e dot dot dot
a mostly about the Internet blog by

September 2017
Sun Mon Tue Wed Thu Fri Sat
         


Federal Judge Says Indiana's Vehicle Forfeiture Laws Are Unconstitutional

Furnished content.


More good news on the forfeiture front: Nick Sibilla of forfeiture watchdogs Institute for Justice reports a federal judge has declared one of Indiana's civil asset forfeiture laws unconstitutional.

In a major win for private property rights, a federal judge ruled that Indiana can no longer seize vehicles under its controversial civil forfeiture laws, which allow police to confiscate property without filing criminal charges. Judge Jane Magnus-Stinson ruled that Indiana's laws were unconstitutional because they failed to provide a timely hearing for the property owner to contest the seizure.
The case springs from an arrest and seizure made last September when the plaintiff was pulled over by Indianapolis law enforcement. Finding a small amount of marijuana on the driver, the Indy PD felt justified in claiming his entire vehicle as its own. Not content to be screwed out of a car for his personal use stash, Leroy Washington enlisted the help of defense lawyer Jeff Cardella. They filed a class action lawsuit challenging the state's forfeiture law on behalf of the hundreds of drivers whose cars have ended up in the possession of Indiana law enforcement -- all without being convicted of any criminal activity.Seizing cars is something Indiana law enforcement does frequently. According to the stats quoted by the judge, the state seizes around 11 cars a week. Once the vehicles are in the law enforcement's possession, drivers are forbidden from seeking to regain their property until the state says it's OK to do so. And it's generally in no hurry to do so. It can hold the vehicle for six months before starting forfeiture proceedings, forcing car owners to find other transportation while their vehicles sit in impound lots.As the judge notes in the decision [PDF], this law -- which locks car owners out of the loop for months -- poses significant problems for people who haven't been convicted of criminal activity.
Following a seizure, the government may hold a vehicle without taking any action for 180 days, or for 90 days after receiving written notice from the owner demanding the vehicle's return. Ind. Code § 34-24-1-3. During this timeframe, the owner of the property has no ability to challenge the seizure, because replevin is prohibited by the statute. Ind. Code § 34- 24-1-2(c) (“Property that is seized under subsection (a) … is not subject to replevin but is considered to be in the custody of the law enforcement agency making the seizure.”).Therefore, three to six months may elapse, during which time the owner is deprived of the use of his vehicle, and the government is not required to take any action whatsoever regarding the seized property. It is particularly problematic that the statute specifically bars replevin. Absent another statutorily created mechanism to challenge the deprivation, replevin would provide a vehicle owner’s only recourse. But that avenue has been specifically foreclosed by the statute. During those months, if the owner has secured financing to purchase the vehicle, he is still required to make payments on that loan, lest he risk foreclosure and repossession. He is also required, of course, to make other arrangements for his transportation needs, which may include fundamental life activities such as transit to a job or school, visits to health care professionals, and caretaking for children or other family members. It is evident to this Court that a three- to six-month deprivation is a lengthy one, and could cause significant hardship to the individual whose vehicle is seized.[...]Second, unlike some states’ statutes, Indiana’s forfeiture provisions do not allow for interim relief during the pendency of proceedings. Such interim relief could include returning the seized vehicle subject to the posting of a surety bond or other adequate security. [...] The absence of an opportunity for interim relief particularly burdens individuals who lack the financial resources to secure another vehicle during the pendency of proceedings, or who are unable to access reliable public transportation.
As the court concludes, this process -- enabled by state law -- makes a mockery of Constitutional rights.
[I]ndiana Code Section 34-24-1-1(a)(1), as read in conjunction with the statutory provisions of the same chapter, violates the Due Process Clause of the Fifth and Fourteenth Amendments. The Court therefore permanently enjoins Defendants from enforcing that statutory provision.
This is exactly the conclusion Indiana's law enforcement didn't want the court to reach. In hopes of heading off the lawsuit (and this precedent), the state argued the return of Washington's vehicle rendered the case moot. The court doesn't care for this dodge, and points out it's exactly the sort of move anticipated both by Washington's earlier briefs and the court itself:
The Court concludes (as it did in its order denying Defendants’ Motion to Dismiss) that Washington has established that the inherently transitory doctrine applies here. First, it is uncertain that a claim will remain live for any individual who could be named as a plaintiff long enough for a court to certify the class. The statute itself limits the pre-forfeiture period to 180 days. As the procedural history of this case illustrates, despite a district court’s best efforts to provide prompt resolution to all pending matters, the realities of a district court’s docket and case load (along with the possibility that the parties may need additional time to conduct discovery related to class certification) may result in motions to certify being unresolved for longer than 180 days. In this case, Washington’s Motion to Certify a Class was filed on November 2, 2016—more than 180 days before the issuance of an order resolving it. [Filing No. 3.] And, as the State retains discretion to return the seized property to its owner at any time, it could attempt to moot any named plaintiff’s claim by simply returning the property after the plaintiff files a motion to certify.
It further points out mooting Washington wouldn't moot the class action, which includes everyone similarly situated -- both now and in the future.
Second, there will be a constant class of persons suffering the deprivation complained of in the Complaint. Defendants have not indicated any intention to cease enforcement of the statute, and Defendants do not dispute that at least 169 vehicles have been seized for forfeiture between November 2, 2016 and February 13, 2017.
The end result is a federal injunction preventing Indiana law enforcement from seizing vehicles without better recovery routes available for car owners. Since the adjoining clause walking all over the Constitution hasn't been rewritten yet, this pretty much means the end of vehicle seizures until that's addressed by the legislature. Considering state lawmakers were already considering forfeiture reforms, this might mark the permanent end of taking cars away from people without obtaining corresponding convictions.

