Friday, November 6, 2015

My civil asset forfeiture story

Yesterday evening, while enjoying a plate of carnitas at Chimi's in Tulsa, I listened to State Senator Kyle Loveless (R-OKC) describe his bill to reform civil asset forfeiture laws in Oklahoma.  Senate Bill 838 would put a stop to Oklahoma law enforcement agencies seizing and keeping people's property without going to the trouble of convicting -- or even charging -- the property owners with a crime.  If you are unfamiliar with the practice of civil asset forfeiture, then you should become educated

My education came hard and fast when I took on my one and only forfeiture case four years ago. 

Police arrested and charged a man with manufacturing a controlled dangerous substance.  At the time of the arrest, the police also seized a pickup and a new Harley-Davidson motorcycle that were parked in front of the house where the arrest occurred.  Also seized were two rifles and two handguns, which were found inside the house.  

The district attorney filed a Petition to Forfeit Property Seized During Arrest for Controlled Dangerous Substance.  As is the practice in asset forfeiture cases, the property items themselves were listed in the case caption as the "Defendants."  The property owner(s) were not named.  (Inanimate objects tend to put up less of a fight.)

I was hired to represent the motorcycle -- sort of.  The motorcycle was actually titled in the names of the suspected drug dealer and his elderly mother.  The mother's guardian hired me to defend against the forfeiture of the motorcycle.  The other inanimate objects were on their own.

I learned that the motorcycle had been purchased by the mother at the urging of her precious little boy.  She made the down payment, signed the note to the bank, paid almost all of the installment payments, and paid all of the insurance premiums.  Nonetheless, she was about to lose the motorcycle because, according to the Petition:
found in close proximity of Manufacturing of Methamphetamine . . and believed to have been utilized in exchange for, and to transport, or were otherwise utilized in connection with said controlled dangerous substances.
But what the Petition did NOT allege was that any controlled dangerous substance was actually found.  All that was found was "drug paraphernalia," including some scales.  Nothing was found on the motorcycle, nor was there any evidence that the motorcycle had been used to transport any controlled dangerous substances.  

I filed an answer to the Petition, explaining that the mother was the one who purchased the motorcycle, and that the bank was the effective owner, since the loan balance was more than the resale value of the motorcycle.  Even if the motorcycle had been used "in exchange for" or "to transport" drugs, it is unlikely that Mom was aware of it, since she had Alzheimer's and was house-bound.

I thought the filed answer would be enough to shake the motorcycle loose from the district attorney's grasp, but it was not.  He pressed ahead.  This means that he was taking the position that he could take my client's motorcycle simply because it was parked in front of a house in which the police found some scales.  Sound reasonable?

The law he was relying upon provides:
All monies, coin and currency found in close proximity to any amount of forfeitable substances, to forfeitable drug manufacturing or distribution paraphernalia or to forfeitable records of the importation, manufacture or distribution of substances, which are rebuttably presumed to be forfeitable under the Uniform Controlled Dangerous Substances Act. The burden of proof is upon claimants of the property to rebut this presumption . . .
As bad as this law is, notice that it applies only to money -- not property in general, such as a motorcycle.  Also, what is "close proximity"?  Is a motorcycle parked in the driveway in close proximity of the heinous scales found inside?

Another portion of the law requires that the district attorney give notice of the forfeiture petition to any known lien-holder.  But even though I identified the bank and included the loan number in my answer, the district attorney refused to give notice to the bank.  (Bank lawyers put up more a fight than inanimate objects.)

We had a hearing.  Once I convinced the judge that the motorcycle was effectively owned by the bank, the district attorney cut bait.  He voluntarily released the motorcycle from the forfeiture petition, but still refused to concede that he was in the wrong.  He insisted to the court that he could still take the motorcycle if he wanted to.  I had the motorcycle, so I quit arguing.

The pickup and the other items were still forfeited.  The owner had a public defender, but since the forfeiture was a civil action, the public defender would not lift a finger to help save the property.  The owner was unrepresented and overwhelmed.  

Sen. Loveless is being vilified all across the state by sheriffs and district attorneys for trying to reform this system.  According to them, there is nothing to see here, so move along.  

