The government wants secrecy just because and the Sixth Circuit Appeals Court isn’t having it. The government entity requesting extra secrecy with zero justification is the DEA. And it’s likely requesting it so other doctors it’s abused won’t come asking for similar settlements.
The specifics of the case trace back almost two decades. Two doctors — both working for the Henderson County Community Hospital in Tennessee — surrendered their prescription licenses to the DEA while working through their own chemical addictions. One doctor, Tom McDonald, surrendered his all the way back in 1999. The other doctor suing the DEA, John Woods, surrendered his to the DEA in 2012. Both were reinstated a few years later — McDonald’s in 2002 and Woods in 2014. Since that point, they’ve worked without incident at HCCH. (And prior to that, as well.)
Things changed in 2016 when the DEA showed up and ordered them to stop working until they’d obtained a waiver from the agency. This sudden enforcement effort was prompted by the addition of this clause to US code in 2014. In McDonald’s case, there was 12 years of uninterrupted good behavior before the rule changed. It was Woods’ more recent reinstatement that may have triggered this burst of regulatory activity. Whatever the case, it meant the two doctors were out of work until the DEA decided their years of service without abusing prescription pads meant something.
The doctors sued and, eventually, a settlement was agreed to. This is what the Sixth Circuit’s short, pointed order [PDF] discusses. The DEA wanted the settlement sealed. In support of this argument, it offered non sequiturs. The judges don’t like the DEA’s quasi-arguments and say as much:
McDonald and Woods attached a copy of this agreement to their motion to dismiss the petition for review. The government in turn moved to keep the agreement under seal. We apply “a strong presumption in favor of openness as to court records.” Shane Grp., Inc. v. Blue Cross Blue Shield of Mich., 825 F.3d 299, 305 (6th Cir. 2016) (internal quotation marks omitted). The party seeking to seal a record document therefore must “analyze in detail” why the information in that document should stay secret.
The government does not even attempt to do that here. Rather than identify information too sensitive to remain public, the government argues that the agreement does not need to remain so—specifically because it binds only the parties and no rule required the parties to file it. That argument gets exactly backwards our operative presumption, which is that “[t]he public has a strong interest in obtaining the information contained in the court record.”
A case like this — involving a settlement reached with the government after the DEA was hit with a restraining order against further enforcement — is definitely in the public interest. The medical field requires a lot of education and ongoing training. Wiping out someone’s livelihood because rules were changed years after the fact (at least in McDonald’s case) to require DEA paperwork never needed prior to 2014 is the wrong way to handle regulatory matters.
The DEA had years of work history and two voluntary relinquishments as evidence these doctors could be trusted to mete out medical care and prescriptions. But it ignored all of that to do some “letter of the law” busywork. As the court points out, the public interest for those in the medical field is immense. Burying the settlement is burying information crucial to working doctors in similar situations.
That interest is particularly strong where the information pertains to an agency’s interpretation of a regulation. Other doctors would no doubt be interested to know that the DEA does not plan to treat them like it treated McDonald and Woods.
So, some desk jockey at the agency cross-ref’d a couple of databases post-rule change and agents headed out to make medical care worse by depriving hospitals and clinics of medical staff with clean track records (minus some missteps where the medical professionals were responsible enough to take themselves out of the prescription loop until their own addictions were under control). That’s the Drug War being compounded by random enforcement, something that springs from a desire to look like you’re making a difference but without having to make any real effort. Of course other doctors want to know how the DEA is going to handle stuff that wasn’t a problem for decades, especially when they’ve made every effort to comply with massive amounts of regulation.
The DEA doesn’t want people to know how to fight back against bureaucratic busybodying. That’s the only reason it wanted the settlement buried. The problem was it couldn’t come up with a plausible reason to do so when forced to argue it in court.
The courts have allowed police officers to engage in pretextual traffic stops. Minor moving violations — including some that aren’t actually moving violations — have been used to engage in fishing expeditions for drugs, cash, or evidence of some other criminal activity. The Supreme Court dialed this back a bit with its Rodriguez decision, allowing pretextual stops but forcing them to end once the stop’s objective is complete. When an officer hands out a citation or warning, the person is free to go, no matter how much the officer may want to ask more questions or run a drug dog around the vehicle.
This hasn’t deterred fishing expeditions as much as one might hope. If a drug dog can be summoned while the officer slow-walks paperwork, it will probably be found Constitutional by the courts. And the hopes of netting bigger fish with stops for improper signal use or whatever will never completely die. The risk/reward factor still favors law enforcement, so pretextual stops will continue.
But, as the Sixth Circuit Appeals Court points out, even pretexts need to have some statutory basis. A recent decision [PDF] comes as close as the courts ever have to decrying law enforcement’s tendency to pull people over for “driving while black.” The lower court’s awful decision finding all of this Constitutional is reversed. [h/t Keith Lee]
Ohio State Trooper Hartford knew three things about Tyrone Warfield before stopping his car. He knew that Warfield, having recently exited a construction zone, was driving under the speed limit with both hands on the steering wheel. He knew that Warfield had touched the lane line twice. And he knew that Warfield was black. From there, Hartford cast off on a freewheeling investigation that began with a supposed marked lane violation, moved to suspicions of drunk driving, then to suspicions of trafficking untaxed cigarettes, and then on to drugs. The offense Warfield pleaded guilty to was even further adrift: the possession of gift cards re-encoded with stolen information. Because the initial stop was not supported by probable cause or reasonable suspicion, we reverse the district court’s denial of the motion to suppress and remand for further proceedings consistent with this opinion.
The government probably didn’t want to have to defend this one, but since the decision was appealed, it had to. The court goes into detail about the legal rationales offered by the State Troopers who had — at least momentarily — seen blatant Fourth Amendment violations transformed into criminal charges.
The court doesn’t hide its disdain for the creative license deployed by the testifying officer.
