one. But when we talk about legalization or addressing the issue, it impacts so broad a swath that it takes up so many categories. So for example, not just on the tax issues that Sam was talking about, but can a nonprofit in Colorado accept a donation from a marijuana business? What are the implications to their 501C3 status? Water. Significant portions in the West get their water from the Bureau of Land Management under the US Department of the Interior. They can not, under current federal law, provide that water to marijuana business, so there are local water districts that are taking the federal water, laundering it, and then selling it to marijuana business. Employment loss. Sam gave the example of the Dish Network case. This has so many implications all around. Banking, though, is the big one right now.

 

Bob Ambrogi: We have to take a short break. Stay with us, we’ll be back in just a few more moments to continue our discussion of the legal constrictions of operating marijuana businesses.

 

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J. Craig Williams: Before we broke off we were talking about the wide swath of businesses that this affects, but what about individual employees within these businesses? Do individuals have liability to the federal government over criminal or civil situations?

 

Sam Kamin: I think that at least theoretically they do, and I think Tom was talking about this. Anyone who knowingly helps people in the marijuana business do marijuana business, runs the risk – however distant it may be at the moment – of being charged criminally, of having their assets forfeited, and that extends as he mentioned to construction, insurance, banking, businesses, and their employees. An imaginative federal prosecutor could have a very wide range in this regard.

 

Bob Ambrogi: This is not related to HB 2076, it was last week the Senate Appropriations Committee voted in support of an amendment to the financial services in general and Government Appropriates bill that would also open up banking services to marijuana businesses. I’m presuming that’s separate from the legislation we’ve been talking about. But I noticed that the vote there was 16 – 14. I know that the bill 2076 is a bipartisan bill, but who’s against this? I’m taking it that all of you on this show – you can correct me if I’m wrong – but it sounds like you’re all in favor of some legislation here. What’s the argument against it?

 

Tom Downey: My take on it, is first of all, we all know it’s a fantastic law because it’s short. People that vote on it will be able to read it. Second, it solves most of the problems. It won’t get better, it will get worse the more it’s messed with. Is it a permanent solution? It’s very easy to tell if it is working. If banks start taking cash, it works. If banks don’t start taking cash as a result, it’s broken and needs fixing. In the meantime, let’s get it passed. And banks make money because there’ s money in the bank. They invest it and banks have one interest and it’s not morality, it’s not politics, it’s making money. They will take deposits from the manufacturers of agent orange, they’ll take money from the creators of the largest oil spills in industry, it’s simply not a moral judgement. It’s put money in the bank so we can make money for us and for our investors and everyone else connected in the chain. They want the money. They’re powerful. They will make sure, whether it’s HB 2076 or a fix of that. I have absolutely no question in my mind that not only will the banks make certain that the cash gets to go into the banks, all of the credit card companies have a stake. They want their 1.86% of every transaction rather than a system that bipasses them. So we have these hugely wealthy, powerful interests all wanting to take the money. Most of us are capitalists, we’re not communists, mostly. We want them to take the money. These people, my friends, my compatriots, want to pay taxes at a fair rate. They don’t want to lose all below the line of options. They want to be part of the system. The system wants them to be part of the system. This one or two page attempt, I can find some things in it as a lawyer that I’d say, “I could protect people better if we change this, if we change this, if we included this.” Frankly, let’s get this thing passed. It is in my reading and a professor might flunk me on a test for this, but my reading is not bad. This is almost unfair but compared to the Patriot Act, which is so long, I will gamble money that not a single person that voted for it read it.

 

Bob Ambrogi: In fact, it’s shorter than the Department of Justice Policy memorandum that they put out on this same issue, so I guess that’s saying something. So is the opposition moral based? And I realize none of you probably want to speak for the opposition, but are the arguments against it simply that this is going to encourage greater criminality on other levels or that it will spread in the states where marijuana hasn’t been legalized?

 

Leonard Frieling: I think you’re right that it is not substances with any objections, it is political. Not necessarily moral but political, and it is that someone who is running for reelection in Congress, they don’t want to be seen as supporting marijuana if that isn’t appropriate for the district. And the district seemed to aid and abet the general movement of marijuana legalization across the country. I think the bigger questions are number one, if it does pass, does it take care of everything, and then number two, if it doesn’t pass, what’s the situation moving forward?

 

J. Craig Williams: Let’s take a quick look at this historically. How was banking handled during the prohibition from businesses that manufactured and sold liquor? Was it treated exactly the same way where you were not allowed to bank that money?

