Instead of doing a "classic" post today, I wanted to take this opportunity to put out a call for anyone interested in doing a guest post on this blog. I've just recently investigated the idea, and think it would provide some value to my readers to be able to put up a relevant guest post on occasion. By "relevant" I would mean a post from someone with some level of expertise on topics I cover. A non-exhaustive list of examples would be a tax accountant talking about the impact separation and divorce has on taxes, a financial planner talking about updating your financial plans following the property division that comes with a divorce, a realtor talking about picking out investment homes to potentially rent out in the future, a criminal defense attorney going into more detail about criminal law matters I've covered, and so on.
A guest post would have advantages for everyone involved. It would give me the opportunity to provide my readers with a perspective I cannot provide them with otherwise, it would give my readers the chance to get some extra information about topics I cover, and it would give you a chance to expose your business to my readers - which at this point is a small but steadily growing number of people across Virginia. Because I have discovered that people all over Virginia read this blog, I do not require a guest blogger to be located in the same part of Virginia as I am - in fact, I would be thrilled to have guest bloggers from other parts of the state.
The rules would be fairly simple. E-mail me at SLeven@thebaldwinlawfirm.com to let me know you're interested, what your expertise is, what you plan to post about, and, if I don't already know you, give me some way to verify who you are and your qualifications. If I approve, you will write the post (800-1200 words) and e-mail it to me. I will review it to ensure that it complies with the Virginia Rules of Professional Conduct for me to post, and if it does, I will go ahead and add a header and footer indicating who wrote it, that any opinions expressed are your own, and providing a link to your website. I will then run it all by you for a final time, and if you approve, I will post it. If I find that changes are necessary, I will let you know what needs to be changed.
This is a standing offer, so I do not have a deadline by which you have to let me know you're interested. Due to the holiday, however, I do not plan to post this upcoming Thursday, and probably will not next Thursday, either, so this post should be at the top of my blog for a little while.
Tuesday, December 23, 2014
Thursday, December 18, 2014
Virginia Commercial Landlord/Tenant Law - An Introduction
As always, before reading this post please review my disclaimer by following the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
It's no secret that I talk about landlord/tenant law on this blog a lot. Despite landlord/tenant work being only about 30% of my practice (Family Law is about 50%, and a combination of other practice areas make up the other 20%), most of the time where I am faced with a problem caused by someone acting outside the law, it's a landlord/tenant case. For this reason, I have not only focused on landlord/tenant law, but specifically residential landlord/tenant law - the law covering landlord/tenant relationships where the tenant lives in the leased property. But there is a whole other field of landlord/tenant law that I work in which is also important for many people, especially small business owners, to understand - commercial landlord/tenant law.
Commercial landlord/tenant law is the law covering landlord/tenant relationships where the tenant is primarily renting the property in order to run a business out of the property. Most businesses, especially small businesses, do not own the building or store that they operate out of, rather most rent, and commercial landlord/tenant law governs their transactions. Commercial landlord/tenant law is, in many ways, radically different than residential landlord/tenant law, so I cannot hope to cover it all in one blog post. Instead, today I hope to give you a brief introduction to commercial landlord/tenant law.
VRLTA vs. Title 55, Chapter 13 vs. Something else?
I have talked over and over again about how important it is to know what law governs your lease - the Virginia Residential Landlord and Tenant Act ("VRLTA") or Title 55, Chapter 13 of the Code of Virginia. Well, for commercial leases, the answer is "neither." Virginia Code Section 55-248.5(A)(7) explicitly excludes commercial leases from coverage under the VRLTA. Meanwhile, while there are parts of Title 55, Chapter 13 that impose some restrictions on commercial landlord/tenant relationships, pretty much all of the important ones (5 day pay or quit notices, 21/30 notice rights, rights against self-help, etc.) are explicitly limited to residential leases.
As a result, commercial leases are almost exclusively governed by common law principles and contract law. With rare exception, what it says in a lease goes, especially since even those Code provisions that do cover commercial leases do not have non-waiver clauses.
"Default Rules"
So, let's talk for a minute about the default rules for the common law. In this example, you have a commercial lease that just says "Landlord leases property to tenant for tenant's business at a rate of $x per month for 12 months." I've never seen a commercial lease like that, but it's a good starting point, because if you have a lease like that, the "default rules" apply. The default rules are what the common law says should happen, but can be changed by provisions of the lease itself. Here are what I consider the most important "default rules" in commercial leases:
Typical Changes
Because the common law is so weak (I mean this in the sense that it can almost entirely be waived by contract), most commercial leases are actually very long, as businesses typically have their own way they want leases to be governed. Moreover, the power balance between landlords and tenants is much less tilted towards landlords in commercial law than residential law, so tenants are much more likely to actively negotiate their leases.
The result of this is that many of the above common law defaults do not actually apply to commercial leases. Most leases I have dealt with, for example, have notice provisions. This actually makes sense even from a landlord's perspective, because an eviction is typically much more expensive than just having your tenant correct the problem. Additionally, while few outright ban self-help, many provide incentives for not using self-help (for example, attorney's fees only being available if you go to court instead of self-helping).