Just after midnight, Trooper Hartford saw a car driving at a speed that, by his visual estimation, was under the 70-mile-per-hour speed limit. The car had passed through a construction zone, requiring slower speeds, about a mile from where Hartford was stationed. As the car passed, Hartford observed that the driver—later determined to be Warfield—was sitting upright and rigidly in his seat, staring straight ahead, and had his hands on the steering wheel at ten and two. His suspicions aroused (apparently) by the textbook careful driving, Hartford followed the car. He caught up to Warfield and paced the car at around 50 to 53 miles per hour. Hartford testified that in the two minutes he was following Warfield, he saw the car “weaving a little bit” (which he incorrectly describes as “veer[ing]”) and that the car’s tires touched the solid lane line and the hash line dividing the lanes. These lane touches, along with Warfield’s slow driving, were the basis for the traffic stop. We need not just take Hartford’s word on what happened: the traffic stop was recorded on a dash cam video.
Warfield passed the field sobriety test with “flying colors,” according to the trooper. But that didn’t end the “investigation.” Eight cartons of cigarettes lying on the backseat turned this from a drunk driving arrest into a “selling untaxed cigarettes” investigation, even though it was perfectly plausible the vehicle’s passenger would have purchased cigarettes for personal use.
Warfield’s information was run through law enforcement databases, returning zero hits. Still, the trooper continued his ad hoc investigation, hoping to find something criminal to justify the unjustified stop. A drug dog was brought in — not because the trooper suspected drugs would be found in the vehicle — but because why not?
Even though drug dogs are not typically used during DUI investigations, Hartford thought that the cigarettes plus Warfield and Knox’s nervous body language and inconsistent answers to his questions were suspicious and indicated general criminal activity. This activity— “not necessarily drugs”—encouraged Hartford to “exhaust what options” he had “available to [him].” Suppression Hr’g Tr., R. 27 at PageID 165, 201. According to [Trooper] Stroud, this option, a drug dog walk-around, is exercised more frequently when the driver is a person of color. The dog was led around the car twice and did not indicate the presence of narcotics.
This failed search led to a more fruitful one. Warfield agreed to let the trooper search the trunk. More cigarette cartons were found — some from another state Warfield claimed he hadn’t driven through. This led to a search of the glove compartment, where the re-encoded gift cards were found. Even though consent was given for these searches, the court finds the trooper didn’t have enough probable cause to make the stop, much less question the driver until he consented to a search.
It doesn’t take much to establish probable cause for a stop, but this low bar wasn’t even approached by the trooper’s own testimony (and dash cam footage).
Merely touching a lane line is not a violation of Ohio’s marked lane statute. Trooper Hartford thus lacked probable cause when he stopped Warfield’s car for a marked lane violation when Warfield’s tires only touched the solid edge line and the hash line for the lane divider.
The attempt to escalate this into suspicion of drunk driving fares even worse, considering the driver did not engage in any actual moving violations.
The dash cam footage from the traffic stop shows, at most, that Warfield touched the lane lines on two occasions and slightly drifted within his lane. Because touching the lane line is not a violation of Ohio’s traffic code, it cannot be evidence of intoxication in the same way that driving exactly at the speed limit cannot.
[…]
Warfield’s driving was far from erratic—he was driving under the speed limit with his hands properly positioned on the steering wheel. Warfield’s only mistake was his failure to follow a perfectly straight line down the highway. Id. at 466. This is insufficient to suspect Warfield of driving under the influence. A different holding would subject many of us to regular invasions of our privacy.
The government tried to claim Warfield’s failure to meet the speed limit was somehow a moving violation and/or evidence of drunk driving. This argument fails as well.
But wait, says the government: Aren’t Warfield’s slow speed and rigid position other indicia of drunk driving? We think not.
Warfield’s speed was not illegal. Under Ohio Revised Code § 4511.22, it is a misdemeanor to travel “at such an unreasonably slow speed as to impede or block the normal and reasonable movement of traffic.” Hartford testified that Warfield was not impeding traffic by driving around 50 miles per hour, and the dash cam footage corroborates this fact. Nor was it unreasonable for Warfield to be driving at this speed. The law does not require a driver to travel at exactly the posted speed limit. It is a limit, not a mandate. Additionally, Warfield’s slow speed is easily attributable to driving through a construction zone, which Hartford knew about, less than a mile before the car was stopped.
Then the government posited that careful driving — the kind they teach you in drivers ed — is somehow indicative of illegal behavior.
Warfield’s “rigid position” with hands at ten and two is also insufficient to suggest that Warfield was driving drunk. We have held that such a position is “law-abiding behavior” and “cannot be the basis of . . . reasonable suspicion to stop a vehicle.”
The court then goes on to say it’s impossible to combine three incidences of law-abiding behavior and somehow come up with probable cause for a traffic stop. The only other factor — Warfield’s race — cannot be used to justify a stop either. Thanks to the trooper’s admission drug dogs are more often deployed when motorists are black, the court has some pointed words for the government.
While the law allows pretextual stops based on minor traffic violations, no traffic law prohibits driving while black. The protections of the Fourth Amendment are not so weak as to give officers the power to overpolice people of color under a broad definition of suspicious behavior.
It then goes on to chastise the government for its own inconsistent behavior.
Accepting the government’s arguments that Warfield’s driving was suspicious would drain the Fourth Amendment of any meaning. Here, the government argues that Warfield could be pulled over for, essentially, driving too cautiously. It finds fault in Warfield’s “rigid position,” yet in other cases the government justified a stop in part because the defendant was slouching. Gross, 550 F.3d at 580. It says that it may stop Warfield for driving below the speed limit, but the government has also argued that it can pull over a driver for driving a mere two miles per hour over the speed limit. United States v. Akram, 165 F.3d 452, 454 (6th Cir. 1999). And it says that Warfield’s nervous, shaking hands are indicators of supposed criminal activity, even though it has also cited overly deliberate, rehearsed conduct as suspicious behavior.
The lower court’s findings basically erase the Fourth Amendment. The Appeals Court firmly reinstates the right of motorists to travel without continual molestation by law enforcement officers hoping to get lucky.