Thursday, October 15, 2015

Return of the Wasps

The wasps are back. This is a horror show that gets replayed every fall when a new generation of wasps emerge from their nests and start buzzing outside my 5th-story office window. “Horror show” might sound like an exaggeration, but try to imagine this scenario.
You are working at your desk when movement at the corner of your vision causes you to glance up at your office window. You notice a couple of wasps clumsily flitting about on the other side of the glass. You return to your work.
More movement. . . and tapping. You look up and see a dozen wasps, a few of which are repeatedly bumping into the glass. [tap . . tap . . tap] Your ears immediately become attuned to this sound. Can a certain fury now be detected in the darting movements of the wasps, or is this impression caused by the number of wasps now assembled? No matter. They are on the OUTSIDE of the glass. You are on the 5th floor and so the windows do not open, nor are there any other openings. You return to your work.
The sound of wings. You look up to see eleven wasps on the outside of the glass . . . and one on the inside. The ones on the outside seem to want in, and the one on the inside seems to want out. But this is impossible. How can a wasp pass through solid glass? What numinous abilities do these wasps possess? You ponder the question, but then convince yourself that the appearance of this one wasp is a fluke. It must have gotten inside the building by some ordinary means and then it flew down the hall and into your office. He seems preoccupied with the glass, so there is no cause for concern. You can kill him later. You return to your work.
The harmonious sound of multiple sets of wings. You look up to see nine wasps outside of the glass and three on the inside. Two of the three are tapping against the glass, wanting out, but the third is flying a diagonal path across your office airspace. His thoughts and motivations are his own. Now is the time for panic felt deep, coupled with irrational speculations as to entomology and the supernatural. Work is abandoned.
This has been my experience for the past five years. The mystery as to how the wasps get inside disturbs me almost as much as the wasps themselves. The building’s super has theorized that they get in through the light canisters in the ceiling, but this makes no sense to me. Why would light canisters have a direct avenue to the outside? If so, why can’t the openings be plugged? The super has made multiple attempts to combat the wasps over the years, including filling the building with deadly poisons (perfectly safe for us worker drones, of course), but the wasps seem unfazed. The super has now surrendered – the building is the wasps’ domain. We are expected to live and work by their good graces.
When the wasps return, the transition period can be difficult, but I am soon given over to acceptance and submission. The wasps fly about the room, alight on the spout of my water bottle, and crawl on my desk. But my clients, who visit my office and encounter the wasps for the first time, are less staid in their reaction. It is distracting to try to discuss their cases with them while their eyes track the movements of the wasps in the room. They flinch, duck, and sometimes vocally express their displeasure with the wasps. Acceptance takes time, I suppose.

Thursday, August 13, 2015

Cruz in Bartlesville

I just now left Wesleyan University, where Ted Cruz held a campaign rally.  It was an impressive turnout of well over 1,000 people.  The senator spoke with energy and really connected with the crowd.  I appreciated much of what he had to say, but he lost me each time he spoke on defense and foreign policy matters.

I most disappointed in the demagoguery he employed when expressing his opposition to the Iranian nuclear agreement.  He began by pledging to tear up the agreement as one of his first acts in office.  That got the crowd on their feet.  He then said that if the deal is implemented, the U.S. will become the world's leading financier of terrorism.  Cruz has recently received criticism from the press and even Republican party leaders for making this claim elsewhere, so repeating it in front of the Bartlesville crowd was his way of being bold. 

He explained the reasoning behind his statement in much the same way he explained it here to Sean Hannity: 
“Under the Obama nuclear deal, over $100 billion will flow to Iran. Iran is the world’s leading state sponsor of terrorism, so much of that money will end up in the hands of Hamas, Hezbollah, and the Houthis, and other radical Islamic terrorists. And if this deal goes through, the Obama administration will become quite literally the world’s leading financier of radical Islamic terrorism.”
(At the campaign rally, I believe that he identified the U.S., rather than the Obama administration, as the world's leading financier of radical Islamic terrorism.)  