The end result is that if you are analyzing a commercial landlord/tenant situation, you need to not only understand the law, but also deeply understand the lease. In residential leases, you can ignore whole provisions since you know the law governs and cannot be waived in some instances. You do not get that luxury with commercial leases.
Conclusion
As you can see from the above, commercial leases are really a whole separate area of landlord/tenant law than residential leases. Very few statutes apply to them, almost everything is waivable, and there are complex common law rules that date back centuries that apply. If you are considering drafting or signing a commercial lease, or are involved in a commercial landlord/tenant dispute and would like legal assistance, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!
Introduction
It's no secret that I talk about landlord/tenant law on this blog a lot. Despite landlord/tenant work being only about 30% of my practice (Family Law is about 50%, and a combination of other practice areas make up the other 20%), most of the time where I am faced with a problem caused by someone acting outside the law, it's a landlord/tenant case. For this reason, I have not only focused on landlord/tenant law, but specifically residential landlord/tenant law - the law covering landlord/tenant relationships where the tenant lives in the leased property. But there is a whole other field of landlord/tenant law that I work in which is also important for many people, especially small business owners, to understand - commercial landlord/tenant law.
Commercial landlord/tenant law is the law covering landlord/tenant relationships where the tenant is primarily renting the property in order to run a business out of the property. Most businesses, especially small businesses, do not own the building or store that they operate out of, rather most rent, and commercial landlord/tenant law governs their transactions. Commercial landlord/tenant law is, in many ways, radically different than residential landlord/tenant law, so I cannot hope to cover it all in one blog post. Instead, today I hope to give you a brief introduction to commercial landlord/tenant law.
VRLTA vs. Title 55, Chapter 13 vs. Something else?
I have talked over and over again about how important it is to know what law governs your lease - the Virginia Residential Landlord and Tenant Act ("VRLTA") or Title 55, Chapter 13 of the Code of Virginia. Well, for commercial leases, the answer is "neither." Virginia Code Section 55-248.5(A)(7) explicitly excludes commercial leases from coverage under the VRLTA. Meanwhile, while there are parts of Title 55, Chapter 13 that impose some restrictions on commercial landlord/tenant relationships, pretty much all of the important ones (5 day pay or quit notices, 21/30 notice rights, rights against self-help, etc.) are explicitly limited to residential leases.
As a result, commercial leases are almost exclusively governed by common law principles and contract law. With rare exception, what it says in a lease goes, especially since even those Code provisions that do cover commercial leases do not have non-waiver clauses.
"Default Rules"
So, let's talk for a minute about the default rules for the common law. In this example, you have a commercial lease that just says "Landlord leases property to tenant for tenant's business at a rate of $x per month for 12 months." I've never seen a commercial lease like that, but it's a good starting point, because if you have a lease like that, the "default rules" apply. The default rules are what the common law says should happen, but can be changed by provisions of the lease itself. Here are what I consider the most important "default rules" in commercial leases:
- If the tenant breaches the lease in any way (non-payment of rent or otherwise), the landlord has the right to immediately terminate the lease without advanced notice or giving the tenant an opportunity to fix the breach.
- A landlord may self-help - he may come in, change the locks, remove all of the tenant's property, and retake possession of the property, all without going to court.
- If the landlord breaches the lease, the tenant may file a suit for rescission to have the lease terminated. There is no such thing as a Tenant's Assertion for commercial leases.
- The tenant may not self-help by refusing to pay rent. The tenant may self-help by fixing the problem himself and then demanding reimbursement from the landlord.
- If the landlord sues for non-payment of rent, the tenant may raise as a defense "constructive eviction," meaning flaws with the property were so serious the tenant could not continue to use the property. Constructive eviction can negate any unpaid rent due, but it does not give the tenant a right to return to the property.
- If the landlord sues for non-payment of rent, the tenant may raise as a defense "recoupment," meaning the flaws with the property were so serious that they diminished the value of the property to the tenant and so the tenant should not have had to pay rent in full. Recoupment can negate some or all unpaid rent, but it does not give the tenant a right to return to the property.
- Even though a landlord has the right to self-help, the landlord may still file an Unlawful Detainer in the General District Court and get a court order for possession enforced by the sheriff. Doing this protects the landlord from potential liability for an unlawful eviction (if it later turns out the tenant was not in breach and the landlord self-helped, the landlord can get in a whole heap of trouble), and also protects the landlord from potential liability for any damage done to the tenant's personal property in the course of the eviction.
- Unlawful detainers for commercial leases are exempt from the General District Court's jurisdictional maximum of $25,000 (so, an unlawful detainer in a residential lease where more than $25,000 is owed must be filed with the Circuit Court, but a commercial lease can be filed in the General District Court no matter how much is due).
Typical Changes
Because the common law is so weak (I mean this in the sense that it can almost entirely be waived by contract), most commercial leases are actually very long, as businesses typically have their own way they want leases to be governed. Moreover, the power balance between landlords and tenants is much less tilted towards landlords in commercial law than residential law, so tenants are much more likely to actively negotiate their leases.