Permalink | Comments | Email This Story


Read more here

posted at: 12:00am on 28-Sep-2017
path: /Policy | permalink | edit (requires password)

0 comments, click here to add the first



Lawyers Gearing Up To Hit UK With Corporate Sovereignty Claims Totalling Billions Of Dollars Over Brexit

Furnished content.


We're not hearing much about corporate sovereignty -- also known as "investment state dispute settlement" (ISDS) -- these days. It's definitely still a problem, especially for smaller countries. But the big fights over the inclusion of corporate sovereignty chapters in the two global trade deals -- the Transatlantic Trade and Investment Partnership (TTIP), and the Trans-Pacific Partnership (TPP) agreement -- have been put on hold for the moment. That's for the simple reason that both TPP and TTIP are in a kind of limbo following the election of Donald Trump as US President with his anti-free trade platform.TTIP seems completely moribund, whereas TPP -- re-branded as TPP11 to reflect the fact that there are only 11 countries now that the US has pulled out -- is showing the odd twitch of life. A recent article in the Canadian newspaper National Post points out that the departure of the US might even allow some of the worst bits of TPP to be jettisoned:

the Americans insisted on longer intellectual property patent terms and stronger copyright regulations than many countries wanted. Canada will now argue for shorter patent terms, in support of its generic drug sector and in an attempt to keep drug costs down.Canada is also keen to water down the investor-state dispute settlement negotiated by the U.S. in the original deal, and bolster the state's right to regulate in the public interest.
The move by Canada to rein in some of the worst excesses of corporate sovereignty follows the EU's lead in this area. As Techdirt reported, during the TTIP negotiations between the EU and US, the former suggested replacing the old ISDS with a "new" Investment Court System (ICS). Although the US was not interested, Canada later agreed to this slightly watered-down version for the CETA trade deal with the EU.The ICS still doesn't exist, and is still something of a mystery in terms of how it will work. It was proposed in an attempt to head off massive public concern about corporations being able to sue governments -- and thus taxpayers -- for huge sums, completely outside the normal legal system, and subject to few constraints. But even ICS was not enough to stop the Belgian region of Wallonia nearly de-railing the CETA deal at the last moment.Anxious to avoid that happening again, the President of the European Commission, Jean-Claude Juncker, had a rather radical suggestion in his recent State of the Union address. In order to make future trade deals easier to push through the legislative process in the EU, Juncker proposed removing investment protection chapters from them completely, and negotiating a separate deal covering this aspect. An article on Politico.eu explains the thinking behind that move:
Slicing out investment protection will give [Juncker] an immediate legal advantage. Under EU law, a trade deal without investment clauses could be ratified exclusively by the European Parliament and by the member countries as represented at the Council in Brussels. That effectively removes the direct veto powers of the Walloons.
Simon Lester, Trade Policy Analyst at the Cato Institute, thinks the US should follow suit -- an idea that someone from the same group suggested a few years ago:
The Europeans have faced a greater struggle with investment protection and ISDS than has been the case in the United States, but these provisions have been a problem here as well. If we want to make it easier to get trade negotiations completed and trade agreements passed by Congress, we should consider following the EU's lead.