A different result in this case would neglect our duty and would allow the police to stop you, demand your identification, check for outstanding warrants, and call for a drug dog—even if you are doing nothing wrong.
This is what law enforcement truly desires. But the rights granted to the public keep getting in the way. That’s why law enforcement supporters trot out lines like “nothing to hide, nothing to fear.” Citizens should be an open book to be read at the government’s convenience. Only criminals exercise their rights.
A rather strange ruling has been handed down by the Sixth Circuit Appeals Court. It’s a ruling that could have an adverse effect on anonymous speech, although it does mitigate the potential damage by booting it back to the lower court for a final determination. But that still might not stop an aggrieved multi-level management company from learning the identity of one of its critics.
Signature Management Team is the plaintiff/pyramid scheme. John Doe posted a link to a copy of one of SMT’s books on his “Amthrax” blog. SMT filed a DMCA takedown notice with the blog’s hosting service, Automattic. After being served with the notice, Doe removed the link to the copyrighted instruction book.
This quick concession didn’t stop SMT from suing Doe. It alleged one count of copyright infringement. Doe asserted a fair use defense and alleged copyright misuse, i.e., the use of copyright to silence a critic. He also asserted his right to speak anonymously and argued against being unmasked.
SMT moved to compel disclosure of Doe’s identity. The district court agreed with Doe, feeling Doe had a chance to prevail with his fair use argument. It did compel Doe to reveal his identity to the court and issued a protective order preventing SMT from learning his identity.
Unfortunately, Doe did not prevail in this legal battle. The court denied summary judgment to Doe, siding with SMT on its copyright infringement claim. The only thing the court ordered, however, was destruction of the infringing PDF by Doe. Doe complied. SMT, however, persisted in its arguments for unmasking. Again, the court refused to turn over Doe’s information to the plaintiff, pointing out Doe had complied with the DMCA notice and court order immediately. SMT appealed.
The Appeals Court weighs a lot of factors, but notes this is a question normally addressed before discovery, not after a judgment has already been rendered (mostly) in favor of the party seeking to unmask an anonymous defendant. From the ruling [PDF]:
With the explosion of anonymous Internet speech, courts have begun to develop balancing tests weighing the First Amendment right to anonymous speech against a plaintiff’s interest in unmasking an anonymous defendant. See id. at 1175–76 (compiling balancing tests). All of these cases, however, have dealt with anonymity rights during the discovery process. No case has considered the issue presented here—whether and under what circumstances a court can properly protect a party’s anonymity after judgment. This is an important distinction. The prejudgment cases often deal with a plaintiff’s need to unmask a defendant in order to effect service of process.
[…]
In contrast, the entry of judgment against a Doe defendant largely eliminates these concerns because the plaintiff will have established liability. On the other hand, where the anonymous defendant is determined to have fully complied with the relief granted, there is no practical need to unmask the defendant.
Setting itself up with opposed theories, the court spends the next several questions thinking out loud. Public litigation carries a presumption of open judicial records, which includes identifying information pertaining to both sides of lawsuit. In this case, however, not only is one side still anonymous, but even the plaintiff is unaware of the true identity of the person it’s suing. This stands in contrast to sealed cases where both parties are known to each other, but withheld from the general public. The fact that Doe lost a copyright infringement case weighs heavily against his continued anonymity.
[W]here a Doe defendant’s speech is found to be beyond the protection of the First Amendment, countering the presumption will require a showing that the Doe defendant participates in a significant amount of other, non-infringing anonymous speech that would be chilled if his identity were revealed.
This chilling effect could be argued using nothing more than Doe’s anti-MLM blog. Certainly, there’s plenty of evidence (both judicial and anecdotal) companies — especially questionable ones — like to silence critics. One good way of silencing persistent critics is eliminating their anonymity, making them more likely to be sued or otherwise harassed by the entities they criticize.
But the Appeals Court gets hung up on the copyright infringement, even though there’s little on the record here showing Doe was a repeat offender. He could have been more careful in his use of the copyrighted MLM manual, but his quick compliance with SMT’s demands and district court’s order shows he had no intention of thumbing his nose at copyright law.
Doe’s compliance seems to weigh against an order for unmasking on remand, even though Doe is definitely the loser in this legal battle. The Appeals Court tries to weave both of these disparate views into a single, mostly-cohesive text, but fails.
We do not agree either that the district court lacks discretion to allow Doe to remain anonymous or that Doe’s legitimate First Amendment right to speak anonymously is collateral to these proceedings. Although Doe’s infringing speech is not entitled to First Amendment protection, that speech occurred in the context of anonymous blogging activities that are entitled to such protection. An order unmasking Doe would therefore unmask him in connection with both protected and unprotected speech and might hinder his ability to engage in anonymous speech in the future.
Further, we do not agree that allowing Doe to remain anonymous would necessarily diminish the impact of the ordered injunctive relief. The dissent’s suggestion that a failure to unmask Doe would obligate the district court and Team’s attorneys to monitor Doe’s activity is inapposite because the district court declined to enter any ongoing injunctive relief. Since Doe has already complied with all aspects of the court’s order, there will be no need for monitoring regardless whether the district court ultimately decides to unmask Doe. Finally, to the extent that the concerns identified by the dissent cut in favor of unmasking Doe, the district court should consider those factors on remand.
The Appeals Court sounds like it might be inclined to let Doe keep his anonymity, but pulls back from that bright line and boots it back to the lower court. The good news, as far as Doe is concerned, is that the lower court already ruled in favor of his arguments against unmasking. Nothing in this ruling suggests the lower court should feel compelled to overturn its earlier decision.