The result of this is that many of the above common law defaults do not actually apply to commercial leases. Most leases I have dealt with, for example, have notice provisions. This actually makes sense even from a landlord's perspective, because an eviction is typically much more expensive than just having your tenant correct the problem. Additionally, while few outright ban self-help, many provide incentives for not using self-help (for example, attorney's fees only being available if you go to court instead of self-helping).
The end result is that if you are analyzing a commercial landlord/tenant situation, you need to not only understand the law, but also deeply understand the lease. In residential leases, you can ignore whole provisions since you know the law governs and cannot be waived in some instances. You do not get that luxury with commercial leases.
Conclusion
As you can see from the above, commercial leases are really a whole separate area of landlord/tenant law than residential leases. Very few statutes apply to them, almost everything is waivable, and there are complex common law rules that date back centuries that apply. If you are considering drafting or signing a commercial lease, or are involved in a commercial landlord/tenant dispute and would like legal assistance, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!
Tuesday, December 16, 2014
Classic Law is Your Friend: Virginia Tenant's Assertion
First of all, I realized today that I forgot to post last week. I must send my sincerest apologies. Last week, I had to spend all day Tuesday in a class in Washington, DC (I've just been admitted to the Bar there and am trying to get up to speed so that I can take cases there in the near future), then I was in court most of the day Thursday and Friday, so again, I am sorry about the oversight.
Today's classic blog post discusses tenant's assertions - one of the options available to tenants with abusive landlords who violate their lease and the law. It was originally posted on November 13, 2013 and was titled "Avoiding Tenant 'Self-Help' Part 1 - Tenant's Assertions."
Where I felt it necessary, I have added a few lines here and there. Additions that were not in the original blog post will be in brackets ([]).
As always, before reading my post, please review my disclaimer by clicking on the link above, or by following this link. As always, any principles discussed apply only to the Commonwealth of Virginia.
Introduction
Most of my regular readers will remember my post from several months ago talking about how it is improper when in a landlord/tenant dispute to engage in self-help. Self-help, again, is what happens when, without a signed agreement with the other party, and without court approval, you take action altering the terms of your lease (a non-exhaustive list of examples as a tenant is withholding rent or fixing damage yourself, while for landlords can be changing the locks, cutting off power, etc.). If you engage in self-help, even if you are legally in the right, the consequences can be very severe - heavy imposition of damages, injunctions, attorneys' fee awards, etc. [Not to mention eviction if you are a tenant.] As a result, it is important you avoid self-help.
Since posting my "don't do self-help" post in July [of 2013], however, I've gotten numerous questions about what the alternatives are. Since the alternative is generally clear for landlords (legal eviction proceedings), nearly all the questions I get, and nearly all the examples of improper self-help I see, involve tenants. While I do present these alternatives in my July post about self-help, my presentation is short, and probably not very helpful. As a result, starting this week, I've decided to start a multi-part series discussing each of the options available to a tenant whose landlord is in active violation of the lease. Today's post will discuss a legal proceeding known as a "Tenant's Assertion."
VRLTA vs. Common Law/Chapter 13 Lease
Regular readers will again remember that it makes a substantial difference in many areas of landlord/tenant law whether your lease is covered by the Virginia Residential Landlord and Tenant Act, or if it is a Common Law/Chapter 13 lease. While it is still true in this area of landlord/tenant law, this is not nearly to the extent that it used to be. Prior to 2011, the only remedy a non-VRLTA tenant had to a breach of the lease by the landlord was an after-the-fact lawsuit for damages. The law changed in 2011, however, and now, while not identical, the rights of tenants regarding a tenant's assertion are largely similar. In fact, the only difference that seems relevant to me is that a non-VRLTA lease could theoretically waive the tenant's right to pursue an assertion (I say only theoretically because I am aware of no court case to this point directly dealing with that issue) while such a provision would be barred in a VRLTA lease by Va. Code Section 55-248.9(A)(1).
What Is A Tenant's Assertion?
So, before getting started, you might be wondering what a tenant's assertion actually is. This is an action where the tenant "asserts" that the landlord is in active violation of the lease or the law, and that a remedy is necessary in order for the tenant to properly enjoy his rights to possession of the property. A tenant's assertion is primarily for people who either want a problem fixed without having to move out of the property, or want their lease actively terminated by the court, instead of engaging in the notice termination (which I will discuss in part 2) and then potentially being sued by the landlord. The major disadvantage is that a tenant's assertion, under either VRLTA or common law leases, usually cannot win attorneys' fees, while other actions sometimes can. I generally recommend a tenant's assertion to tenant clients who like their home except for the issue causing their complaint, cannot find a new place to rent, or just cannot stand the thought of the uncertainty that comes with a notice termination.