He then broke it down, by stating, "Here are the facts."  Among these "facts" was that over $100 billion will flow to Iran.  This is misleading, at best.  Cruz is knowingly giving the impression that Iran will be paid that much money by the U.S. or U.S. partners.  In fact, that money is already Iranian money, but it is locked up in suspended accounts.  As part of the deal, Iran will be permitted to have access to their own money.  Keep in mind that Iran is a sovereign country.  It is not a defeated enemy, nor is it a country against whom the United States has made a declaration of war.

The next Cruz "fact" is that once Iran receives those billions, it will send them to Hamas and other terrorist organizations.  This goes beyond being misleading.  Cruz is merely speculating as to how Iran will use those funds, and it is not speculation base upon reason.  The Iranian economy is in shambles, right now, and the Iranian electorate is demanding that the government act to relieve the economic pressures at home.  If the government were to send over a $100 billion to Hamas, the government would be ousted by the people.  Yes, Iran supports Hamas and money is fungible, so freeing Iranian bank accounts in the U.S. could facilitate that support.  But Cruz is claiming much more than this.

The next Cruz "fact" is that, "Hamas will then use that money to kill Americans, Israelis, and others." Hamas is a terrorist organization that has been responsible for many civilian deaths, including some Americans, but America is not their stated enemy, nor do they target Americans.  I too would like to see Hamas starved of funds, but there is not a straight line to be drawn from the negotiated Iranian nuclear agreement to American civilian deaths by Hamas.

Cruz went even further and stated that it appears that President Obama, "wants Iran to have a nuclear bomb."  This claim is absurd on its face.  If Obama truly wanted Iran to have a nuclear bomb, then his best course of action would be to not reach an agreement of any kind.  Iran would then be free to operate as they wish -- not limits on centrifuges or enrichment (other those already existing under the Nuclear Nonproliferation Treaty), and no inspections.  

I like how Senator Cruz manages to disquiet entrenched and settled opinion, but only when he does so using the truth.

Cruz also pledged to "rebuild the U.S. military."  Huh?  Where did the military go?  Defense spending still accounts for 54% of all federal discretionary spending.  The U.S. spends more on its military than then next nine countries combined.  I thought we wanted less government.

I mistakenly thought Cruz was was not going to take questions, so I left as soon as he concluded his remarks and did not get the opportunity to ask him any of the questions I had prepared.  Here they are: 

“By what standard and legal authority do you believe the president may authorize a drone strike on a human being?”

“In his recent foreign policy speech in California, Jeb Bush advocated a no-fly zone in Syria, enforced by the U.S. military.  He also advocated U.S. troops being embedded with Iraqi security forces inside Iraq.  What is your position?”

“Identify the federal programs or departments that you would like to eliminate entirely, and the amount of savings you believe would result from such eliminations.”

“You co-sponsored the ‘Freedom Act,’ which reformed portions of the ‘Patriot Act.’  The Freedom Act placed limits on the NSA’s ability to access our phone records, but still permits the NSA to gain court authorized access based on a showing of less than probable cause.  Why do you support such authorization, and how does that standard comport with the Fourth Amendment?”

“You have identified former U.N. ambassador John Bolton as someone you look to for foreign policy advice.  Do you think John Bolton gave good advice to George W. Bush when he urged war upon Iraq for the purpose of finding Saddam’s weapons of mass destruction?  Do you agree with Bolton’s statement in his recent NYT’s op-ed, that only a military attack upon Iran ‘can accomplish what is required’?” 

Tuesday, March 3, 2015

USPS is in the Red

Doug Bandow's latest essay on the United States Postal Service is relevant to my blog post on the same in December. 

Wednesday, February 25, 2015


In November, I blogged about the impact on mineral producers in Osage County, Oklahoma from a new mandate issued by the Bureau of Indian Affairs, requiring an environmental assessment as a precondition to any future drilling activity.  I made mention of a federal class action lawsuit that precipitated the mandate.  Since then, the lawsuit has not advanced an inch, with the judge still pondering numerous Motions to Dismiss, filed by the mineral producers.

