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    Wednesday, October 04, 2006

    Bank of America Has Bad Check Recipient Arrested; SFPD Complicit

    Are you considering switching banks? If so, avoid Bank of America. I was considering switching to Bank of America because they pay slightly better interest than my bank. I will, however, no longer be considering Bank of America. Apparently, Bank of America thinks that the proper way to treat someone who has been paid with a fraudulent check is to have them arrested. And for some reason, the police just do this without even bothering to compare Bank of America's story to the story of the person to be arrested. If you think that I'm exaggerating, consider the following story.
    San Francisco resident Matthew Shinnick tried to sell a pair of mountain bikes on Craigslist. . . [an apparent potential buyer] said he was going to cut a check on his company's Bank of America business account and arrange to have the bikes shipped north. Shinnick said he received a check for $2,000 shortly after Christmas and was informed that the extra cash was to cover shipping costs "and for my trouble."(1)
    Mr. Shinnick was suspicious of the large check, and wanted to make sure it didn't bounce.(2) So he did what any responsible merchant would do -- he attempted to verify the check with Bank of America before cashing it.(3) His big mistake in all of this was trusting Bank of America to assist him in detecting a fraudulent check from one of their accounts. When he asked the Bank of America teller if the check would clear, she told him that "it was a valid account and that there were funds to cover it" (to be fair to Bank of America, they did not have knowledge at that time that anything was wrong with the check).(4)

    Mr. Shinnick should have had no further reason to be suspicious in this case. The bank teller would have told him if a check turned out to be fraudulent, right? Not Bank of America. Instead, when the Bank discovered that the check was fraudulent, they called the police -- they did not inform Mr. Shinnick that he had been scammed. The business account was real, but the check was phony, and the branch manager called the police to have Mr. Shinnick arrested.(5)

    This is where possible misconduct by the San Francisco Police Department comes into play. The arresting SFPD officers did not read Mr. Shinnick his rights.(6) They also may not have bothered to confirm the circumstances under which Mr, Shinnick came to endorse a phony check -- you know, the sort of thing they might do to make sure that they, in fact, had probable cause to make an arrest. It is only a crime to pass a bad check if you know it's a bad check (unless it's one of those crimes that don't require criminal intent -- like selling alcohol to a minor who has a really convincing fake ID). It should be noted that the police discussed the situation with Bank of America employees for about 45 minutes(7), so odds are, they were aware of all of the relevant facts.

    What is even more troubling is the police report, which says Shinnick "was taken into custody 'for the safety of the bank employees as well as the bank customers.'"(8) Why did they think he posed a threat to the bank? From Mr. Shinnick's perspective, it is more like the bank assaulted him (by having him arrested instead of trying to help him get to the bottom of the check problem), not the other way around. Of course, it could be that the police had reason to believe that he might feel antipathy toward the bank in the face of the treatment he had received. But the trouble is, this is like a police officer arresting someone who has just been punched in the face out of fear that he might retaliate against the person who assaulted him. This whole thing stinks and there has been, as far as I can tell, no investigations by the media into the reasoning used by police officers to decide that they had probable cause for an arrest. This is just another example of a pro-police bias in the media.

    To my knowledge, San Francisco Police Chief Heather Fong has not disavowed the actions of these officers, so I must conclude that she supports them (under the doctrine of respondeat superior, the police officers are her agents and she is therefore responsible for their actions).

    Matthew Shinnick was able to clear his name, but not before spending about 12 hours in jail and spending about $14,000 in legal fees.(9) He has asked Bank of America, as a good faith gesture, to cover his legal fees, since it was their malfeasance that caused those fees to be paid. Bank of America Vice President William Minnes (for whose actions Chairman, CEO, and President Kenneth D. Lewis should ultimately answer, if not legally, at least in a PR sense) has stated that the bank will not pay and cannot be compelled to. Minnes says that Bank of America "has no legal liability in the case because of the 2004 [California] Supreme Court ruling . . . [in] Hagberg vs. California Federal Bank."(10)
    "The court wants to protect people when reporting criminal activity," said Paul Glusman, a Berkeley attorney who has written about the Hagberg case. "But this can be abused. At this point, there's nothing that will protect ordinary citizens from a false police report."