Pre-Conditions to a Tenant's Assertion
The law for tenant's assertions is laid out for non-VRLTA tenants in Va. Code Section 55-225.12 and for VRLTA tenants in Va. Code Section 55-248.27. You will notice the two sections are very similar but have some differences. Both sections include the following required pre-conditions to a tenant's assertion:
While Assertion is Pending
While your tenant's assertion is pending, you must continue to pay your rent in full. Instead of paying it to your landlord, however, you must pay it to the court. If you don't pay your full amount of rent to the court within 5 days of its due date your assertion will be dismissed, the money you've paid to the court will be released to the landlord, and you start over again. If you do, however, your money is held in escrow. This is the true advantage of a tenant's assertion over an after-the-fact lawsuit. If you win damages, your escrow gives you a source from which you can collect immediately, instead of having to engage in post-judgment collections.
Trial
Somewhere around 5 weeks after filing your assertion, assuming it is contested, you will have a trial. It's important to note that both the VRLTA and non-VRLTA assertion statutes allow as a complete defense a landlord to say "the condition's been fixed." This means, if the landlord fixes the problem while the assertion is pending, your assertion will lose, even if it was proper at the start! The remedy to this is to try to convince the judge to let you amend your case to a warrant in debt for damages, then still seek any monetary damages you may have suffered (you may even be able to still pull that money out of escrow).
If, however, the condition does remain as of the date of trial, you must prove the following things in order to win your assertion:
It is very rare for a trial to end a tenant's assertion unless the landlord prevails. Instead, some form of continuing of the escrow account usually occurs. If this is the case, no escrow money can be distributed without a hearing, so there may be occasional hearings going forward to decide what to do with escrow money, or if a party is not following the terms of the order. Perhaps the most serious issue, however, is that if the condition is not remedied within six months of the date the escrow account was established, the court is then required to return to the tenant all money then in the escrow account (unless the landlord can prove he has made a reasonable effort to finish the repairs). When that happens, though, the escrow is not terminated, but a new six month period begins.
The assertion really does not end until the condition is repaired and/or the lease has ended, and all money in escrow has been distributed.
Conclusion
When a landlord is in violation of his lease obligations, a tenant's assertion is a very robust and flexible means for a tenant to assert his or her rights without risking a lawsuit from the landlord, and without necessarily having to terminate the tenancy. If you are in a landlord/tenant dispute that already involves, or may require, a tenant's assertion, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to discuss representation. Our initial consultations are free for up to half an hour!
Today's classic blog post discusses tenant's assertions - one of the options available to tenants with abusive landlords who violate their lease and the law. It was originally posted on November 13, 2013 and was titled "Avoiding Tenant 'Self-Help' Part 1 - Tenant's Assertions."
Where I felt it necessary, I have added a few lines here and there. Additions that were not in the original blog post will be in brackets ([]).
As always, before reading my post, please review my disclaimer by clicking on the link above, or by following this link. As always, any principles discussed apply only to the Commonwealth of Virginia.
Introduction
Most of my regular readers will remember my post from several months ago talking about how it is improper when in a landlord/tenant dispute to engage in self-help. Self-help, again, is what happens when, without a signed agreement with the other party, and without court approval, you take action altering the terms of your lease (a non-exhaustive list of examples as a tenant is withholding rent or fixing damage yourself, while for landlords can be changing the locks, cutting off power, etc.). If you engage in self-help, even if you are legally in the right, the consequences can be very severe - heavy imposition of damages, injunctions, attorneys' fee awards, etc. [Not to mention eviction if you are a tenant.] As a result, it is important you avoid self-help.
Since posting my "don't do self-help" post in July [of 2013], however, I've gotten numerous questions about what the alternatives are. Since the alternative is generally clear for landlords (legal eviction proceedings), nearly all the questions I get, and nearly all the examples of improper self-help I see, involve tenants. While I do present these alternatives in my July post about self-help, my presentation is short, and probably not very helpful. As a result, starting this week, I've decided to start a multi-part series discussing each of the options available to a tenant whose landlord is in active violation of the lease. Today's post will discuss a legal proceeding known as a "Tenant's Assertion."
VRLTA vs. Common Law/Chapter 13 Lease
Regular readers will again remember that it makes a substantial difference in many areas of landlord/tenant law whether your lease is covered by the Virginia Residential Landlord and Tenant Act, or if it is a Common Law/Chapter 13 lease. While it is still true in this area of landlord/tenant law, this is not nearly to the extent that it used to be. Prior to 2011, the only remedy a non-VRLTA tenant had to a breach of the lease by the landlord was an after-the-fact lawsuit for damages. The law changed in 2011, however, and now, while not identical, the rights of tenants regarding a tenant's assertion are largely similar. In fact, the only difference that seems relevant to me is that a non-VRLTA lease could theoretically waive the tenant's right to pursue an assertion (I say only theoretically because I am aware of no court case to this point directly dealing with that issue) while such a provision would be barred in a VRLTA lease by Va. Code Section 55-248.9(A)(1).
What Is A Tenant's Assertion?
So, before getting started, you might be wondering what a tenant's assertion actually is. This is an action where the tenant "asserts" that the landlord is in active violation of the lease or the law, and that a remedy is necessary in order for the tenant to properly enjoy his rights to possession of the property. A tenant's assertion is primarily for people who either want a problem fixed without having to move out of the property, or want their lease actively terminated by the court, instead of engaging in the notice termination (which I will discuss in part 2) and then potentially being sued by the landlord. The major disadvantage is that a tenant's assertion, under either VRLTA or common law leases, usually cannot win attorneys' fees, while other actions sometimes can. I generally recommend a tenant's assertion to tenant clients who like their home except for the issue causing their complaint, cannot find a new place to rent, or just cannot stand the thought of the uncertainty that comes with a notice termination.