There is an article in today's Tulsa World describing the overall situation and the impact on the oil economy in Osage County, which is well on its way to being devastating.  But Gentner Drummond, the Plaintiffs' attorney, has a different term for it: "a godsend."  According to Mr. Drummond, this is because “exploration and production costs are saved during this period of reduced oil prices.”

The implication is that the Osage Nation and the oil producers lack sufficient knowledge and wisdom to adroitly respond to movements in the price of oil, so God must send a class action plaintiffs' attorney to save the day.  

Wednesday, December 17, 2014

Is my mailbox federal property?

“You know, a person’s mailbox is federal property, and it is against the law for anyone other than a postal carrier to put anything in it.” Have you ever heard that and wondered whether it is true, or just an urban myth?  The first time I really wanted to know the answer was in high school – the pre-Google era.

As a classroom exercise in my high school speech class, each student was required to draft a piece of legislation and defend it during a mock congressional session.  Everyone seemed to relish the drafting part of the assignment, dreaming up new laws for their imaginary government to impose upon unruly worker bees.  Some pieces of legislation consisted of sections and sub-sections requiring multiple pages of scribbled notebook paper.

I took a different approach.  My sixteen years of life experience had already led me to the conclusion that we had too many laws, so rather than contriving a new one, I proposed that an existing law be repealed.  This required considerably less drafting time, since it could be effected with a single sentence: “39 CFR 310, entitled Enforcement of the Private Express Statutes, is hereby repealed.”

Okay, maybe I didn’t know the specific Code of Federal Regulation citation, at the time, but I knew that such a regulation existed.  Here is the relevant portion, as it still reads today:

§ 310.2 Unlawful carriage of letters. 
(a) It is generally unlawful under the Private Express Statutes for any person other than the Postal Service in any manner to send or carry a letter on a post route or in any manner to cause or assist such activity. Violation may result in injunction, fine or imprisonment or both and payment of postage lost as a result of the illegal activity.

This regulation protects the U.S. Postal Service’s monopoly over the delivery of first class letters.  UPS and Federal Express are permitted to compete with the USPS in the delivery of packages and express mail, but they are prohibited by federal law from delivering Christmas cards and utility bills.

Notice that this prohibition is not limited to commercial carriers.  It applies to “any person” who “in any manner” sends or carries a letter on “a post route.”  Of course, everywhere in the United States that there is a domicile is a “post route,” as the USPS itself is quick to boast.  So read literally, this regulation prohibits you from hand-delivering to your neighbor an invitation to a block party.  Committing this legal activity could result in your fine or imprisonment, as well as your being required to pay the forty-nine cents that rightfully belongs to the USPS.

The USPS has never attempted such an absurd enforcement of the law, but local post officials have gone after businesses that have used private delivery services to distribute their ads.
When I stood to advocate for my proposed legislation in speech class, the primary argument leveled against me was that private carriers would be unable to deliver mail to customers’ existing mailboxes because . . . well, everyone knows that those mailboxes are federal property, and it would be against the law for private carriers to touch them.

I responded by saying that if that is indeed a law, the private carriers and their customers will be capable of working out a solution.  As is so common in life, it wasn’t until much later that I thought of a more cogent reply: “If that is indeed a law, then we can repeal it, as well.  Repealing two stupid laws is as easy as repealing one stupid law.  Your suggested amendment to my proposed bill is accepted.”

This week, I once again heard someone whine that a federal crime had been committed when someone (a client of mine) dared to place a letter in his mailbox.  Now living in the Google era, it was easy enough for me to search out the law and confirm that, yes, such a stupid law exists.  It is found under 18 U.S.C. § 1725:

Whoever knowingly and willfully deposits any mailable matter such as statements of accounts, circulars, sale bills, or other like matter, on which no postage has been paid, in any letter box established, approved, or accepted by the Postal Service for the receipt or delivery of mail matter on any mail route with intent to avoid payment of lawful postage thereon, shall for each such offense be fined under this title.

