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December 2018
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New York Court Tells CBP Agent He's Not Allowed To Pretend He's A Traffic Cop

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In a short decision, the Supreme Court of the State of New York reminds federal agents what they can and can't do while operating under the color of law. In this case (via The Newspaper) a CBP officer, who was supposed to be keeping an eye on the ultra-dangerous Canadians, decided he wanted to be a traffic cop instead.

Spotting a driver "engaging in dangerous maneuvers," the CBP agent (who is unnamed in the decision) decided to pursue the vehicle. He called the Buffalo (New York) Police Department to relay his observations. Deciding it would take too long for Buffalo PD officers to respond -- and supposedly concerned about the danger posed by the driver -- the CBP agent activated the lights on his vehicle and pulled the driver over.

The CBP agent did not approach the driver until a Buffalo police officer arrived -- not out of concern for the Constitution, but rather for his own personal safety. The CBP agent left after more police officers arrived. A gun was discovered during the stop and the driver was charged under New York law with illegal possession of a firearm.

The driver moved to suppress the evidence, arguing the stop itself was unlawful. The court found the CBP agent had the "powers of a peace officer," a fact that's relevant to its final determination. As such, the CBP agent can do certain things related to customs/border protection, but pulling drivers over for traffic violations isn't one of them. From the decision [PDF]:

In concluding that the agent unlawfully stopped the vehicle, the court determined that the agent had the powers of a peace officer, but that the traffic stop could not be justified on that basis because the agent was not acting pursuant to his special duties or within his geographical area of employment.

The state argued the CBP agent was not acting as a peace officer when he performed the stop. It claimed the agent was nothing more than a concerned citizen performing an ultra-rare "citizen's arrest." LOL, says the court. Even if the court had found that a CBP agent is not a peace officer, the agent's actions undercut any arguments construing this as a citizen's arrest.

Even assuming, arguendo, that the agent, as a marine interdiction agent with the U.S. Customs and Border Protection Air and Marine Operations and a deputized task force officer with the Niagara County Sheriff’s Office, is not a peace officer and does not possess the powers thereof [...] we conclude that the court properly determined that the agent did not effect a valid citizen’s arrest.

The agent, while contemporaneously reporting the incident to the police over the telephone and requesting the presence of a police unit, activated red and blue emergency lights in the grille of his truck and a light bar inside the windshield for the purpose of stopping the vehicle. A private person, however, is not authorized to display such emergency lights from his or her private vehicle (see Vehicle and Traffic Law § 375 [41]; People v Hesselink, 76 Misc 2d 418, 418-419 [Town of Brighton Just Ct 1973]). Moreover, a private person may not falsely express by words or actions that he or she is acting with approval or authority of a public agency or department with the intent to induce another to submit to such pretended official authority or to otherwise cause another to act in reliance upon that pretense (see Penal Law § 190.25 [3]; see generally People v LaFontaine, 235 AD2d 93, 106 [1st Dept 1997, Tom, J., dissenting], revd on other grounds 92 NY2d 470 [1998]).

Thus, the agent was not lawfully acting merely as a private person effectuating a citizen’s arrest when he activated emergency lights that were affixed to his truck by virtue of his position in law enforcement. Additionally, the agent was not acting merely as a private person when he approached the seized vehicle as backup in cooperation with the officer for safety purposes.

The state also tried to argue that even if the seizure was not lawful under New York law, it was not unconstitutional. The court says "you had us at 'illegal seizure.'"

Even if a violation of the citizen’s arrest statute is not necessarily a violation of a constitutional right, we conclude that adherence to the requirements of the statute implicates the constitutional right to be free from unreasonable searches and seizures…

And away goes the evidence and the conviction. The lesson is: if you're a federal agent charged with keeping an eye on the border, do that. If you feel the need to act like a concerned citizen, try to do it without turning on your emergency lights and pulling them over. Otherwise, all you've done is waste a bunch of people's time.

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posted at: 12:10am on 06-Dec-2018
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Some EU Nations Still Haven't Implemented The 2013 Marrakesh Treaty For The Blind

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The annals of copyright are littered with acts of extraordinary stupidity and selfishness on the part of the publishers, recording industry and film studios. But few can match the refusal by the publishing industry to make it easier for the blind to gain access to reading material that would otherwise be blocked by copyright laws. Indeed, the fact that it took so long for what came to be known as the Marrakesh Treaty to be adopted is a shameful testimony to the publishing industry's belief that copyright maximalism is more important than the rights of the visually impaired. As James Love, Director of Knowledge Ecology International (KEI), wrote in 2013, when the treaty was finally adopted:

It difficult to comprehend why this treaty generated so much opposition from publishers and patent holders, and why it took five years to achieve this result. As we celebrate and savor this moment, we should thank all of those who resisted the constant calls to lower expectations and accept an outcome far less important than what was achieved today.
Even once the treaty was agreed, the publishing industry continued to fight against making it easier for the visually impaired to enjoy better access to books. In 2016, Techdirt reported that the Association of American Publishers was still lobbying to water down the US ratification package. Fortunately, as an international treaty, the Marrakesh Treaty came into force around the world anyway, despite the US foot-dragging.Thanks to heavy lobbying by the region's publishers, the EU has been just as bad. It only formally ratified the Marrakesh Treaty in October of this year. As an article on the IPKat blog explains, the EU has the authority to sign and ratify treaties on behalf of the EU Member States, but it then requires the treaty to be implemented in national law:
In this case, the EU asked that national legislators reform their domestic copyright law by transposing the 2017/1564 Directive of 13 September 2017. The Directive requires that all necessary national measures be implemented by 12 October 2018. Not all member states complied by this deadline, whereby the EU Commission introduced infringement procedures against them for non-compliance. The list of the non-compliant countries is as follows:Belgium, Cyprus, Czech Republic, Germany, Estonia, Greece, Finland, France, Italy, Lithuania, Luxembourg, Latvia, Poland, Portugal, Romania, Slovenia, UK
The IPKat post points out that some of the countries listed there, such as the UK and France, have in fact introduced exceptions to copyright to enable the making of accessible copies to the visually impaired. It's still a bit of mystery why they are on the list:
At the moment, the Commission has not published details regarding the claimed non-compliance by the countries listed. We cannot assume that the non-compliance proceedings were launched because the countries failed to introduce the exceptions in full, because countries can also be sanctioned if the scope of the exception implemented is too broad, so much so that it is disproportionately harmful to the interest of rightsholders. So we will have to wait and see what part of the implementation was deemed not up to scratch by the Commission.
As that indicates, it's possible that some of the countries mentioned are being criticized for non-compliance because they were too generous to the visually impaired. If it turns out that industry lobbyists are behind this, it would be yet another astonishing demonstration of selfishness from publishers whose behavior in connection with the Marrakesh Treaty has been nothing short of disgusting.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

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