Pre-Conditions to a Tenant's Assertion
The law for tenant's assertions is laid out for non-VRLTA tenants in Va. Code Section 55-225.12 and for VRLTA tenants in Va. Code Section 55-248.27. You will notice the two sections are very similar but have some differences. Both sections include the following required pre-conditions to a tenant's assertion:
- A condition must exist on the property that allows an assertion to be approved. This condition must be a "material" violation of the lease or of the law, a fire hazard or serious threat to the life, health or safety of occupants, a lack of heat or hot or cold running water, a lack of light, electricity or adequate sewage disposal facilities, an infestation of rodents, or the existence of paint containing lead pigment on surfaces within the dwelling
- The landlord must have been "served" with a written notice from the tenant or a state agency of the condition and failed, within a reasonable amount of time after that service, to fix the condition (note that more than 30 days is presumed unreasonable)
- The condition must remain up to the day of the trial
- The "condition" on the property cannot be a rodent infestation if the property is a single-family dwelling (namely a detached home or townhouse).
- Va. Code Section 55-248.4 allows notices to be served simply by first-class mail as long as you also simultaneously swear out a certificate that you've sent the mail. The non-VRLTA tenant needs to serve notice either by formal service, or by certified mail (unless he can show proof that the landlord actually received the notice).
While Assertion is Pending
While your tenant's assertion is pending, you must continue to pay your rent in full. Instead of paying it to your landlord, however, you must pay it to the court. If you don't pay your full amount of rent to the court within 5 days of its due date your assertion will be dismissed, the money you've paid to the court will be released to the landlord, and you start over again. If you do, however, your money is held in escrow. This is the true advantage of a tenant's assertion over an after-the-fact lawsuit. If you win damages, your escrow gives you a source from which you can collect immediately, instead of having to engage in post-judgment collections.
Trial
Somewhere around 5 weeks after filing your assertion, assuming it is contested, you will have a trial. It's important to note that both the VRLTA and non-VRLTA assertion statutes allow as a complete defense a landlord to say "the condition's been fixed." This means, if the landlord fixes the problem while the assertion is pending, your assertion will lose, even if it was proper at the start! The remedy to this is to try to convince the judge to let you amend your case to a warrant in debt for damages, then still seek any monetary damages you may have suffered (you may even be able to still pull that money out of escrow).
If, however, the condition does remain as of the date of trial, you must prove the following things in order to win your assertion:
- That the condition is, in fact, of the type listed in the statute (material noncompliance with lease or law, hazard to health and safety, etc.),
- That the condition still exists,
- That notice was properly given to the landlord, or that the landlord had actually received notice even if not properly given,
- That the landlord was given a reasonable amount of time to remedy the problem before the assertion was filed, and
- That you have paid all rent, in full, into the court while the assertion has been pending.
- Terminating the lease,
- Dividing some or all of the money in the escrow account between the tenant and/or landlord as the court sees fit,
- Ordering the escrowing of rent continue until the repairs are complete,
- Abating rent prospectively and/or retroactively,
- Ordering money in escrow be paid directly to a contractor in order to repair the property,
- Referring the matter to a state or municipal agency for investigation, and
- Ordering escrow funds be used to pay a mortgage in order to prevent foreclosure.
It is very rare for a trial to end a tenant's assertion unless the landlord prevails. Instead, some form of continuing of the escrow account usually occurs. If this is the case, no escrow money can be distributed without a hearing, so there may be occasional hearings going forward to decide what to do with escrow money, or if a party is not following the terms of the order. Perhaps the most serious issue, however, is that if the condition is not remedied within six months of the date the escrow account was established, the court is then required to return to the tenant all money then in the escrow account (unless the landlord can prove he has made a reasonable effort to finish the repairs). When that happens, though, the escrow is not terminated, but a new six month period begins.
The assertion really does not end until the condition is repaired and/or the lease has ended, and all money in escrow has been distributed.
Conclusion
When a landlord is in violation of his lease obligations, a tenant's assertion is a very robust and flexible means for a tenant to assert his or her rights without risking a lawsuit from the landlord, and without necessarily having to terminate the tenancy. If you are in a landlord/tenant dispute that already involves, or may require, a tenant's assertion, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to discuss representation. Our initial consultations are free for up to half an hour!
Thursday, December 4, 2014
What Happened in Ferguson and New York
Introduction
As sometimes happens on this blog, at times I feel it necessary to step out of my usual format of getting into the nitty-gritty of areas of law I practice, and talk about current events. These posts will cover practice areas I do not practice, and do not intend to provide any practical considerations for someone going through the process - just to offer an explanation of what's happening. These posts tend to also be imbued with my own opinions.