SMT’s insistence the infringer/critic be unmasked smacks of pure vindictiveness. Doe has complied with all requests and orders, leaving very little for SMT to truly complain about, especially as the lower court did not issue an order requiring monitoring of Doe’s blogging for possible further violations. If SMT is given a win, it will do more than chill Doe’s speech. It will chill the speech of anyone criticizing SMT and its business practices. It certainly wouldn’t be a good precedent to set: allowing more powerful entities to unmask weaker ones if they can secure some form of judgment in a court. Hopefully, the lower court will come to the same conclusion the second time around.
The Sixth Circuit Court of Appeals has let some more stash house sting convictions stand. But not without considerable discussion of the government’s tactics. And not without one judge appending a long rebuke to her reluctant concurrence.
Once again, the ATF has managed to secure multiple convictions predicated on nonexistent evidence. The sting, helmed by veteran ATF agent Richard Zayas, involved a made-up drug stash house “containing” at least enough drugs to trigger 10-year mandatory minimum sentences for the defendants. Zayas’ sting operations always include fictitious armed stash house guards, otherwise the ATF’s involvement would be unnecessary.
The end result is multiple convictions. But other than a few seized weapons, nothing contributing to public safety was achieved. No actual drug dealer was targeted, nor was the sting linked with any larger ATF/DEA/FBI operation aimed at curbing inner city drug trade.
Nonetheless, the Sixth Circuit Appeals Court upholds everything, rejecting multiple due process challenges from the defendants. The entire opinion [PDF] should be read just to understand the nearly-insurmountable barriers defendants face when challenging questionable government behavior — both during the sting and during the trial.
Judge Jane Stranch’s concurrence clearly communicates her displeasure with ATF sting operations in general, even if it’s tempered by her inability to move the dial in the appellants’ favor.
Because these stings are wholly inventions of law enforcement agents, they can and do include powerful inducements to participate in one big “hit,” a hit that is conveniently large enough to qualify for mandatory minimum sentences. Obtaining the outsized reward is also made to look easy—the agent is a disgruntled insider who knows when and how to stage these “rip-and-runs” and offers to provide all needed assistance, from manpower to transportation. The unseemly nature of the Government’s activity is emphasized by its failure to achieve its declared goals of jailing dangerous criminals and making our streets safer. Evidence showing that these hurry-up set-ups achieve the stated goals was not proffered and the facts here demonstrate why: no known dangerous individuals or criminal enterprises were researched or targeted and no pre-existing drug rings or conspiracies were broken up. In fact, this sting trapped Flowers, a gainfully employed young man with no criminal record.
This sting was like others helmed by Agent Zaya: it targeted impoverished inner city minorities. As the judge notes, the fact that ATF stings are disproportionately resulting in the jailing of minorities has not gone unnoticed. It’s not just dissertations or investigations by journalists exposing this fact. The ATF is currently facing a lawsuit in Illinois over the selective targeting shown in sting operations.
Stranch goes on to note multiple courts have found the ATF’s actions troubling. But, so far, they’ve been unable to do much to stem the flow of stash house sting cases into the nation’s courts. They’ve also been unable — with rare, rare exceptions — to provide any sort of relief for defendants caught up in the government’s fictitious drug robbery plans.
Despite increasing awareness of the problems and inequities inherent in fictitious stash house stings, at issue here is whether an appropriate legal path exists for a defendant to successfully challenge the stings. A majority of circuits have recognized the outrageous government defense, but impose such a high burden on defendants that the defense rarely results in dismissal of charges.
[…]
[I]t seems we remain without an established vehicle in the law to define a dividing line between law enforcement practices that are honorable and those that are not. In the interim, these questionable schemes continue to use significant government resources and to adversely impact the poor, minorities, and those attempting to re-integrate into society. And they apparently do so with no increase in public safety and no deterrence of or adverse effect on real stash houses. These costly and concerning sting operations do not accord with the principles of our criminal justice system and I hope they will be discontinued.
The ATF continues to spend considerable amounts of money doing little to stop the flow of contraband. It would rather chalk up easy arrests and convictions while doing almost nothing to contribute to public safety. Taxpayers are already paying the ATF to engage in literal charades. They’re also on the hook for hundreds of thousands of dollars in incarceration costs per sting victim thanks to the ATF’s insistence on pretending there’s mandatory minimum-triggering amounts of nonexistent drugs in every fake stash house it convinces someone to rob.
This is nasty, brutish work by the government. But it works too well to expect the ATF to voluntarily end this program. It produces too many convictions to be considered a waste of time by the ATF, even as its does nothing at all to stop the trafficking of drugs and guns.
The government has lost its claim to money lifted from two men by the DEA at the Cleveland airport. Despite agents being super-sure the money was either drug profits or intended for drug purchases, no charges were brought. But the DEA decided to keep the money — $31,000 from one and $10,000 from the other — for itself.
The Sixth Circuit Court of Appeals says not so fast. The decision [PDF] lets the government know it’s jumping the gun on claiming sole ownership of this lifted cash. The opinion starts out with a brief description of how the cash-focused Drug Enforcement Agency starts each airport workday.
The parties dispute most of the facts underlying this action. We begin where they find common agreement, drawing these details from the pleadings. On February 24, 2016, Taiwan Wiggins and Dalante Allison (together, “claimants”) were each at the Cleveland Hopkins International Airport for a flight to Orange County, California. The Drug Enforcement Administration (DEA) was aware of the claimants’ itineraries and that each had previous felony drug convictions. The DEA observed them at the airport engaging in conversation before they walked together toward the security checkpoint.
As we’ve discussed before, the DEA takes great interest in certain travelers — even going so far as to ask TSA agents to be on the lookout for cash during bag inspections and X-ray screenings. Here, the DEA appeared to hit the jackpot (in more ways than one): traveler with previous convictions and tickets to California. As the multiple law enforcement officers have sworn in multiple court statements, the only reason anyone travels to California is to buy drugs. (Conversely, the only reason to leave California is to go sell the drugs they just purchased.)
The DEA took the cash from the two men, ran a dog past it, and announced the dog said the DEA could keep the money. The government then filed for forfeiture under the theory the money was drug-related. Both men submitted affidavits stating the money was theirs and was seized illegally.
