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Supreme Court Appears Inclined To Apply The Eighth Amendment To Civil Asset Forfeiture

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The Supreme Court heard oral arguments recently in a case that may result in some involuntary reforms to state civil asset forfeiture laws. The case involves Tyson Timbs, an Indiana resident who had his $42,000 Land Rover seized by law enforcement after selling $260 worth of heroin to undercover cops.

Despite securing a conviction, law enforcement chose to forfeit Timbs' vehicle in civil court. This may have been to keep Timbs from challenging the seizure as excessive, given the crime he was charged with maxxed out at a $10,000 fine. This is how Timbs is challenging this forfeiture, however. That's how this case has ended up in the top court in the land.

A lower court in Indiana found in his favor, finding the seizure to be a violation of Timbs' Eighth Amendment protections against excessive fines. The state's top court overturned this ruling, prompting the appeal to the US Supreme Court. The state argues the Eighth Amendment's protections do not apply to civil asset forfeiture. This is a curious position, because it's basically stating Indiana's government gets to pick and choose what guaranteed rights its residents have access to.

From the oral arguments [PDF], it sounds like the court is going to rule in Timbs' favor and find that these Eighth Amendment protections apply to state-level forfeitures -- civil or criminal. The state's Solicitor General, Thomas Fisher, failed to impress the court at almost every turn.

It all starts with Justice Gorsuch trying to set the ground level for discussion: that it's undisputed fact the Eighth Amendment's excessive fines clause applies in Indiana.

JUSTICE GORSUCH: General, before we get to the in rem argument and its application to this case, can we just get one thing off the table? We all agree that the Excessive Fines Clause is incorporated against the states. Whether this particular fine qualifies because it's an in rem forfeiture, another question.

But can we at least get the -- the theoretical question off the table, whether you want to do it through the Due Process Clause and look at history and tradition, you know, gosh, excessive fines, guarantees against them go back to Magna Carta and 1225, the English Bill of Rights, the Virginia Declaration of Rights, pretty deep history, or whether one wants to look at privileges and immunities you might come to the same conclusion. Can we at least -- can we at least agree on that?

MR. FISHER: I have two responses to that. First -­

JUSTICE GORSUCH: Well, I -- I think -- I think a "yes" or "no" would probably be a good starting place.

As Fisher tried to argue around that by claiming it really should only apply to cases of criminal forfeiture ("in personam" [against a person] rather than "in rem" [against property] forfeitures), Gorsuch again shut him down, showing a bit of exasperation while doing so.

JUSTICE GORSUCH: Well, whatever the Excessive Fine Clause guarantees, we can argue, again, about its scope and in rem and in personam, but whatever it, in fact, is, it applies against the states, right?MR. FISHER: Well, again, that depends.JUSTICE GORSUCH: I mean, most -- most of the incorporation cases took place in like the 1940s.MR. FISHER: Right.JUSTICE GORSUCH: And here we are in 2018 -­

MR. FISHER: Right.JUSTICE GORSUCH: -- still litigating incorporation of the Bill of Rights. Really? Come on, General.

This was followed by new installation Brett Kavanaugh trying to get the state's lawyer to admit the state had adopted the Eighth Amendment and its clauses -- which includes protections against excessive fines, no matter what form they take.

The state's lawyer believes the Court should leave the state court ruling alone, and allow Indiana to go on claiming the Eighth Amendment doesn't apply to civil forfeiture. To do so, the state basically argues people have rights but their possessions don't. This led to Justice Ginsburg reminding the government's lawyer that property belongs to people who have rights.

So, whether you label it in rem or in personam, let's remember that it's -- things don't have rights or obligations in and of themselves. It's people that have rights or obligations with respect to things.

The state's insistence that the excessive fines clause does not apply to civil asset forfeiture allows Justice Breyer to strike at the heart of this form of forfeiture and the abuse it encourages because it's so often unchecked by local laws.

JUSTICE BREYER: Well, in your view, an in rem civil forfeiture is not an excessive fine, is that right?

MR. FISHER: Yes, that is -- that is true.

JUSTICE BREYER: So what is to happen if a state needing revenue says anyone who speeds has to forfeit the Bugatti, Mercedes, or a special Ferrari or even jalopy? (Laughter.)

MR. FISHER: There -- no, there is no -- there is no excessive fines issue there. I -- what I will say and what I think is important to -- to remember is that there is a constitutional limit, which is the proof of instrumentality, the need to prove nexus.

JUSTICE BREYER: That isn't a problem because it was the Bugatti in which he was speeding. (Laughter.)

MR. FISHER: Right.

JUSTICE BREYER: So -- so there is all the nexus.