Although removing corporate sovereignty from trade deals does not solve the larger problem of giving companies special protection, it is a step in the right direction. For example, after concluding trade deals that do not have ISDS chapters, governments may decide to bring them in as quickly as possible in order to enjoy their claimed benefits. When commercial relations work perfectly well without them -- as is already the case for both the US-Australia trade deal, and the one between the EU and South Korea, neither of which include corporate sovereignty -- governments may decide to leave it at that, and forget about further negotiations covering investment.Unfortunately, none of these recent moves is likely to help the UK, currently struggling with the implications of last year's "Brexit" referendum to leave the EU. Ever-inventive lawyers have realized that an unexpected withdrawal of the country from the EU could represent an excellent opportunity for companies that have invested in the UK to claim that they will suffer as a result, and to use corporate sovereignty clauses to claim compensation potentially amounting to billions of dollars. Corporate Europe Observatory has a new post exploring what could happen here:
the UK's impending exit from the European Union may bring new investment arbitration opportunities. The country has 92 investment agreements in force, which investors from other countries could use to file ISDS claims against the UK. In conferences and alerts for their multinational clients, some of the top investment arbitration law firms are already assessing the prospect of such Brexit claims. Depending on how the Brexit negotiations turn out, these lawsuits could be about anything from foreign carmakers or financial companies losing free access to the EU market, to the government scrapping subsidies for certain sectors. One lawyer from UK-based law firm Volterra Fietta has even suggested that "there may be a number of investors that would have come to the UK expecting to have a certain low wage group of employees", which might sue for loss of expected profit if they lose access to underpaid, foreign workers.
But the clever lawyers don't stop there. They see opportunities for corporations to use Brexit as a way to sue other EU countries too:
Several law firms have published briefings suggesting that it would be an advantage for corporations if they structured their foreign investment into the remaining EU member states through the UK. This means that if you are a German company, for instance, and have an investment in Romania you could let this investment 'flow' through a subsidiary -- possibly only a mailbox company -- in the UK. You could then sue Romania via its bilateral investment treaty with the UK -- even if no such treaty was in place between Romania and Germany.
This kind of "creativity" is yet another reason why tweaks to corporate sovereignty of the kind contemplated by the EU and Canada are simply not enough: ISDS needs to be dropped completely from all trade deals -- past, present and future.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Permalink | Comments | Email This Story


Read more here

posted at: 12:00am on 28-Sep-2017
path: /Policy | permalink | edit (requires password)

0 comments, click here to add the first



September 2017
Sun Mon Tue Wed Thu Fri Sat
         







RSS (site)  RSS (path)

ATOM (site)  ATOM (path)

Categories
 - blog home

 - Announcements  (0)
 - Annoyances  (0)
 - Career_Advice  (0)
 - Domains  (0)
 - Downloads  (3)
 - Ecommerce  (0)
 - Fitness  (0)
 - Home_and_Garden  (0)
     - Cooking  (0)
     - Tools  (0)
 - Humor  (0)
 - Notices  (0)
 - Observations  (1)
 - Oddities  (2)
 - Online_Marketing  (0)
     - Affiliates  (1)
     - Merchants  (1)
 - Policy  (3743)
 - Programming  (0)
     - Bookmarklets  (1)
     - Browsers  (1)
     - DHTML  (0)
     - Javascript  (3)
     - PHP  (0)
     - PayPal  (1)
     - Perl  (37)
          - blosxom  (0)
     - Unidata_Universe  (22)
 - Random_Advice  (1)
 - Reading  (0)
     - Books  (0)
     - Ebooks  (0)
     - Magazines  (0)
     - Online_Articles  (5)
 - Resume_or_CV  (1)
 - Reviews  (2)
 - Rhode_Island_USA  (0)
     - Providence  (1)
 - Shop  (0)
 - Sports  (0)
     - Football  (0)
          - Cowboys  (0)
          - Patriots  (0)
     - Futbol  (0)
          - The_Rest  (0)
          - USA  (0)
 - Technology  (1049)
 - Windows  (1)
 - Woodworking  (0)


Archives
 -2024  March  (164)
 -2024  February  (168)
 -2024  January  (146)
 -2023  December  (140)
 -2023  November  (174)
 -2023  October  (156)
 -2023  September  (161)
 -2023  August  (49)
 -2023  July  (40)
 -2023  June  (44)
 -2023  May  (45)
 -2023  April  (45)
 -2023  March  (53)
 -2023  February  (40)


My Sites

 - Millennium3Publishing.com

 - SponsorWorks.net

 - ListBug.com

 - TextEx.net

 - FindAdsHere.com

 - VisitLater.com