The court took the affidavits and set a date for discovery to see if the men could stake a legal claim to the seized cash; i.e. prove it was legally obtained. The DEA decided to do things out of order. It moved to strike the men’s claims. The district court agreed, finding the men had made nothing but “naked assertions of ownership” — far below the evidentiary standard needed to reclaim the seized cash.
Open-and-shut… or so the DEA thought. The men appealed and the Appeals Court finds the lower court also skipped a step when arriving at its conclusion. As it states during its long discussion of forfeiture proceedings, the lower court shifted the burden of proof to the wrong party at this early stage.
Rule G(5) requires claimants to do no more than identify themselves and state their interest in the property subject to forfeiture. The government, on the contrary, wants claimants to provide additional detail, a position that it attempts to justify as a means to ward off false claims and to give it a starting point to draft its special interrogatories pursuant to Rule G(6). Nowhere in the text of Rule G do we see any support for this approach, and our case law demonstrates why it is not necessary. First, the would-be claimant must demonstrate Article III standing, which, at the pleading stage, necessarily requires that the claimant allege the facts necessary to satisfy Lujan’s “irreducible constitutional minimum of standing.” See Lujan, 504 U.S. at 560. Second, a claimant’s ability to proceed under Rule G, which we have called “statutory standing,” is satisfied through mere compliance with the rule, see Real Props. & Premises, 521 F. App’x at 384, and we see no persuasive reason to import a heightened pleading standard that has no basis in the text. And third, we have held that Rule G’s verification requirement is a built-in preventative measure that limits the danger of false claims. One Men’s Rolex Pearl Master Watch, 357 F. App’x at 627.
As the appeals court points out, the government wants too much too soon, and when it doesn’t get it, it wants to take the money and run. But so far, all the court has to work with are competing allegations about the legality of the cash, and the government doesn’t get to pretend its claim has more value.
Here, where the government alleged that it took a bundle of cash from a claimant’s suitcase, and each claimant stated that he owned the cash, there is a clear allegation of ownership that satisfies Article III. And the claimant’s making of such a statement is what satisfies Rule G’s statutory standing requirement. Therefore, at least at this stage in the litigation, there was no basis on which the district court could strike the claim.
There is no sympathy for the DEA in the Sixth Circuit:
The government sings a sirens’ song about the value of high pleading standards and the benefits it will receive from forcing claimants to support their claims from the outset of a forfeiture proceeding. But all of the government’s arguments rest on flawed assumptions about the procedural rules governing in rem forfeiture cases.
And if the government doesn’t like it, it’s welcome to take it up with… the government.
If Congress wishes to add an additional layer of protection to the statutory requirements by having claimants state their interest with specificity, it may. But a panel of our court is not the proper body to do so.
To close things out, the court points out in detail the wrongness of the government’s position. The government’s assertions suggest inverting what little there is of due process in forfeiture proceedings.
Finally, we note our concern that the government’s approach would turn the burden of proof in forfeiture actions on its head. Under the Civil Asset Forfeiture Reform Act of 2000 (CAFRA), the government bears the burden of proving by a preponderance of evidence that the subject of a civil forfeiture action is, in fact, forfeitable. Requiring a forfeiture claimant to explain the nature of his ownership at the pleading stage would be asking the claimant to satisfy the government’s burden of proof, or at least go a long way toward doing so.
Back the case goes to the lower court with all the correct steps — and a modicum of due process — revived. The government may still be able to retain possession of the seized cash, but it needs to provide at least some evidence it wasn’t legally obtained first.
The Sixth Circuit Appeals Court is the latest to weigh in on cell site location info. It joins every other circuit that has handled the issue in deciding the gathering of cellphone GPS data by law enforcement is not a search under the Fourth Amendment.
This decision [PDF] isn’t too surprising considering the court reached the same conclusion last year in a similar case. The difference between the two is the latest case deals with real-time collection of GPS data, rather than historical GPS records. But that’s the only difference. The Appeals Court believes the same holds true for real-time location info, although it cites something other than 1979’s Smith v. Maryland in its analysis.
[T]he district court held—and we affirm, holding that the government’s detection of Montai Riley’s whereabouts in this case, which included tracking Riley’s real-time GPS location data for approximately seven hours preceding his arrest, did not amount to a Fourth Amendment search under our precedent in United States v. Skinner, 690 F.3d 772, 781 (6th Cir. 2012). The government used Riley’s GPS location data to learn that Riley was hiding out at the Airport Inn in Memphis, Tennessee—but only after inquiring of the front-desk clerk did the government ascertain Riley’s specific room number in order to arrest him. The GPS tracking thus provided no greater insight into Riley’s whereabouts than what Riley exposed to public view as he traveled “along public thoroughfares,” id. at 774, to the hotel lobby. Therefore, under Skinner, Riley has no reasonable expectation of privacy against such tracking, and the district court properly denied Riley’s motion to suppress evidence found upon Riley’s arrest.
While tracking a robbery suspect, law enforcement obtained an order demanding AT&T hand over location data as soon as it was collected.
The court order compelled disclosure of call metadata such as inbound and outbound phone numbers and cell-site location (CSL) data, as well as real-time tracking or “pinging” of the latitude and longitude coordinates of Riley’s phone. Specifically, the order required AT&T to disclose the following, potentially for two months, until August 26, 2015:
16. Precision location of mobile device (GPS Location) such that service provider shall initiate a signal to determine the location of the subject’s mobile device on the service provider’s network or with such other reference points as may be reasonable [sic] available and a [sic] such intervals and times as directed by State Task Force Investigators and Deputy Marshals of the United States Marshal Service.
The court goes on to note that the location records submitted as evidence do not show whether this collection of info was triggered by AT&T or by the cellphone’s owner.
No evidence of record indicates whether Riley’s phone automatically transmitted its GPS coordinates to AT&T (and if so, whether on a continuous basis or otherwise) or whether AT&T affirmatively sent a signal to Riley’s phone to cause it to send AT&T its GPS coordinates.
