Tag Archive for 'Court'

Highway Robbery: How Police Abuse Civil Forfeiture Laws

The news is currently flooded with examples of police abusing their power. Here’s another: civil forfeiture (a.k.a. highway robbery by the police).

civil forfeiture police abuse of powerConsider this example: you’re moving to a new city with your car weighed down with boxes of clothes, books, etc. When a cop pulls you over for speeding, he questions you about all the possessions in your car. He doesn’t believe your story, so he confiscates everything.

This scenario may sound farfetched, but it happens to thousands of Americans every year.

Under the civil forfeiture process, police are allowed to take and keep your property or cash if they believe it’s connected to an illegal activity—even if you aren’t charged with a crime.

Civil forfeiture is most commonly used against motorists, but police have also used it to seize homes. Also known as asset forfeiture, this legal process was prominent during the Prohibition era in order to thwart the activities of bootleggers. It was used by the police in the 1980s in the war on drugs.

After 9/11, the departments of Homeland Security and Justice spent millions to train local and state police to be their eyes and ears on American highways. This meant being more aggressive when looking for suspicious people or drugs.

Unlike criminal procedure, where individuals must be convicted before their property is confiscated, civil forfeiture is a dispute between the police and the seized item in question; your guilt or innocence is irrelevant. To regain your seized property, you must prove that their property was not connected to the alleged illegal activity. Most people do not regain their property because the legal process is long and sometimes far more expensive than the seized items are worth.

The most commonly seized items are cash, vehicles, and personal property. Civil forfeiture cases are lodged against the seized property and not the owner of the property, so the case names seem ridiculous, such as:

  • United States v. Approximately 64,695 Pounds of Shark Fins
  • United States v. One Pearl Necklace
  • State of Texas v. $6,037

So, why is property so easy to seize? Unlike people, property has no legal right and most states do not have a presumption of innocence in property. Most police departments benefit from civil forfeiture because they get to keep the confiscated property that is not returned to the owner. What was once a legal practice meant to stop organized crime is now used to line the pockets of underfunded police departments.

Abuse of civil forfeiture laws has become rampant in recent years. In 2012, the value of seized assets was $4.3 billion compared to 2001’s $407 million.  Most of the money is shared with local police forces, so the incentive to use civil forfeiture is high when cities cut police department budgets. Some police departments have used seized money to purchase sports tickets, home security systems, a $90,000 sports car, and a margarita machine for office parties.

Civil forfeiture, if used properly, can have a positive effect and be a useful tool in the fight against organized crime. But so far it’s become synonymous with police abuse and corruption. When people read an article about civil forfeiture, they encounter stories about the police and federal agencies keeping $2.5 billion in seized property, or innocent people, like the Sourovelis, who have had their home seized without being charged or accused of a crime. By abusing civil forfeiture laws, the police fail to protect and have become twisted Robin Hoods that steal from the innocent and give to themselves.

Behind Texas Court’s Decision to Strike Down “Upskirt” Photography Ban

The recent Texas Court of Criminal Appeals ruling regarding “upskirt” photography – pictures taken covertly under women’s skirts in public and without their consent – has understandably drawn much outrage. The case has been widely described as ruling that it is legal to take these kinds of photos, which has generated a great deal of shock and anger.

texas court upskirt photo banThe court’s ruling did strike down a statute that would have outlawed this practice under the First Amendment’s Free Speech protection. However, a closer examination of the court’s decision and the statute in question demonstrates that this outcome was, more than anything, the result of extremely poor statutory drafting on the part of the legislature.

A law is unconstitutional under the First Amendment when it is overly broad. That is, even if the law aims to achieve a permissible purpose, if the language used encompasses substantially more conduct than intended, the law is unconstitutional.

The portion of Texas Penal Code Section 21.15 (the “improper photography or visual recording” statute) that was called into question was subsection (b)(1), which stated photographing or electronically recording a person is a crime if the photo or recording “is made without that person’s consent” and “made with the intent to arouse or gratify the sexual desire of any person.”

The State Attorney argued that the First Amendment did not apply because the statute did not target the “speech” (the photograph), but rather the “act” (the taking of the photograph). The State Attorney further argued that, even if the First Amendment did apply, the statute was limited by the consent requirement and, thus, not overly broad.

Under the State Attorney’s interpretation, if the photograph is of an area that is not exposed to the public, (such as a photograph taken up a woman’s skirt) the improper-photography statute criminalizes the behavior, if done with the requisite intent (to arouse or gratify sexual desire). However, if the photograph is of an area that was exposed to the public, (such as a photo of a woman wearing a swimsuit) the statute does not apply.

The State Attorney is bending over backwards to make this statute work, essentially asking the court to approve of an entirely different version of the statute than what is “on the books.” The argument that the act of photography (as opposed to the photo itself) is not a form of speech that invokes the First Amendment is nonsensical; and the State’s interpretation of the term “consent” is extremely broad.

The Defendant argued that, while the legislature has a legitimate interest in prohibiting “upskirt” photography, the statutory language used “fails to distinguish those situations from merely photographing a girl in a skirt walking down the street.” The court seemed to agree.