 

Tom Downey: My guess is that it was money laundering or cash. Look at the cocaine business in Miami when cocaine built the city. Wheel barrels straight out of Scarface. And the banks were, again, happy to have money in the bank so that they can make money on it. But I expect it was a combination of the money laundering and per clarity, I do not speak for the Colorado Bar Association. I speak for myself. I am the chair of our brand new first in the nation with Michigan now number two, Cannabis Law Committee of the State Bar Association, but I don’t speak for them today. I got scolded once for not being clear about that and I don’t like being scolded; neither do banks. They just want to take the money.

 

Leonard Frieling: I think it’s also important to understand where things are today, which is very different from five years ago when this started and therefore what would happen if this bill doesn’t pass. In the beginning, everyone had bank accounts. Then, end of 2011 beginning of 2012, all of the banks were advised, you can not provide financial services because you are money laundering for drug dealers in the eyes of the federal government; and so they all pulled their accounts. But then over the course of the last five years as the federal memos came out and again, most importantly, the actions or inactions on the enforcement side by the federal government, folks have become more and more comfortable. So where we are today, is that number one, there are some banks that are doing it, but their clients are not paid pot shots or acme marijuana. They have other titles and so there’s less of a red flag. That’s number one. Number two, there are some marijuana businesses where it is part of their plan that they are going to have to get a new bank account every three months because they’re going to figure it out and they’re going to get cancelled. Then number three, there are some banks that are simply doing this. There are banks in Colorado – we don’t broadcast them – that are accepting these customers and they are moving forward. There are also number four, some that are still all cash. There are others where they have staffing companies or management companies where they can have different accounts. Then there are others where they have runners. They have all cash and they will send guys all around to Denver to 7/11’s and get five thousand dollar prepaid credit cards that then they use for purchases. And then my favorite is there are folks on Craigslist buy a used ATM, watch YouTube videos on how to set it up and get it integrated, then I will create Tom’s Financial Services LLC and my business is owning ATM’s and putting them in lobbies of retail operations and then I’ll go to any bank and say I need a bank account and I’m an ATM company. And so they’ll give me a bank account and then I will lease, I will put my ATM into my separate corporate marijuana store in the lobby and then that’s where people take money out and we put money back in. And so that bank, unknowingly, is laundering that money. So there are a whole bunch of systems that folks have in place. They do all of one or a combination of others and more and more folks are getting comfortable with the non enforcement. The federal government has a log as the businesses are in compliance with state law. And so that’s where that will continue to progress even if this doesn’t pass.

 

Bob Ambrogi: Sorry to say that we’ve run out of time. We’re about near the end of our program and we’d like to invite each of our guests to share their final thoughts and also to let our listeners know how they can follow up with them. And so Tom Downey, let me begin with you.

 

Tom Downey: Thank you so much for having this, it’s such an important subject. My final thought is very simple and that is that for all of us lawyers and optimists, it changes so quickly. So you’re going to have another one of these sessions in just a few months because it moves so quickly. The easiest way to get in touch with us is at our website, IrelandStapleton.com.

 

Bob Ambrogi: Thank you very much. Sam Kamin, how about you?

 

Sam Kamin: I like Tom’s point. You listen to us today and listen to us again in a couple of weeks when everything is new and different. I can be reached via Twitter. I’m on Twitter @ProfSamKamin. I’m at the University of Denver, I’m pretty easy to find that way. And it’s a very exciting time. It’s rare that law professors and lawyers get to be at the start of something and we’re definitely at the start of something here.

 

Bob Ambrogi: And Leonard Frieling, you get the final word today.

 

Leonard Frieling: I love that, it’s always the district attorney that gets the final word, it’s been frustrating. We went from it’s so quickly, let’s do a show in a few months to the professor saying a few weeks. I think we need to do another show this afternoon, it changes that quickly.

 

Bob Ambrogi: Not happening.

 

Leonard Frieling: I could be found at LFrieling.com. And personally, the most exciting thing we are working on is at MyCanaryApp.com. The app is My Canary, iTunes not Android so far. And what we do is for the driving problem, it’s a table saw question. We have a performance measuring app that looks at things like reaction time, compares it to your personally preset sober performance and gives you some actual input on how your balance looks so that people can have a tool to help them be more responsible. Over ten thousand downloads, people that are choosing to be responsible. Thanks for having me.

 

J. Craig Williams: Gentlemen, thank you very much, that brings us to the end of our show. This is Craig Williams with Bob Ambrogi. Join us next time with another interesting topic. When you want legal, think Lawyer 2 Lawyer.

 

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