This should have been a warning flag. It’s one thing to collect this info as it comes in. If AT&T is pinging the phone to generate GPS coordinates, AT&T is essentially performing a search on behalf of the government. That should make a difference in this case, as it shifts it from being about a collection of third-party records to an affirmative gathering of records by the government, using AT&T as a third-party stand-in to work around warrant requirements. (Not that case law is settled for GPS tracking, but still…)
But it doesn’t. The court goes on to say it doesn’t matter because the records were gathered by a third party and they all dealt with the movement of an individual in a public area (the motel where he was arrested). That’s why the court cites the Skinner decision, rather than relying exclusively on Smith v. Maryland.
In Skinner, we held that location data emitted by a “voluntarily procured” cell phone could not be subject to a reasonable expectation of privacy, even if the cell-phone user had no reason to expect that the government would compel the service provider to disclose those data. Id. at 779. There, because “the defendant’s movements could have been observed by any member of the public,” ibid., we held that it could not possibly be a Fourth Amendment violation for law-enforcement officers to monitor those movements by using cell-phone location data just because such electronic monitoring was more efficient than relying on visual surveillance alone.
But it then goes on to reach a conclusion which seems to contradict the evidence provided.
Using seven hours of GPS location data to determine an individual’s location (or a cell phone’s location), so long as the tracking does not reveal movements within the home (or hotel room), does not cross the sacred threshold of the home, and thus cannot amount to a Fourth Amendment search. After all, the tracking in Knotts revealed the location of the cabin to which the criminal suspects had traveled—but the tracking in Knotts was not a search because it revealed no information about the interior of the cabin itself. Likewise here, the tracking revealed only that Riley had traveled to the Airport Inn, not which room (if any) the phone was in at the time of the tracking.
The lack of location info particularity should have worked against the government’s argument. The court even admits in a footnote the government had no idea where exactly the suspect was located — only a general idea that he was likely in a publicly-accessible building.
When viewed on a map, the majority of these coordinates are scattered within the perimeter of the Airport Inn, but with insufficient precision—even if the Airport Inn were only one story tall—to reveal which room, if any, the phone was in at the time of each ping.
So, it could be argued the government did track the suspect’s “movements within… a hotel room,” which would put this back in Fourth Amendment territory. But the court never attempts to reconcile these contradictory statements and instead continues to use both the motel’s accessibility and the coarse location info as an argument against potential Fourth Amendment violations.
That Riley was arrested in a motel is of no moment, for the government learned no more about Riley’s whereabouts from tracking his cell-phone GPS data than what Riley exposed to public view by traveling to the motel lobby “along public thoroughfares,” Skinner, 690 F.3d at 774—even if Riley meant to keep his location a secret, one cannot expect privacy in one’s public movements.
Certainly the arrest was “no moment,” but the tracking that occurred once he was inside the building should have been given more consideration. The fact that law enforcement can obtain real-time location tracking information definitely needs to be examined more closely, especially when there’s ample evidence law enforcement has effectively backdated orders like these to cover up use of more intrusive technology like Stingray devices.
For years we’ve discussed how incumbent broadband providers protect their duopoly by writing and lobbying for awful protectionist state laws. These laws, passed in nineteen different states, either significantly hamstring or outright ban towns and cities looking to build their own networks, or strike public/private partnerships with companies like Google Fiber. In most instances, these towns and cities only jumped into the broadband business after being under-served for a decade — if they were able to get broadband in the first place.
While it was overshadowed by the net neutrality vote at the time, back in February the FCC voted 3-2 to try and take aim at the most restrictive parts of these laws. The FCC argued that it could use its authority under Section 706 of the Communications act — which requires the FCC to ensure “reasonable and timely” deployment of broadband access — to pre-empt these restrictions working in contrast to that goal. But North Carolina and Tennessee quickly sued, arguing that preventing them from letting AT&T and Comcast write awful state laws violated their state rights.
In a huge blow to the FCC, the US Court of Appeals for the Sixth Circuit (pdf) has ruled that the FCC’s pre-emption of these state restrictions must be reversed, because Section 706 doesn’t clearly provide the FCC with the proper authority. While the FCC may have been well intentioned, all three Judges noted that the law simply doesn’t give the FCC the authority to strip out chunks of state law:
“Section 706 does not contain a clear statement authorizing preemption of Tennessee?s and North Carolina?s statutes that govern the decisions of their municipal subdivisions. Section 706(a) instructs the FCC to utilize ?measures that promote competition in the local telecommunications market, or other regulating methods that remove barriers to infrastructure investment.? Subsection (b) is a similar but broader instruction?it directs the FCC to ?remov[e] barriers to infrastructure investment and . . . promot[e] competition in the telecommunications market.”
The ruling continues, reiterating that the Communications Act language is simply too murky to be applied by the FCC in this fashion:
“Remove barriers to infrastructure investment? is unclear regarding whether it applies to public and private infrastructure investment or only private infrastructure investment. ?Infrastructure,? by itself, is not specific to the public sphere. Furthermore, nowhere in the general charge to ?promote competition in the telecommunications market? is a directive to do so by preempting a state?s allocation of powers between itself and its subdivisions.”
While the FCC may have gotten too creative under the scope of the law, the end result of the ruling is unfortunate all the same.
For more than a generation, phone and cable companies like AT&T and Comcast have all but owned many state legislatures, who in turn make it their unrelenting mission to protect regional, geographical monopolies (duopolies, if you’re “lucky”) from any evolution or competition whatsoever. And while Tennessee and North Carolina were quick to breathlessly accuse the FCC of violating states rights, state leaders haven’t been concerned in the slightest that letting AT&T and Comcast write bad state laws consistently hurts consumers, businesses, and the state itself.