It's very hard right now for me to think of doing a post on something other than the events in Ferguson and New York. Two grand juries have refused to indict two white police officers who killed two black men in the line of duty. Since then, I have been inundated with questions from friends about what it all means and what I think. In today's blog post, I'll cover a little bit about what happened, why I believe the grand jury got it wrong in both cases, my best guesses on why the grand juries didn't indict, and some thoughts on where the cases go from here.
So, what happened?
In Ferguson, Missouri back in August, a young black man named Michael Brown was jaywalking on a local street. A police officer asked him to stop jaywalking, and that's about where the generally accepted version of events ends. It picks up again with Michael Brown lying dead on the street, having been shot by the officer. The officer claims Mr. Brown attacked him, even reaching for his gun in the police car, began to flee, then turned around and charged at the officer. Several witnesses back up this claim. Other witnesses, however, say that Brown was attempting to surrender, but having already had an altercation, the officer shot him dead.
In New York, back in July, Eric Garner, a middle-aged black man, was suspected by several police officers of selling loose cigarettes. This is illegal because cigarette sales are tightly regulated and taxed, and privately selling individual cigarettes out of the pack is a form of tax evasion. Nonetheless, it is a relatively minor crime. Garner denied selling cigarettes, and when the officers moved to arrest him, he swatted their arms away. Treating this as resistance, the officers attempted to force him to arrest, with one officer placing Garner in a chokehold. Garner, who suffered from asthma, started saying over and over again (nine times in total) that he couldn't breathe, but the officer kept him in the chokehold until the other officers had him in handcuffs. As a result, Garner went into cardiac arrest and died. The facts are much less in dispute in Garner's case, since this was all caught on video.
In both cases, the police resisted conducting a criminal investigation at first, but public pressure finally forced them to. In both cases, a grand jury was convened to decide whether to bring charges against the officers involved. In both cases, the grand jury ultimately decided not to charge.
What is a "grand jury" anyways?
A grand jury (as opposed to a "petite jury," which is the technical name for a jury during a trial) is a group of citizens brought together to consider bringing criminal charges. In many states a felony charge can only brought by a grand jury. Grand juries are usually larger than petite juries, and usually hear more than one case when they are composed - however, if a case is especially complicated, they may hear only that one.
The only right a potential defendant has at a grand jury is to give the grand jury a statement. Otherwise, only the prosecutor can present evidence, and the prosecutor chooses what evidence to present. The prosecutor is not required to show a grand jury any evidence that might point to innocence. Further, the grand jury's burden of proof is "probable cause," usually defined as saying there is enough evidence to say that a reasonable person would believe a crime has been committed. This is a very low standard of proof. Much lower than the "beyond a reasonable doubt" of a criminal trial, even below the "preponderance of evidence" of a civil trial. If you were to express burdens of proof as "percent certainty" that something happened, I've usually heard it said that "beyond a reasonable doubt" is 95%, "clear and convincing evidence" is 75%, "preponderance of the evidence" is 50.1% and "probable cause" is 25%.
So, as you can imagine, the deck is usually stacked against defendants in a grand jury. Only the prosecutor presents evidence, he can choose what evidence to present, and the jurors basically need to think there's only about a 25% chance that a crime was committed to indict.
Why I think the grand juries got it wrong
I've looked at the documents and evidence presented to the grand jury in Ferguson. That information still hasn't been released in New York, but we do have a pretty clear picture of events from the video. I am convinced the grand juries made the wrong decision in both cases.
In Ferguson, there was conflicting testimony as to what occurred. That being said, conflicting testimony shouldn't matter at the grand jury stage - judging which witnesses are more credible is for a petite jury at trial, not a grand jury. Instead, the grand jury needs only look at the evidence to see if there is enough there to say there's a probable cause of criminal action. We had witnesses who stated that Mr. Brown was surrendering (suggesting, at a minimum, negligent homicide), and combined with a clean toxicology report and the fact that Mr. Brown suffered multiple gunshot wounds, that should have been more than enough to say there was probable cause for an indictment. It's entirely possible, I'd even say probable, that a trial would have resulted in a not guilty verdict given the high burden of proof there, but again, the grand jury's job is only to determine probable cause, and there was plenty of it here.
The New York decision is even more baffling, considering it was caught on tape and minimal facts are in dispute. I do not doubt the officer's account that he did not mean to harm Mr. Garner, but intent only matters for murder charges, not manslaughter or other charges that could be brought. Mr. Garner is clearly audible that he can't breathe, and chokeholds have actually been banned within the NYPD since the 1990's. Again, those facts alone, especially coupled with the medical examiner's finding that the cause of death was homicide, amount to fairly clear probable cause.
So what went wrong?
Well, as you can imagine, the vast, overwhelming number of cases that go to grand juries return indictments. I've once heard the number 99% thrown around, but I don't have evidence to back that up. However, in several studies, grand juries have been found to almost never return indictments against police officers who kill in the line of duty. Interestingly, this seems to be little affected by race, of the officer or the victim - the grand juries actually seem more blinded by police blue than any other color. The racial aspect seems to exist more in the fact that police officers are substantially more likely to kill black men than anyone else in the first place, rather than in how the grand jury handles it.
