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Appeals Court Says Couple's Lawsuit Over Bogus Vehicle Forfeiture Can Continue

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Another attempted government theft has been thwarted by the courts. The Ninth Circuit Appeals Court has ruled in favor of a couple whose vehicle was carjacked by Arizona law enforcement officers while their son used it for an extended road trip.Here's AZ Central's summary of the events leading to the lawsuit the Ninth has revived:

Terry and Ria Platt had loaned their 2012 Volkswagen Jetta to their son in the spring of 2016 for him to use on a vacation. Their son was driving from the East Coast back to Washington on Interstate 40 when an Arizona Department of Public Safety trooper stopped him in Navajo County for having tinted windows.Members of the Navajo County Drug Task Force had a K-9 unit search his car and found a small amount of marijuana for personal use and over $31,000 in cash, according to court documents. Law enforcement seized the vehicle and money on suspicion they were being used or planned to be used for illegal purposes. But none of them were ever charged with a crime.
This is pretty much the standard origin story for forfeitures: cops stop car, find some reason to search it, and walk off with whatever cash they can find. In this case, they decided to take the car, too.But there are few additional wrinkles here, which show just how much the incentives of forfeiture have perverted the process. The Appeals Court decision [PDF] notes the car's owners tried to challenge the forfeiture using the processes made available by the state, but that was brushed aside by the entity directly profiting from the seizure.
After receiving [a forfeiture] notice, persons with an interest in property subject to forfeiture proceedings face a choice between two avenues for protecting their property rights. They may “file either a claim with the court . . . or a petition for remission or mitigation of forfeiture with the attorney for the state” within thirty days of the notice, “but may not file both.” If a property owner does not pursue either option, then the state’s attorney may proceed in court with “uncontested forfeiture.” In uncontested forfeiture proceedings, the state need only establish probable cause to believe that the property is subject to forfeiture; it need not prove the factual basis for forfeiture by clear and convincing evidence, as required for contested forfeiture proceedings.
The Platts chose the first option: filing a petition for remission or mitigation. This is supposed to be followed by the government conducting an investigation of the forfeiture (to obtain more proof that the seized property is tied to illegal activity) and issuing a written declaration, which then starts the clock (30 days) on the filing of a counterclaim by the property's owners.That didn't happen here. The county's "asset forfeiture attorney," Jason Moore, read the Platt's petition and basically said it never existed.
Here, the Platts allege, no written declaration of forfeiture issued. Instead, Moore unilaterally determined that the petition was defective. Without notifying the Platts of any defect or affording an opportunity to correct it, he proceeded as though the forfeiture were uncontested, representing to the Superior Court in his application for forfeiture that “no timely claim or Petition for Remission has been filed.”
It wasn't until the Platts responded to this obvious bullshit with a claim of property in an Arizona court that the forfeiture attorney finally said what was wrong with the petition he had ignored -- a statement prompted by this new threat to his "uncontested" forfeiture.
[The] Platts proposed to construe Moore’s purported application for forfeiture as the written declaration of forfeiture that should have been issued in response to their petition, which would have afforded them thirty days within which to file a claim against the property. Moore promptly moved to strike that claim, asserting for the first time that the Platts’ petition for remission or mitigation was defective because, although it had been signed, it did not state that it had been “signed under penalty of perjury.”
Sick of all of this (and now represented by the Institute of Justice [working pro bono]), the Platts sued the state, county, and the attorney. They sought a declaration the state's uncontested forfeiture program violates due process rights. They also alleged Jason Moore himself had violated their rights with his attempted forfeiture.Most of those claims did not survive the district court's review of the case. But the "forfeiture attorney" is still potentially on the hook for his actions, which included returning the vehicle to the Platts five months after it was impounded and, more damningly, two weeks after he was sued. So is the state, which will have to continue to defend its forfeiture program, which obviously can be very easily abused.The court says the program in Arizona has some serious problems. Specifically, it allows this exact chain of events to occur.
This obvious vulnerability in Arizona’s forfeiture regime to a procedural due process challenge cannot be mitigated by interpretative sleight-of-hand. Even if we were to interpret Arizona’s command that those who choose to file a petition “may not file” a claim until a declaration of forfeiture has issued as limited to those who file valid petitions, see A.R.S. § 13-4309(2), it would remain the case that a state’s attorney could unilaterally deem a petition invalid without alerting the petitioner.
The claim against the law is revived. So is the "biased adjudicator" claim against the government's attorney, since he was directly involved in attempting to short-circuit an already deficient process to gain ownership of the seized vehicle -- something his office would directly benefit from.
The district court’s assessment that Moore’s conduct did not delay the return of the Platts’ car likewise does not affect our standing analysis. The district court concluded that the Platts “filed their claim more than a month before the September 20, 2016 deadline that would have applied for Moore to mail a declaration of forfeiture, and before the deadline that would have applied for them to file a claim in response to a declaration of forfeiture.” First, the district court’s analysis ignores the potential that an unbiased adjudicator would have assessed the merits of the Platts’ petition and issued a declaration of remission, not a declaration of forfeiture, by September 20 (as Moore’s ultimate decision to return the car and abandon the forfeiture suggests is likely). Second, this analysis assumes that the Platts secured procedural due process upon the filing of their claim, not upon the return of their car. The filing of the claim could only provide due process if Moore’s motion to strike would have failed. As we have explained, that is at best unlikely, and cannot preclude the Platts’ standing to challenge the statute.We accordingly reverse the dismissal of the Platts’ (state law) biased adjudicator claims.
The lawsuit moves forward. Hopefully, it will result in a decision that forces the state to rewrite its forfeiture rules to, at the very least, respect due process rights. And there's always a chance a rewrite might address the perverse incentives that encourage the behavior seen here.