MR. FISHER: Historically -­

JUSTICE BREYER: Now I just wonder, what -- what is it? What is it? Is that just permissible under the Constitution?

MR. FISHER: To forfeit the Bugatti for speeding?

JUSTICE BREYER: Yeah, and, by the way, it was only five miles an hour -­

MR. FISHER: Yeah.

JUSTICE BREYER: -- above the speed limit.

MR. FISHER: Well, you know, the answer is yes. And I would call your attention to the -­

JUSTICE BREYER: Is it yes?

MR. FISHER: Yes, it's forfeitable.

Not a single justice who spoke was on the state's side. If the ruling comes down in favor of Timbs, it still may be a narrow ruling, which will mute its impact. If all SCOTUS wants to do is say the Eighth Amendment excessive fines clause applies in Indiana, but not specifically to civil forfeitures, the state can continue with forfeiture business as usual. But if it applies that clause to civil forfeiture, the state is going to have a hard time justifying taking expensive stuff from people they've charged with minimal violations or haven't charged at all.

The biggest effect will be felt by those who've had their property seized by the government via this process. They'll actually have something far better than the minimal protections afforded them. As it stands now in many states, trying to reclaim property is an expensive, labyrinthine process that heavily favors the government. Being able to challenge a seizure on Constitutional grounds means the government has to prove far more than the property could imaginably be tied to criminal activity. It would also have to demonstrate the punishment doesn't outweigh the crime.

The potential downside is this: prosecutors may stack charges until they roughly equal the value of whatever's been seized. This could result in a lot of defendants having the book thrown at them while the state processes their property through civil proceedings.

Even with this downside, it's heartening to see the nation's highest court recognizes the perverse incentives of civil forfeiture and the damage it does to citizens and their inherent rights. Hopefully, this will make the court more receptive of future forfeiture cases where broader precedent may be set that will stem the flow of abuse resulting from this highly-questionable law enforcement practice.

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Stupid Patent Of The Month: A Patent On Using Mathematical Proofs

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In some fields, software bugs are more than the proverbial pain in the neck. When software has to ensure that an airplane lands safely, or that a pacemaker keeps operating, there's no room for error.The idea that mathematical proofs could be used to prove that software is error-free has been around since the 1970s, and is known as "formal verification." But like a lot of technologies that some visionaries saw coming, it took time to develop. In recent years, computing power has become cheap enough for formal verification to become practical for more software applications.Unfortunately, last month, the field had a monkey wrench thrown into it, in the form of U.S. Patent No. 10,109,010, which the patent office awarded to a U.K.-based company called Aesthetic Integration Ltd.Claim 1 of the patent describes creating mathematical "axioms"formal mathematical statementsthat describe a computerized trading forum. The patented method then describes analyzing, with a "computer assessment system the mathematical axioms that describe the operation of the trading forum." In other words, the patent describes using formal proofs to check for bugs in a "computerized trading forum." It's formal verificationjust applied to the financial services industry.Of course, Aesthetic Integration didn't invent formal verification, nor did the company invent the idea of software powering a "trading forum." The company has apparently created software that utilizes formal verification in the financial services space, and that software might be perfectly good. But the Patent Office has effectively allowed the company to patent a whole sector of formal verification.To be fair, the '010 patent appears to reflect some advanced and difficult programming by Aesthetic Integration. But that does not mean it should be patentable. Consider the following analogy: there are no 50 story buildings in Cincinnati. Building a 50 story building in Cincinnati, and making it compliant with seismic safety standards, would be hard work. It would take many engineers a great deal of effort to apply existing techniques to complete the project. You could write a lengthy paper describing that process, which might include lots of complex charts and diagrams. Still, that does not mean a company that completes such a project should then get a monopoly on tall buildings in Cincinnati.Aesthetic Integration claims to be the first to apply formal verification to trading software. If that's true, the company may get a well-earned competitive advantage by being the first to this market. But it should not get a 20 year monopoly simply for applying programming techniques that the company itself has described as part of a "mature and effective field of science."Ultimately, the '010 patent reflects a broader problem with Patent Office's failure to apply a meaningful obviousness standard to software patent applications. We have explained before that the Patent Office is all too willing to hand out patents for using known techniques in a particular field. Flow charts and whirligigs can make a concept look new when it isn'tespecially when a patent owner fills its application with obscure language and "patentese." The Federal Circuit has also encouraged this through its hyper-formalistic approach to obviousness. The end result is an arms race where people rush to patent routine software development.As we've said before, patents are simply a bad fit for software. The Patent Office should stop giving out patents on formal verification, or other well-known software processes.Republished from the EFF's Stupid Patent of the Month series.

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