So, why is the indictment rate so low for police officers? Well, frankly, people respect police officers, are inclined to believe them, and prosecutors who work with the local police every day of the week are very disinterested in prosecuting them. This is why special prosecutors are usually needed, but almost never actually brought in.
Consider Ferguson for a moment. Remember what I said about there being conflicting testimony? Why did the grand jury even hear about it? Again, prosecutors control what the grand juries hear, the only right an accused has is to present his own statement. In Ferguson, however, the prosecutor presented the grand jury with the entire case, including statements from witnesses who agreed with the police officer's account. While the grand jury, as I explained above, should have dismissed those witnesses anyways, the prosecutor should never have presented him - I would even say that it seems like dereliction of duty that he did. It is hard to read anything into that choice other than that the prosecutor was intentionally trying to make the grand jury uncomfortable with the idea of indicting the officer.
Prosecutors who tank cases and citizens who trust the police make a dangerous combination for a grand jury. If you want my opinion of why grand juries tend not to indict police officers - that combination is it.
What happens next?
So, what's next in these cases? Well, what many people don't realize is that the decision not to indict is not like an acquittal. Because the accused never had a chance of actually being sentenced to jail time from a grand jury hearing, "jeopardy" never "attached." I could write entire blog posts about what that means, but the short answer is that there is no double jeopardy implication. If a prosecutor wanted to, or a governor wanted to appoint a special prosecutor, a new grand jury could be convened. Further, both officers are being investigated for committing possible civil rights violations. That's important because civil rights violations are federal crimes, and federal prosecutors don't have relationships with local police like state prosecutors do. As I recall, in fact, most of the time when police officers have actually been convicted for killing on the job, it's been in federal court (for example, many people don't remember that after the four officers accused of beating Rodney King were acquitted, touching off the Los Angeles Riots, three of them were indicted in federal court, with two of them ultimately being convicted and sent to jail).
In addition to possible federal charges or even a new state grand jury, the families of both Brown and Wilson have the right to file civil lawsuits against the officers and police forces for "wrongful death." Such civil cases have had some success in the past, and I would not be surprised if either family went forward with such an approach.
Conclusion
The events in Ferguson and New York can be very confusing to people who don't know the law. Some don't understand what a grand jury is, others don't understand how people could say the grand jury got it wrong. In this post, I hope I've at least touched on an explanation for those of you who may be confused.
As sometimes happens on this blog, at times I feel it necessary to step out of my usual format of getting into the nitty-gritty of areas of law I practice, and talk about current events. These posts will cover practice areas I do not practice, and do not intend to provide any practical considerations for someone going through the process - just to offer an explanation of what's happening. These posts tend to also be imbued with my own opinions.
It's very hard right now for me to think of doing a post on something other than the events in Ferguson and New York. Two grand juries have refused to indict two white police officers who killed two black men in the line of duty. Since then, I have been inundated with questions from friends about what it all means and what I think. In today's blog post, I'll cover a little bit about what happened, why I believe the grand jury got it wrong in both cases, my best guesses on why the grand juries didn't indict, and some thoughts on where the cases go from here.
So, what happened?
In Ferguson, Missouri back in August, a young black man named Michael Brown was jaywalking on a local street. A police officer asked him to stop jaywalking, and that's about where the generally accepted version of events ends. It picks up again with Michael Brown lying dead on the street, having been shot by the officer. The officer claims Mr. Brown attacked him, even reaching for his gun in the police car, began to flee, then turned around and charged at the officer. Several witnesses back up this claim. Other witnesses, however, say that Brown was attempting to surrender, but having already had an altercation, the officer shot him dead.
In New York, back in July, Eric Garner, a middle-aged black man, was suspected by several police officers of selling loose cigarettes. This is illegal because cigarette sales are tightly regulated and taxed, and privately selling individual cigarettes out of the pack is a form of tax evasion. Nonetheless, it is a relatively minor crime. Garner denied selling cigarettes, and when the officers moved to arrest him, he swatted their arms away. Treating this as resistance, the officers attempted to force him to arrest, with one officer placing Garner in a chokehold. Garner, who suffered from asthma, started saying over and over again (nine times in total) that he couldn't breathe, but the officer kept him in the chokehold until the other officers had him in handcuffs. As a result, Garner went into cardiac arrest and died. The facts are much less in dispute in Garner's case, since this was all caught on video.
In both cases, the police resisted conducting a criminal investigation at first, but public pressure finally forced them to. In both cases, a grand jury was convened to decide whether to bring charges against the officers involved. In both cases, the grand jury ultimately decided not to charge.
What is a "grand jury" anyways?
A grand jury (as opposed to a "petite jury," which is the technical name for a jury during a trial) is a group of citizens brought together to consider bringing criminal charges. In many states a felony charge can only brought by a grand jury. Grand juries are usually larger than petite juries, and usually hear more than one case when they are composed - however, if a case is especially complicated, they may hear only that one.
