The Fig Street Firm

Possible Huge Concession By Bank Industry Lobbyists?
January 8, 2009, 6:14 pm
Filed under: Uncategorized | Tags:

This sounds too good to be true.

Apparently Citigroup is willing to support the right of homeowners to reduce the mortgage debt on their primary residences in bankruptcy court. The banks have fought this idea tooth and nail for years. It was likely the real reason that Congressional Republicans refused to support the first iteration of the TARP bailout last year. I will be pleasantly shocked if this goes through. It would immediately alter the playing field for borrowers negotiating to modify their home loans.

It would also (thankfully) obviate a writing project I’ve been working on for awhile, a primer on a possible loophole in California law that would allow homeowners to “cram down” their mortgage debt under existing bankruptcy law. Anyone interested in nerding out on this subject as much as I have over the past year should first read Nobelman v. American Savings Bank, Clarence Thomas’ tortured reading of various bankruptcy code sections that placed residential homeowners at the bottom of the totem pole in terms of rights in bankruptcy court.

Existing law, as framed by Nobelman, states that distressed mortgages can only be modified in bankruptcy court to reflect a collapse in the underlying property’s value when the property is not the debtor’s primary residence. Everyone else–speculators, house-flippers, landlords, owners of vacation homes–gets a break. If it seems like backwards public policy, that’s because it is.

Well, it is now.

For years banks have argued that they needed to restrict the rights of homeowners to adjust their mortgages in bankruptcy so that they could continue to offer attractive interest rates to homebuyers. Allowing homeowners to cram down mortgage debt would have represented a greater risk to lenders, they argued, resulting in higher rates for all.

It would have slowed the steady rise in residential real estate too. Can’t have that, can we. Don’t wanna erode that ownership society.

At least Citi is succumbing to reality. We will see if it’s too little, too late.


Police Shooting Caught on Video
January 7, 2009, 2:11 pm
Filed under: Criminal Defense

This stunning footage taken with cell phones by passengers on a BART train in Oakland, CA shows a police officer shooting an unarmed man in the back. The victim, 22-year old Oscar Grant, died later that morning.

The shooting took place at the Fruitvale station in Oakland on New Years’ Eve, after BART police had been summoned to intercept a train coming from San Francisco. Police were called because two groups of young black men were fighting on the train. The police believed Oscar to be a participant in the fight.

Initial media reports claimed that the shooting happened in the midst of a scuffle that the officers tried to break up. BART authorities have since backtracked, probably because of the video footage, which only surfaced today. It appears from the footage that there was no need for the officer, 27-year old Johannes Mehserle, to draw a gun on Oscar.

The officers appear to be easily-provoked hotheads who needlessly subdue Oscar in response to something he says. In the process of subduing Oscar, Mehserle draws his gun, and it goes off. He quickly replaces the gun while looking around at the other officers. The officers are dragging Oscar’s body when the train door closes on the witness recording the incident. Chaos ensues on board the train, and the video ends.

There are a couple different interpretations of the events that people have taken from the videos:

Officer Mehserle takes out his weapon, thinking it’s his taser, and fires it without knowing he is using lethal force.

This sounds reasonable at first glance, but it is probably not the case. If Mehserle intended to fire a taser, he would have waited for the other officer to release the victim. Otherwise, the other officer would have been stunned by the taser as well. Additionally, a taser is much lighter than a handgun and would presumably have been stowed in a different spot on Mehserle’s belt.

On these facts, Officer Mehserle should be charged with criminally negligent homicide.

Mehserle draws his weapon in an attempt to subdue Oscar, and accidentally discharges the weapon into Oscar’s back. In shock, he looks around at the other officers on the scene as if to say, “that didn’t just happen, did it?”

This will probably end up being the official story. There does not appear to be a need for Mehserle to draw his weapon here. Oscar is fully restrained, with another officer’s knee pressed to the back of his neck. Mehserle should have been pulling out handcuffs, not his gun. Additionally, pulling a gun on someone who is pinned down and facing the opposite direction doesn’t exactly have a deterrent effect. If Mehserle drew his weapon for that reason, he wasn’t thinking clearly.

On these facts, Officer Mehserle should at least be charged with manslaughter, and possibly murder as his actions were reckless and may have constituted a reckless disregard for Oscar Grant’s life. It will be interesting to see what he is charged with, assuming these facts constitute the official finding of the District Attorney.

Mehserle shoots Oscar intentionally in a fit of frustration, then quickly re-holsters his weapon while looking around as if to make sure no one has seen what he has done.

From the video alone, it is unlikely that the Alameda District Attorney will make this finding of fact. If we look at this incident in the context of that evening, however, the puzzle pieces tend to fit. Reports have surfaced indicating that Mehserle’s unit was at the tail end of a highly stressful New Year’s Eve, having confiscated a weapon and broken up a fistfight in earlier incidents that evening. It’s not a stretch to conclude that Mehserle had reached his breaking point.