Furthermore, here’s what Section 508.3.1.3 of the Postal Service’s Domestic Mail Manual says about delivering letters or other material yourself:

No part of a mail receptacle may be used to deliver any matter not bearing postage, including items or matter placed upon, supported by, attached to, hung from, or inserted into a mail receptacle. Any mailable matter not bearing postage and found as described above is subject to the same postage as would be paid if it were carried by mail.

The maximum fine for each offense is $5,000 for individuals and $10,000 for organizations.

Some will argue that the restriction is a security measure, and that it serves to protect you and me from satellite dish salesmen and al-Qaeda, but when read in conjunction with the Private Express Statute quoted above, the true purpose of the restriction is clear – guarding the monopoly.  According to the Government Accountability Office, the restriction serves to “protect postal revenue by preventing delivery of unstamped matter to mailboxes.”

The U. S. Supreme Court, in a 1981 decision, rejected a First Amendment challenge to the restriction.  The Court reasoned that, “the postal customer, although he pays for the physical components of the ‘authorized depository,’ agrees to abide by the Postal Service’s regulations in exchange for the Postal Service agreeing to deliver and pick up his mail.” Here the Court is saying that once you stick a mailbox in your front yard, you have implicitly designated it as federal territory, at which point the federal government is empowered to proscribe the use of that territory.  Of course, no federal statute actually states this, but Justice Rhenquist, otherwise known for advocating judicial restraint, manages to find this implication within the law.

Admittedly, I do not want anyone and everyone to feel free to stuff my mailbox with circulars, tracts and manifestos.  (My mailbox is already amply stuffed by the postman with the same.)  I can also think of practical advantages in limiting access to mailboxes, some of which are identified in the Supreme Court decision.  But guarding the Postal Service against competition is the real purpose.

So it is not urban myth, but it is a stupid law.

Wednesday, November 12, 2014


Barnsdall Main Street Well
Sometimes federal agencies seem to parody themselves, conforming neatly with the image contained in the wild imaginations of conservative critics as out-of-touch bureaucracies issuing senseless mandates spoken in liberal shibboleths.  Such is the case with the new Environmental Assessment Template issued by the Osage Agency, which is within the Bureau of Indian Affairs ("BIA").

To understand it, you will need some background.  In 1883, the Osage Indians purchased from the Cherokee Nation the land that would become Osage County in the State of Oklahoma.  When you cross over into Osage County, you are also crossing over into the Osage Reservation.  In 1906, Congress passed the Osage Allotment Act, 34 Stat. 539, which divided the land in the Osage Reservation among the members of the Osage Tribe. The subsurface mineral estate would be owned by the Tribe, but development of the mineral estate would be overseen by the United States, and the resulting revenue would be managed and distributed by the United States as trustee for the Tribe. Oil and gas leases are entered into between the Tribe and independent producers, but must be "approved" by the Secretary of the Interior through the Superintendent of the Osage Agency.

This arrangement imposes conflicting duties on the part of the BIA.  It owes a fiduciary duty to the Osage Tribe, a sovereign nation, to preserve the value of the mineral estate and maximize revenue, but it also has a duty to comply with all statutory law and executive orders governing the operations of federal agencies.  Of course, few if any of these laws serve to further the fiduciary duty owed to the Osage Tribe.

An example is the National Environmental Protection Act (“NEPA”), enacted on January 1, 1970.  It directs all federal agencies to assess the environmental impact of proposed “major federal actions” that significantly affect the quality of the environment. Arguably, BIA approval of oil and gas leases constitutes “major federal action” that must comply with NEPA mandates. This means that at a minimum, the BIA must complete an Environmental Assessment ("EA") prior to lease approval, establishing that the approval is not anticipated to have a significant impact on the environment.

In May 1979, the Area Director for the BIA approved the Environmental Assessment for the Oil and Gas Leasing Program of the Osage Indian Tribe, Osage County, Oklahoma.  Since 1979, the BIA has approved thousands of leases and well permits, premised upon that single EA being sufficient to comply with NEPA.