    Jennifer Becker, a San Francisco attorney who specializes in malpractice cases, stressed that the intent of the court's decision is important. There shouldn't be repercussions for reporting a suspected crime, she said.(11)

    I concur with the sentiment that we don't want to discourage people from reporting crimes, and therefore, I presume the ruling in Hagberg to be correct, and therefore unassailable through practical means. Perhaps if Mr. Shinnick were to show malice on the part of Bank of America he would have a shot. Frankly, though, I think he has a better shot at suing the San Francisco Police Department. If it was not for their arresting him, he would not be out $14,000 (I am assuming that the expenditure was unavoidable, it may actually not have been). If they knew all of the facts, they might have reached the same conclusion as the judge -- that no crime was committed here. I don't think they reasonably could have thought that they had probable cause to arrest him (unless the Bank of America branch manager filed charges against Mr. Shinnick, in which case he should try to have the manager arrested for filing a false police report).

    There is one true thing that has come out of this mess. Bank of America's true nature is on display for all of us... and it's not pretty. So far, the closest they have come to an apology is to say that "clearly and without equivocation, Bank of America regrets what occurred."(12) William Minnes also said that "Bank of America can certainly understand that [Mr. Shinnick] is angry at the bank."(13) My concept of "being sorry" requires a personal compulsion to want to make things right if possible; I am not seeing that attitude from the bank. Bank of America believes that Hagberg sheilds them from liability in this case, and they're standing firm on that principle. Consumer advocate Clark Howard has launched a national challenge to Americans to withdraw their money from Bank of America, which I wholeheartedly support.(14) As of October 4th, 2006, it is reported that nearly $30,000, 000 has been withdrawn from Bank of America over this matter.(15) (Please note that due to the data input mechanism, the method for determining how much money Bank of America has lost may or may not be accurate).

    Despite the bad publicity and the loss of business Bank of America is experiencing in this matter, Bank of America has still refused to compensate Mr. Shinnick for the trouble and expense they caused him. Now that's dedication to principle. Mr. Shinnick's damages are only $14,000; Bank of America stands to lose millions. Clark Howard even offered to pay $7,000 himself if Bank of America would pay the other half. Senior Vice President Alexandra Trower refused on Bank of America's behalf.(16) Nice organization that's willing to take a huge financial hit just to avoid apologizing to a man they wronged.

    * * *

    "I believe that banking institutions are more dangerous to our liberties than standing armies. Already they have raised up a moneyed aristocracy that has set the government at defiance. The issuing power should be taken from the banks and restored to the people, to whom it properly belongs."
    --Thomas Jefferson

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    (1) David Lazarus. "Check from a scammer bounces victim into jail," San Francisco Chronicle, 2006 August 30, paras. 1 & 8, http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2006/08/30/BUGTGKRHSF1.DTL.
    (2) Ibid. para. 12.
    (3) Ibid. para. 13.
    (4) Ibid. paras. 14 & 18.
    (5) Ibid. paras. 18-19.
    (6) Ibid. paras. 19 & 21.
    (7) Ibid. para. 21.
    (8) Ibid. para. 20.
    (9) Ibid. paras. 1 & 30.
    (10) Ibid. paras. 32 & 34.
    (11) Ibid. paras. 37-38.
    (12) Ibid. para. 2.
    (13) Ibid. para. 31.
    (14) Clark Howard's Web Site, http://clarkhoward.com/; the audio clip of Clark Howard's Challenge is available at http://www.streamaudio.com/listen/cox.asp?station=clrk_ir&streamtype=
    archiveaudio&optin=no&filename=boa_challenge.asf
    .
    (15) Ibid; the Bank of America "Money Loss" Meter is available at http://clarkhoward.com/topics/boa_meter.html
    (16) Ibid. http://clarkhoward.com/shownotes/2006/09/25/#next


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    13 Comments:
    Blogger Urshanabi said...

    I like your studied analysis of this issue. I will be linking to you on my blog.

    10/05/2006 4:04 PM  
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    Blogger Urshanabi said...

    A little advice:

    I haven't been blogging as long as you, but I have been on the internet a long time. You shouldn't be responding to trolls, it only encourages them. . .unless you like messing with trolls, that is >:->

    10/05/2006 4:15 PM  
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    Blogger Urshanabi said...

    You might want to consider editing this article. If you read the Lazaras story carefully, Bank of America wasn't as guileful as you make them out to be.

    The teller knew there was a flag on tha account, but did not know the check was bad paper until she called the business, which was after he handed her the endorsed check.

    Bank of America's sin was in having him arrested instead of workig with him to get to the bottom of the matter.

    I suspect you read other blogs and listened to Clark Howard like I did. I didn't even realize my sequence of events was off until someone pointed it out to me. Just passing the favor along.

    10/05/2006 6:53 PM  
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    Blogger The Sovereign Editor said...