On these facts, the charge should depend on Officer Mehserle’s general disposition. If he has a reputation as a hothead, he should be charged with murder. However, if he is a normally cool-headed cop placed in an volatile situation, I can see a reduced charge of manslaughter as just.

I will be shocked if the Alameda County DA pursues a murder case, however, even if there is ample evidence to support it. There is a a long history of cops shooting African-Americans and getting off light.

This tragedy is compounded by the fact that Oscar Grant has a young daughter, and Officer Mehserle’s wife gave birth to her first child within a day of the shooting.

Update: This video is about ten minutes and doesn’t have a good angle on the shooting itself, but the camerawoman gives an interview after the raw footage explaining what she saw. To sum it up, it’s even worse than I described above. According to this witness, the cops were beating Oscar Grant while he was immobile, before shooting him. The camerawoman also claims that an officer demanded that she relinquish her camera.

Ninth Circuit Again Endorses Religious Discrimination
December 16, 2008, 12:32 pm
Filed under: Uncategorized | Tags: ,

Last Friday, the Ninth Circuit decided Sklar v. Commissioner of Internal Revenue, upholding the IRS’s favorable treatment of the Church of Scientology, and refusal to extend similar benefits to any other religion. The background of this bizarre case likely traces to the 1980s, and it appears certain to extend past this decade as well.

In 1993, Michael and Marla Sklar, Orthodox Jews with five school-age children, learned that the IRS had settled a longstanding dispute with the Church of Scientology. The Church, known to intimidate its oppressors with armies of lawyers, had so thoroughly annoyed and exhausted the IRS that the Service caved in, allowing Scientology members to deduct past and future expenses for Church classes. The Sklars promptly amended their prior-year returns, claiming tuition payments to their kids’ Orthodox day school as deductible. The IRS disallowed the deductions and the Sklars, of course, sued.

The Tax Court and the Ninth Circuit agree that the policy is facially discriminatory, meaning that the policy must be supported by a compelling governmental interest. This is otherwise known as strict scrutiny, a standard that it is almost impossible for the government to overcome in defending a discriminatory policy. So the Sklars should be able to get their deduction, right?

Wrong. The Ninth Circuit held that even though the religious discrimination here is unconstitutional, the Sklars have no constitutional remedy. More specifically, the court found that granting the Sklars their deduction would violate the tax code (as did the Scientologists’ deductions), and amount to further unconstitutional discrimination against other religions. In other words, the Ninth Circuit relied on this old chestnut:

Two wrongs don’t make a right. [citation needed]

Well, they didn’t really say that, but that’s how it would have appeared if published on Wikipedia.

What they really said is much more appalling:

“…We would be reluctant ever to presume that Congress or any agency of the government would intend that a general religious preference be adopted, by extension or otherwise, as such preferences raise the highly sensitive issue of state sponsorship of religion. In the absence of clear expression of such intent, we would be unlikely to consider extending a policy favoring one religion where the effect of our action would be to create a policy favoring all.”

Great. So that means government agencies have a safe harbor to discriminate as long as they don’t come out and announce that they’re being discriminatory?

What this amounts to, logically, is that a policy that discriminates based on religion can survive strict scrutiny because the government has a compelling interest in being able to settle cases involving vexatious litigants. Observing that the Sklars have been pursuing these claims for over 15 years, how much more annoying do they have to be to get the IRS to cave?

75 Years of Freedom
December 5, 2008, 9:56 am
Filed under: Uncategorized | Tags:

Today marks the 75th anniversary of the ratification of the 21st Amendment, which repealed Prohibition.

Ethan Nadelmann, Executive Director of the Drug Policy Alliance Network, writes about it in relation to the current war on drugs in the Wall Street Journal today.

Edith Rodriguez Update
December 4, 2008, 6:15 pm
Filed under: Uncategorized | Tags: , ,

I have been seething with rage about this story for about a year and a half now.

Earlier today, Los Angeles County inadvertently released an internal report admitting that Edith Rodriguez, who was left to die on the floor of now-shuttered King-Harbor Hospital, would have been saved had hospital personnel taken her seriously. The admission stands at odds with L.A. County prosecutors, who declined to press charges against the medical staff, claiming that “prompt intervention would not have saved her life.”

We can now add Los Angeles District Attorney Steve Cooley to the long list of people who stood by and did nothing to help Edith Rodriguez.

The case was the final nail in the coffin for King-Harbor, which closed after having been under investigation by federal authorities for similar lapses in patient care. Unsurprisingly, the hospital sat between Compton and Watts, two of the poorest and most heavily black communities in the America.

Well, it was the final nail in the coffin. State Senator Mark Ridley-Thomas is leading an effort to reopen the hospital. I will reserve judgment on whether this is a wise move because I don’t know what measures have been taken to improve quality of care if the hospital does in fact reopen.