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posted at: 12:00am on 20-Oct-2021
path: /Policy | permalink | edit (requires password)

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MLB In Talks To Offer Streaming For All Teams' Home Games In-Market Even Without A Cable Subscription

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Streaming options for professional and major college sports has long been a fascination of mine. That is in part because I'm both a fairly big fan of major sports and a fan of streaming over the wire instead of having cable television. My family cut the cord a couple of years back and hasn't looked back since, almost entirely satisfied with our decision. The one area of concern here continues to be being able to stream our local sports teams, as most of the pro sports leagues still have stupid local blackout rules. MLB.TV, the league's fantastic streaming service, has these rules too. While using a DNS proxy is trivially easy, easier would be the league coming to terms with modernity and ending the blackout rules. Notably, MLB did this in 2015 when it came specifically to Fox Sports broadcasts for 15 teams, but as I noted at the time:

But don't think for a single moment that that's where it ends. Even if MLB can't get similar deals in place for the other half of teams in the league, which would fully free up the fantastic MLB.TV product for local streaming, any modicum of success that Fox has with this program will be immediately adopted by the other broadcasters. They really don't have a choice. Cord-cutting isn't going away and it's been professional and college sports that have long kept subscribers tethered.
It took longer than I expected, but it's finally happening. Reports indicate that MLB is currently planning to rollout an all-league streaming option that would end local blackout rules entirely, even for cord-cutters. And, in case you thought this was going to be an MLB-only thing, its bringing the other major leagues along for the ride.
The web-based service — which could address a decades-old annoyance for baseball fans that some have partly blamed for the league’s steadily declining viewership — could launch as early as the 2023 season, a person with direct knowledge of the negotiations said.The National Basketball Association and the National Hockey League are also considering partnering with MLB on the new streaming service, sources said. Insiders say subscription rates would vary by geographic market and could be between $10 and $20 a month — well below the monthly cost of most cable-TV packages, which can easily stretch past $100.
As you might imagine, the cable companies are not thrilled with this. After all, while cord-cutting has been a steady force in the American media landscape, the dam has yet to burst and that is almost certainly due to the appetite for live sports broadcasts that still sit behind complicated cable television deals these leagues have with broadcast partners. So how is this going to work?Well, MLB is doing what I suggested almost a decade ago: making the streaming broadcast identical to the television broadcast and giving broadcast partners some of the revenue, while also giving the broadcast commercial advertisements the additional reach of the stream.
Sources said MLB Commissioner Rob Manfred could end up offering cable-TV giants a piece of the streaming revenue to compensate for potential subscriber losses. Manfred’s pitch is that cable TV won’t lose many subscribers, as MLB is mainly targeting younger customers who have already cut the cord, sources said. The cable companies don’t have streaming rights but could retaliate by paying less to broadcast games if they don’t like the bargain, sources said.As for the teams, MLB’s streaming service would pay them based on viewership in their local markets. One MLB owner said the league has kept its owners appraised, and believes it has general support though no vote has been taken. Indeed, the MLB and team owners are concerned over dire forecasts for viewership. Roughly half of Americans will not be watching cable or satellite TV within a few years, according to Pew Research Center annual surveys.
There is no firm deal yet, as MLB is currently working with broadcast partners and its teams to finalize the plan. Sinclair Broadcasting is a major piece of gum in the works, because of course it is. Sinclair has the broadcast rights for nearly half the league's teams and is putting up a stink, though MLB's strategy appears to be repeatedly pointing out that Sinclair may be in such dire financial trouble such that it can't be trusted to continue operating far into the future.
At first, sources said Sinclair tried to persuade MLB to allow it to control the service for several years before handing the reins to MLB. But the league wasn’t having it, citing Sinclair’s financial condition and raising concerns that the company won’t be able to spend the money that’s needed for high-quality broadcasts, sources said.In 2019, Sinclair’s Diamond Sports subsidiary paid $9.6 billion for the Fox Regional Sports Networks, since rebranded to Bally’s, giving it exclusive rights to the 14 MLB teams, 16 NBA teams, and 12 NHL teams. It borrowed a staggering $8 billion to fund the deal, sources said. Since then, Dish, Hulu and YouTube TV have stopped carrying the Bally’s RSNs, even as revenue from existing distribution deals has been slammed by cord cutting and subscriber declines. An August Moody’s Investors Service report found that Sinclair “now has an unsustainable capital structure given its very high leverage and weak liquidity.”
Don't threaten me with a good time, Sinclair.Regardless, everything about these plans represents a massive step in the right direction. Sports leagues will be eyeing how this goes with great interest. When it goes well, as it almost certainly will, this could be the start of a massive change in how sporting events are consumed by the public.And the end of cable television as we know it.

Read more here

posted at: 12:00am on 20-Oct-2021
path: /Policy | permalink | edit (requires password)

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