    Greetings, Urshanabi. Thank you for the helpful comments... I will edit my article immediately.

    I will also provide a link back to your web blog. Thank you for linking to me.

    * * *

    I usually don't realize that people are trolls until it is too late. Thanks anyway for the advise.

    10/05/2006 7:11 PM  
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    Blogger BadTux said...

    This comment has been removed by a blog administrator.

    10/06/2006 12:54 AM  
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    Blogger BadTux said...

    Please note that police officers aren't required to have all the facts before making an arrest. All they require is a reasonable suspicion that a crime is underway. Detirmining who is telling the truth -- the bank or the accused -- is not their job. It's the judge's job.

    What this mostly points out is just how bad our criminal "justice" system has become. It should not have taken $14,000 to clear this guy's name. The moment the DA declined to press charges, that should have been the end of it.

    As for Bank of America, I'm not so sure that they're as indemnified as they think. The Supreme Court decision in question does not protect people who make frivolous and unwarranted accusations of criminal conduct. I cannot simply pick up the phone, call the police, claim that my daughter was molested by George W. Bush during his last fundraising trip here, and have George W. Bush arrested on rape charges. I must have some reasonable basis for believing that a crime was committed before I make such an accusation. In short, I must make such an accusation in good faith (which has a specific legal meaning in this context), which implies at least some attempt to ascertain the facts of the matter prior to making an accusation of criminal conduct. I cannot make the accusation of criminal conduct simply because I don't like George W. Bush. I must have some reason to believe he actually committed the crime in question before I can legally make an accusation of criminal conduct. It's unclear whether Bank of America passes the "good faith" test here -- and in any event it is clear that they fail the ethics test big-time.

    Frankly, I believe that all of the interstate banks are criminal enterprises protected in much the way that the Mafia was protected in the 1950's -- i.e., via bribes to politicians. Except said bribes today are called "campaign contributions". Same difference. What is the difference between the Brooklyn Mafia slipping the local coppers a few quid to overlook their gambling operations, and Bank of America slipping politicians a few million dollars to head off enforcement actions that could cost them millions in fines and require them to refund hundreds of millions of unmerited fees to their customers? None. Zero. They're both criminal gangs. Just one wears better suits than the other, and buys the law at a higher level.

    I deal with my local credit union, which, like all credit unions, is owned by its members and answerable only to its members, not to shareholders who demand profits by any means possible regardless of how ethical or unethical. I believe anybody who supports a large multinational bank today is supporting an institution that is, at best, unethical, and at worst, a criminal organization cloaked in the flag.

    -BT

    10/06/2006 1:12 AM  
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    Blogger The Sovereign Editor said...

    This comment has been removed by a blog administrator.

    10/06/2006 2:19 AM  
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    Blogger The Sovereign Editor said...

    I believe anybody who supports a large multinational bank today is supporting an institution that is, at best, unethical, and at worst, a criminal organization cloaked in the flag.

    My sentiments exactly (also my sentiments on trading with China... but that's another story). We may disagree on the particulars, but I think we both want the same things. Feel free to come over and disagree with me as much as you like. It helps to have a different perspective, so long as it is constructive.

    You seem a little more trusting of the police than I am. I for one will be suspicious of all cops until they stop preying upon people who aren't, themselves, predators.

    10/06/2006 2:27 AM  
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    Blogger David Schantz said...

    Thanks for the heads up on Bank Of America, I don't have an account there and I won't be starting one. My Wife and I both used to have accounts at a local credit union. Hers was a business account, mine was a personal account. We both closed our accounts when they started charging her any time one of her customers wrote her a bad check. We moved our money to another bank but I don't really trust any of them.

    God Bless America, God Save The Republic.

    10/08/2006 5:39 AM  
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    Anonymous Julie Wurm said...

    This comment has been removed by a blog administrator.

    1/12/2007 7:53 PM  
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    Blogger The Sovereign Editor said...

    Well, if you aren't getting anywhere on the legal front, you should make as big a stink about it as you can on the publicity front (legally of course... that means you have to be very careful with the public statements you make; speak only the factual truth). Try calling Clark Howard; your story could well renew his interest in this and get you some national publicity. You should also contact David Lazarus at the San Francisco Chronicle. He did the Shinnick story and he may be interested in doing one on you; it doesn't hurt to ask.

    1/19/2007 6:30 PM  
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    Anonymous Anonymous said...

    Can you remove the comment attributed to me but made by someone else.

    Julie Wurm

    7/06/2007 1:30 PM  
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