A surface owner in Osage County has now challenged that practice in a lawsuit filed in the United States District Court for the Northern District of Oklahoma, the argument being that drilling practices and environmental knowledge have changed since 1979 and therefore the 1979 EA has become stale.  Furthermore, it is argued that regulations specific to the approval of Osage leases, 25 CFR § 226.2(c) , provide that “[e]ach oil and/or gas lease and activities and installations associated therewith subject to these regulations shall be assessed and evaluated for its environmental impact prior to its approval by the Superintendent.”  This suggests that an assessment of some sort must be performed prior to each lease approval.

In panicked overreaction to the filing of the lawsuit, the Osage Agency issued a notice to the oil and gas producers that henceforth, they would need to perform an EA as a prerequisite to applying for a lease or drilling permit.  (NEPA places the obligation of performing an EA on the subject federal agency, but the agency will often delegate that obligation to state agencies or private actors.)

Of course, this notice appeared to give legitimacy to the charge made in the lawsuit that there has been a failure to comply with NEPA mandates.  This emboldened the plaintiff's attorney, who has now filed a class action suit which seeks to certify a plaintiffs' class comprised of all surface owners in Osage County where oil and gas operations have occurred, and a defendants' class comprised of all unnamed lessees who have operated in Osage County.  This lawsuit is a pure money-grab, made evident by the requested remedies, which include the disgorgement of all profits made by the defendants from oil and gas operations in Osage County.

Next, the Osage Agency issued an Environmental Assessment Template to instruct the producers on what each EA should look like when applying for a lease approval, drilling permit, or perhaps any permit whatsoever.  Producers estimate it will cost between $6,000 and $10,000 to complete each EA.  More troubling are the "best management practices" ("BMP" throughout the template) for lease operations set forth in the 59-page template.  They appear to have been drafted by someone who is more attuned to special interests voiced in D.C. than to the practicalities of energy production:

  • Reduce the amount of fugitive dust and vehicle emissions by controlling road speeds and carpooling
  • Use "green" completions to recapture product that otherwise would have been vented or flared
  • Use natural gas-powered engines
  • If a "noxious weed community is found," the "services of a qualified weed control contractor would be utilized.
  • The applicant must obtain information to determine the federally protected species that could potentially occur within the vicinity of the project.  (This sometimes requires hiring a biologist to count endangered beetles.)
  • "The presence of qualified cultural resource monitors during construction activities is encouraged."
  • "Environmental justice communities are present within Osage County . . . [P]otential impacts are reduced through surveys of proposed well locations, and access road and gathering pipeline routes; mitigation measures required by the BIA; and thorough reviews and determinations by the BIA that there would be no effect to historic properties."
  • Planning transportation to reduce vehicle density.
  • Posting speed limits on roads.
  • Painting facilities a color that would blend with the environment.
  • Keep a watering truck on site and water the access roads as necessary.
  • All utility lines, including gathering pipelines, and electric and fiber optic lines, essential to oil well operations, would be installed underground.
The template also contains a 2-page section under the caption, "Greenhouse Gas Emissions and Climate Change."  This section includes a chart of "temperature anomalies in the contiguous United States, 1979-2009" from NOAA, and includes the following statement: "IPCC experts concluded that most of the observed increase in globally averaged temperature since the mid-twentieth century is very likely due to the observed increase in anthropogenic GHG concentrations."  But the section concludes with this: "Oil and gas producers in the United States are not considered large GHG emitters by the EPA, and are not the subject of any current federal proposals that would regulate GHG emissions."  In other words, "climate change" speculation has no relevance to an EA prepared in support of a lease application.  It is in the template only because it is the confession that must precede absolution in the form of a permit.  

The template, combined with the pending class action lawsuit, has resulted in a fall-off of oil production in Osage County.  Since the release of the template, there have been no new wells permitted.  Rigs are going idle and service companies are laying off workers.  The Osage Tribe is facing a substantial fall in oil revenue.

Not surprisingly, there are some angry producers in Osage County who have some tough questions for the new Osage Agency superintendent.  The toughest question might by the simplest: "Why has the BIA informed producers that they must start performing environmental assessments to comply with NEPA, if the BIA will be arguing in court that the 1979 assessment is sufficient?"

This issue pits two Democrat constituencies against one another -- environmentalists and Native Americans.  We shall see which group has the most political clout.