Tennessee remains a broadband backwater for just this reason, so this shouldn’t be a ruling anybody in the state (or in policy circles) is popping champagne corks over. It remains unclear what the FCC will do now, though in a statement FCC boss Tom Wheeler said he intends to continue fighting these restrictions, one way or another:
“In the past 18 months, over 50 communities have taken steps to build their own bridges across the digital divide. The efforts of communities wanting better broadband should not be thwarted by the political power of those who, by protecting their monopoly, have failed to deliver acceptable service at an acceptable price. The FCC?s mandate is to make sure that Americans have access to the best possible broadband. We will consider all our legal and policy options to remove barriers to broadband deployment wherever they exist so that all Americans can have access to 21st Century communications.
“Should states seek to repeal their anti-competitive broadband statutes, I will be happy to testify on behalf of better broadband and consumer choice. Should states seek to limit the right of people to act for better broadband, I will be happy to testify on behalf of consumer choice.”
The agency could appeal, could try its luck in a different jurisdiction and hope for better results, or it could wait on Congress to properly give it the authority it needs to fight broadband corruption and dysfunction of this type (chortle, guffaw). Unfortunately for consumers, Wheeler’s running out of time if, as tradition encourages, he’s going to step down with the election of a new President. While we wait, the onus once again rests squarely on the shoulders of voters to be informed, and to kick cash-compromised telecom sector sycophants out of office.
This week, in two different countries, we got two very good rulings concerning copyright on “sampling” of music into other songs. As you may know, the law on sampling, especially in the US, has been a bit of a mess. There was a great documentary on this a few years ago called Copyright Criminals that I highly recommend watching if you can find it. Here’s the trailer:
A big part of the problem was a horrible ruling in the 6th Circuit in one of the (many) Bridgeport cases (a company that is alleged to have forged records to get control over heavily sampled works, and then sued lots of artists over their samples). In Bridgeport v. Dimension Films, a confused 6th Circuit appeals court made a bunch of nutty comments in a ruling, including “Get a license or do not sample. We do not see this as stifling creativity in any significant way.” That case, which didn’t even look at the fair use issue, effectively wiped out another legal defense against accusations of copyright infringement, known as “de minimis use.” The court’s bizarre ruling contradicted plenty of others in basically saying there’s no such thing as de minimis use because each sampled note has value or it wouldn’t have been sampled. This tautological reasoning is directly in that awful ruling:
Why is there no de minimis taking…? … [E]ven when a small part of a sound recording is sampled, the part taken is something of value.(11) No further proof of that is necessary than the fact that the producer of the record or the artist on the record intentionally sampled because it would (1) save costs, or (2) add something to the new recording, or (3) both. For the sound recording copyright holder, it is not the ?song? but the sounds that are fixed in the medium of his choice. When those sounds are sampled they are taken directly from that fixed medium. It is a physical taking rather than an intellectual one.
And while this ruling has been troubling copyright and music sampling folks for ages, no one seemed willing to challenge it. But, a few years back, we wrote about VMG Salsoul suing Madonna over her hit song “Vogue,” claiming it used a sample from the VMG Salsoul song “Chicago Bus Stop.” You can listen to both tracks and I assure you that you will not see any similarities, because they’re totally different. In fact, VMG claimed that part of the reason it took 20 years to sue over this was because Madonna “hid” the sample — which (to us, at least) raised serious questions about how it could be copyright infringement at all. In our article, we noted the mess in the 6th Circuit and the fear of others testing that ruling, but the Madonna case went forward (in the 9th Circuit, rather than the 6th) and Madonna won, and has now won again on appeal, with the court flat out rejecting the Bridgeport ruling in the 6th Circuit, and saying that de minimis use exists in sampling:
We reject that interpretation of § 114(b). Bridgeport
ignored the statutory structure and § 114(b)?s express
limitation on the rights of a copyright holder. Bridgeport also
declined to consider legislative history on the ground that
?digital sampling wasn?t being done in 1971.? … But the state of technology is irrelevant to interpreting
Congress? intent as to statutory structure. Moreover, as
Nimmer points out, Bridgeport?s reasoning fails on its own
terms because contemporary technology plainly allowed the
copying of small portions of a protected sound recording….
Close examination of Bridgeport?s interpretive method
further exposes its illogic. In effect, Bridgeport inferred from
the fact that ?exclusive rights . . . do not extend to the making
or duplication of another sound recording that consists
entirely of an independent fixation of other sounds,?
… the conclusion that
exclusive rights do extend to the making of another sound
recording that does not consist entirely of an independent
fixation of other sounds. As pointed out by Nimmer,
Bridgeport?s interpretive method ?rests on a logical fallacy.? …
A statement that rights do not extend to a particular circumstance does not automatically mean that the
rights extend to all other circumstances. In logical terms, it
is a fallacy to infer the inverse of a conditional from the
conditional.
The ruling also rejects that weird “physical taking” line quoted above as a reason to ignore de minimis use as a defense against infringement:
We disagree for three reasons. First, the possibility of a
?physical taking? exists with respect to other kinds of artistic
works as well, such as photographs, as to which the usual de
minimis rule applies…. A
computer program can, for instance, ?sample? a piece of one
photograph and insert it into another photograph or work of
art. We are aware of no copyright case carving out an
exception to the de minimis requirement in that context, and
we can think of no principled reason to differentiate one kind
of ?physical taking? from another. Second, even accepting
the premise that sound recordings differ qualitatively from
other copyrighted works and therefore could warrant a
different infringement rule, that theoretical difference does
not mean that Congress actually adopted a different rule.
Third, the distinction between a ?physical taking? and an
?intellectual one,? premised in part on ?sav[ing] costs? by not
having to hire musicians, does not advance the Sixth Circuit?s
view. The Supreme Court has held unequivocally that the
Copyright Act protects only the expressive aspects of a
copyrighted work, and not the ?fruit of the [author?s] labor.?
… Indeed, the Supreme Court in Feist explained at
length why, though that result may seem unfair, protecting
only the expressive aspects of a copyrighted work is actually
a key part of the design of the copyright laws….