The only right a potential defendant has at a grand jury is to give the grand jury a statement. Otherwise, only the prosecutor can present evidence, and the prosecutor chooses what evidence to present. The prosecutor is not required to show a grand jury any evidence that might point to innocence. Further, the grand jury's burden of proof is "probable cause," usually defined as saying there is enough evidence to say that a reasonable person would believe a crime has been committed. This is a very low standard of proof. Much lower than the "beyond a reasonable doubt" of a criminal trial, even below the "preponderance of evidence" of a civil trial. If you were to express burdens of proof as "percent certainty" that something happened, I've usually heard it said that "beyond a reasonable doubt" is 95%, "clear and convincing evidence" is 75%, "preponderance of the evidence" is 50.1% and "probable cause" is 25%.
So, as you can imagine, the deck is usually stacked against defendants in a grand jury. Only the prosecutor presents evidence, he can choose what evidence to present, and the jurors basically need to think there's only about a 25% chance that a crime was committed to indict.
Why I think the grand juries got it wrong
I've looked at the documents and evidence presented to the grand jury in Ferguson. That information still hasn't been released in New York, but we do have a pretty clear picture of events from the video. I am convinced the grand juries made the wrong decision in both cases.
In Ferguson, there was conflicting testimony as to what occurred. That being said, conflicting testimony shouldn't matter at the grand jury stage - judging which witnesses are more credible is for a petite jury at trial, not a grand jury. Instead, the grand jury needs only look at the evidence to see if there is enough there to say there's a probable cause of criminal action. We had witnesses who stated that Mr. Brown was surrendering (suggesting, at a minimum, negligent homicide), and combined with a clean toxicology report and the fact that Mr. Brown suffered multiple gunshot wounds, that should have been more than enough to say there was probable cause for an indictment. It's entirely possible, I'd even say probable, that a trial would have resulted in a not guilty verdict given the high burden of proof there, but again, the grand jury's job is only to determine probable cause, and there was plenty of it here.
The New York decision is even more baffling, considering it was caught on tape and minimal facts are in dispute. I do not doubt the officer's account that he did not mean to harm Mr. Garner, but intent only matters for murder charges, not manslaughter or other charges that could be brought. Mr. Garner is clearly audible that he can't breathe, and chokeholds have actually been banned within the NYPD since the 1990's. Again, those facts alone, especially coupled with the medical examiner's finding that the cause of death was homicide, amount to fairly clear probable cause.
So what went wrong?
Well, as you can imagine, the vast, overwhelming number of cases that go to grand juries return indictments. I've once heard the number 99% thrown around, but I don't have evidence to back that up. However, in several studies, grand juries have been found to almost never return indictments against police officers who kill in the line of duty. Interestingly, this seems to be little affected by race, of the officer or the victim - the grand juries actually seem more blinded by police blue than any other color. The racial aspect seems to exist more in the fact that police officers are substantially more likely to kill black men than anyone else in the first place, rather than in how the grand jury handles it.
So, why is the indictment rate so low for police officers? Well, frankly, people respect police officers, are inclined to believe them, and prosecutors who work with the local police every day of the week are very disinterested in prosecuting them. This is why special prosecutors are usually needed, but almost never actually brought in.
Consider Ferguson for a moment. Remember what I said about there being conflicting testimony? Why did the grand jury even hear about it? Again, prosecutors control what the grand juries hear, the only right an accused has is to present his own statement. In Ferguson, however, the prosecutor presented the grand jury with the entire case, including statements from witnesses who agreed with the police officer's account. While the grand jury, as I explained above, should have dismissed those witnesses anyways, the prosecutor should never have presented him - I would even say that it seems like dereliction of duty that he did. It is hard to read anything into that choice other than that the prosecutor was intentionally trying to make the grand jury uncomfortable with the idea of indicting the officer.
Prosecutors who tank cases and citizens who trust the police make a dangerous combination for a grand jury. If you want my opinion of why grand juries tend not to indict police officers - that combination is it.
What happens next?
So, what's next in these cases? Well, what many people don't realize is that the decision not to indict is not like an acquittal. Because the accused never had a chance of actually being sentenced to jail time from a grand jury hearing, "jeopardy" never "attached." I could write entire blog posts about what that means, but the short answer is that there is no double jeopardy implication. If a prosecutor wanted to, or a governor wanted to appoint a special prosecutor, a new grand jury could be convened. Further, both officers are being investigated for committing possible civil rights violations. That's important because civil rights violations are federal crimes, and federal prosecutors don't have relationships with local police like state prosecutors do. As I recall, in fact, most of the time when police officers have actually been convicted for killing on the job, it's been in federal court (for example, many people don't remember that after the four officers accused of beating Rodney King were acquitted, touching off the Los Angeles Riots, three of them were indicted in federal court, with two of them ultimately being convicted and sent to jail).
In addition to possible federal charges or even a new state grand jury, the families of both Brown and Wilson have the right to file civil lawsuits against the officers and police forces for "wrongful death." Such civil cases have had some success in the past, and I would not be surprised if either family went forward with such an approach.
Conclusion
The events in Ferguson and New York can be very confusing to people who don't know the law. Some don't understand what a grand jury is, others don't understand how people could say the grand jury got it wrong. In this post, I hope I've at least touched on an explanation for those of you who may be confused.
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