Please take a moment in Edith’s name to visit one of my favorite bloggers on Daily Kos, nyceve, whose Murder By Spreadsheet series has shed a deservedly harsh light on the callous greed that dominates the health insurance industry.

If you’re not aware of Edith’s story, here’s my post on Daily Kos on the incident published about a month after it happened last year, reproduced here in its entirety.

Originally published June 13, 2007

King-Harbor Hospital in Los Angeles (formerly King/Drew) has had more than its share of problems. What happened there to Edith Rodriguez on May 9, however, is so obscene that the hospital no longer deserves to have Dr. Martin Luther King as its namesake. The reason why this story isn’t as big or bigger than the Rodney King beating is beyond me.

From the AP story:

A woman who lay bleeding on the emergency room floor of a troubled inner-city hospital died after 911 dispatchers refused to contact paramedics or an ambulance to take her to another facility, newly released tapes of the emergency calls reveal.

Okay, so she was already at the hospital. No sense in wasting emergency resources, right?


Relatives said Rodriguez was bleeding from the mouth and writhing in pain for 45 minutes while she was at a hospital waiting area. Experts have said she could have survived had she been treated early enough.

Wow, 45 minutes on the floor bleeding from her mouth? That’s pretty shocking, but it was probably a mistake, right? They were just too busy, right?


…she died as police were wheeling her out of the hospital after the officers they had asked to help Rodriguez arrested her instead on a parole violation.

You can’t be serious. Police actually arrested a woman who was dying on the floor of a hospital awaiting medical attention? Have the cops been arrested yet?

From the ABC News story, a portion of one of two 911 calls:

911 Operator: “What’s wrong with her?,” the 911 operator asked.

Prado: “She’s vomiting blood.”

The operator then questions why hospital officials are not helping Rodriguez.

Prado: “They’re watching her and they’re not doing anything. Just watching her.”

She’s vomiting blood? And they’re just watching? And the police arrested a woman who was vomiting blood in a hospital???

I wonder if she’d have been charged with resisting arrest if she’d survived.

It gets worse. Here’s some dialogue from the second call:

“I cannot do anything for you for the quality of the hospital there,” the operator says. “This line is for emergency purposes only.”

“May [God] strike you too for acting the way you are,” the caller responds. The operator says, “No negative, ma’am. You’re the one.”

Okay, so the 911 operator’s gonna get fired, right?

The supervisor of that second dispatcher said his tone on the call was inappropriate.

His tone was inappropriate? His tone was inappropriate?

The medical director of the hospital has been ousted for his handling of an unrelated lapse in patient care.

An unrelated lapse?

From the LA Times:

At one point, a janitor cleaned around her.

Oh. My. God.

And this, from the AP again, sums it all up:

Her death was ruled accidental by the Los Angeles County coroner’s office.

It’s time to take Dr. King’s name off that hospital. And then can we fire and arrest everyone who had a chance to help Edith Rodriguez and did not? This is the petition.

One Hell of a Trip
December 3, 2008, 7:41 pm
Filed under: Uncategorized | Tags: ,

Apparently the Mumbai commando terrorists were hopped up on coke and LSD so they could stay awake during their three day rampage. I guess President Bush was right–the war on drugs really is related to the war on terror!

Or not. Here’s evidence that that the war on drugs undermines the war on terror. And an excerpt:

“…the misguided US poppy eradication campaign in Afghanistan has enabled the Taliban to earn enormous profits from the illegal drug trade. Most of these profits are only possible because the US and its allies have prevented competition from legal suppliers by targeting their poppy fields.”

This is the most compelling reason to end the war on drugs: the Taliban will have to tighten its belt.

This is your brain on drug laws.
December 2, 2008, 5:25 pm
Filed under: Uncategorized | Tags:

Please take a moment to check out the Drug Law Blog.

And this brilliant post from a couple years ago: How to Make Drugs Boring, In Five Simple Steps.  Here’s an excerpt:

Tell People What Will Actually Happen If They Take Drugs

Would you sit through a whole football game or an episode of American Idol if you already knew how it was going to come out? Well, some people might if they had a big bag of chips to eat, but a lot of people would find that really boring. The drama is deflated when you know the outcome in advance. It can work the same way with drugs, which will ruin most of the fun. If mysterious, metaphorical ad campaigns that compared drug use to scrambling an egg were replaced by detailed descriptions of what effects drugs actually produce, how long their effects last, possible health risks, and so forth, it would be a heck of a lot harder to have any kind of drug adventure at all. You would know what was going to happen before you even started, which is not interesting. And if drugs were produced in a way that kept their quality and potency uniform over time, taking a regular dose of some now-exotic drug like cocaine or methamphetamine might not be so risky. It might be like drinking a six pack of Miller Lite, which is not sexy or chic. Miller Lite is boring.

Now, go read the whole post.