Accordingly, all that remains of
Bridgeport?s argument is that the second artist has taken
some expressive content from the original artist. But that is
always true, regardless of the nature of the work, and the de
minimis test nevertheless applies.
And thus, the 9th Circuit directly admits that it’s creating a circuit split, which makes it much more likely that the Supreme Court may take up the issue:
Because we conclude that Congress intended to maintain
the ?de minimis? exception for copyrights to sound
recordings, we take the unusual step of creating a circuit split
by disagreeing with the Sixth Circuit?s contrary holding in
Bridgeport. We do so only after careful reflection because,
as we noted in Seven Arts Filmed Entertainment Ltd. v.
Content Media Corp.,..
?the creation of a circuit split would be particularly
troublesome in the realm of copyright. Creating inconsistent
rules among the circuits would lead to different levels of
protection in different areas of the country, even if the same
alleged infringement is occurring nationwide.? … We
acknowledge that our decision has consequences. But the
goal of avoiding a circuit split cannot override our
independent duty to determine congressional intent.
Otherwise, we would have no choice but to blindly follow the
rule announced by whichever circuit court decided an issue
first, even if we were convinced, as we are here, that our
sister circuit erred.
It also notes, as we did, that no one would ever be able to tell that the Madonna song sampled Bus Stop:
After listening to the recordings, we conclude that a
reasonable jury could not conclude that an average audience
would recognize the appropriation of the composition.
Furthermore, the fact that the sample was modified helps Madonna’s case:
The horn hit itself was not copied precisely. According
to Plaintiff?s expert, the chord ?was modified by transposing
it upward, cleaning up the attack slightly in order to make it
punchier [by truncating the horn hit] and overlaying it with
other sounds and effects. One such effect mimicked the
reverse cymbal crash. . . . The reverb/delay ?tail? . . . was
prolonged and heightened.? Moreover, as with the
composition, the horn hits are not isolated sounds. Many
other instruments are playing at the same time in both Love
Break and Vogue.
The ruling even notes that VMG Salsoul’s own expert “misidentified” the source of the sampled note, showing that even their own expert couldn’t correctly understand what was sampled here (oops). And in the end, the court supports de minimis use:
We hold that the ?de minimis? exception applies to
actions alleging infringement of a copyright to sound
recordings.
Separately, the court did overturn the district court awarding attorneys’ fees in the case, saying that the lawsuit was not “objectively unreasonable” in light of Bridgeport, even if that case was disputed by many.
There is also a really confused dissent by Barry Silverman that goes along the “copyright is a property right and any infringement on that right is bad” line of thinking:
The plaintiff is the owner of a copyright in a fixed sound
recording. This is a valuable property right, the stock-intrade
of artists who make their living recording music and
selling records…. It is no
defense to theft that the thief made off with only a ?de
minimis? part of the victim?s property.
And then there’s this:
True, Get a license or do not sample doesn?t
carry the same divine force as Thou Shalt Not Steal, but it?s
the same basic idea. I would hold that the de minimis
exception does not apply to the sampling, copying, stealing,
pirating, misappropriation ? call it what you will ? of
copyrighted fixed sound recordings. Once the sound is fixed,
it is tangible property belonging to the copyright holder, and
no one else has the right to take even a little of it without
permission.
It’s kind of horrifying when an appeals court judge doesn’t know the difference between theft and infringement. Thankfully, he’s in the minority.
Either way, this circuit split increases the chances of the Supreme Court weighing in. That could be good in finally getting the 6th Circuit precedent destroyed. Or… it could be bad in that this particular Supreme Court seems to almost always get copyright cases wrong, meaning it could affirm the 6th Circuit interpretation and dump the 9th’s, once again doing serious harm to sampling as an art form.
Meanwhile, however, over in Germany, they’ve taken a much more enlightened view on all of this in a similar case involving Kraftwerk whining about a hip hop song sampling some of its music. The German Bundesverfassungsgericht (German federal constitutional court) has given a big okay to samples by noting that their artistic merit outweighs the copyright issue:
If the artist?s freedom of creative expression is measured against an interference with the right of phonogram producers that only slightly limits the possibilities of exploitation, the exploitation interests of the phonogram producer may have to cede in favour of artistic dialogue.
The ruling basically tries to balance the right to “artistic freedom” with copyright law, and basically argues that in cases where those doing sampling aren’t doing any real harm to the original copyright holder, the artistic freedom should win out. The court rejects the idea that using a short sample interferes with the copyrights of the original:
The presumption by the Federal Court of Justice that even the inclusion of very brief sound sequences constitutes an interference with the plaintiffs? right to protection as phonogram producers if the used sequence can be reproduced so as to sound like the original, does not take sufficient account of the right to artistic freedom. Where a musical artist who intends to use samples to create a new work does not want to refrain from including a sample in his new piece of music, the strict interpretation of free use by the Federal Court of Justice puts him in the position of having to decide whether to obtain a sample license from the phonogram producer or to reproduce the sample himself. In both cases, however, the freedom of artistic activity and hence also the further cultural development would be restricted.
Just because you can license some samples doesn’t fix the situation:
Emphasising the possibility to obtain a license does not provide an equivalent degree of protection of the freedom of artistic activity: A right to be granted a license to use the sample does not exist; due to his right of disposal, the phonogram producer may deny a licensing without having to give reasons and irrespective of the readiness to pay for the use of the sample. The phonogram producer is entitled to demand the payment of a license fee for the use of the sample, the amount of which he is free to determine. The process of granting rights is extremely difficult in case of works which assemble many different samples in a collage-like manner. These problems are only solved insufficiently by existing sample databases and service agencies that assist musical artists in the process of sample clearing.
In other words, the German approach here is a big, big deal, recognizing that sampling is a form of artistic expression, and requiring licenses for it stifles creativity and musical expression. This is a much bigger deal than the US situation, where we’re still arguing over de minimis use (and not even fair use!). Meanwhile, over in Germany they’re directly looking to enable more artistic freedom.