It is possible for a court to “save” an overly broad statute by utilizing a narrow interpretation. However, the Texas court felt that the “narrow interpretation” offered by the State Attorney – narrowing the statute, ironically, by using a broad definition of “consent” – was not possible in this case.

The court had previously construed “consent” as meaning “an actual or real agreement after thoughtful consideration,” and felt that the idea that a person consents to be photographed by merely appearing in a public place ran completely counter to this definition.

The court was concerned that imposing a definition of consent as broad as the one proposed by the State Attorney, when no such definition was provided in the statute, invaded the legislative domain and diminished the incentive for the legislature to draft narrowly tailored statutes in the first place. The court was also concerned that a very broad definition of “consent” might be a dangerous concept that, if utilized in this case, might be expanded to apply in other scenarios.

The court concluded by agreeing that a person being photographed in an area not exposed to the public, such as up a skirt, did violate the State’s legitimate interest in privacy, but pointed out that the statute in question was overly broad and did not even contain language addressing privacy concerns.

The court used the next subsection of the statute – Section 21.15(b)(2) – as an example of a provision narrowly tailored to address privacy interests: It is a crime to photograph or record a person in a bathroom or private dressing room. The court also offered some examples of ways that the legislature could have tailored the statute to make it less broad; such as requiring a person’s privacy interest to be invaded or prohibiting specific activities, such as “upskirt” photography.

These suggestions raise the question: Why did the legislature choose to focus on the sexual gratification of the perpetrator, rather than the privacy interest of the victim? What if the intent of the photography was not sexual gratification, but instead to mock or humiliate the victim? Should that victim be entitled to any less legal protection?

The court repeatedly refers to the statute as “protecting an individual from being the subject of someone else’s sexual desires,” stating that this is an unattainable goal. In fact, the statute was actually intended to protect individuals from dissemination of invasive photographs of their body parts by strangers. Clearly, the “sexual gratification” language in the statute confuses this purpose.

Thus, after a closer look, this case seems to illustrate the importance of a carefully drawn statute more than it does the ambivalence of the court towards privacy. It does not appear that the court is declaring “upskirt” photography legal or in any way condoning the behavior. The problem is that the legislature drafted a statute that was overly broad, while simultaneously failing to encompass situations in which personal privacy is invaded with non-sexual motives.

What is needed is a statute that encompass the entirety of the behavior the legislature is seeking to prevent, without also encompassing a wide variety of other behaviors.

Killer Beats: Can Rap Lyrics Be Used in Court?

You don’t need to be a fan of rap music to know that typical rap lyrics involve some element of storytelling. Depending on the social history of the rapper, the lyrics may seek to add rhyme and reason to otherwise illicit and violent surroundings that are not typical of mainstream America.

snoop dogg rap lyrics in courtWhile any artistic genre can claim to be focused on storytelling in a unique and personal way, only rap has the street cred as a genre to claim that some of the stories told have been used as evidence against their authors in criminal cases.

For example, both Mac Dre and Snoop Dogg have had their lyrics used as evidence against them in a court of law. In those cases, prosecutors sought to show motive or demonstrate that certain lyrics were an admission. Interestingly enough, no one put Johnny Cash on trial for shooting a man in Reno just to watch him die. So how—and why—is rap different?

There is a strong argument to be made that rap isn’t fundamentally different in this regard. In some cases, juries don’t buy the evidence as representing an actual crime, and ultimately acquit the accused rapper. After all, rap is an art form, and as such, may be entirely fictional and not an autobiographical confession.

However, in a few more recent cases, prosecutors have built their cases almost solely around the rapper’s songs. For rappers who are less famous, the results have carried more serious consequences, including sentences of life in prison.

For evidence to be admissible, it must be relevant. Even then, it is subject to certain limitations, because we have deemed certain things to be too prejudicial or less reliable than others. Frighteningly, a prosecutor may not have too much of a challenge in admitting rap lyrics as evidence.

In the case of violent rap lyrics, a prosecutor to a murder case can argue that these lyrics are relevant because they are violent. He can also argue that the lyrics demonstrate the knowledge, motive, and intent to commit a murder. Rap lyrics will typically avoid any hearsay objections as a party admission.

This leaves defense attorneys to articulate how admitting these lyrics will confuse the jury as to the actual issues or substantially prejudice the defendant in some way. Objections can also be made regarding fictional, artistic, and protected speech. Sometimes the judge may agree.

In recent years, there has been an alarming trend in how often rap lyrics are used in court. This trend is more alarming when one considers that any other number of creative forms have yet to make their debut in a court of law. Perhaps the take away from this trend is that if you are going to express violent stories, you’d better write a novel or a country song.

Uber Lawsuit May Determine the Future of Ridesharing Liability

Ridesharing Service Avoids Liability for a Girl’s Death

Uber is a startup company offering a mobile app that connects passengers and drivers. The company has received criticism for failing to provide insurance to its drivers when the drivers are not carrying passengers.

Uber AccidentThe criticism against Uber gained wide exposure when the driver Syad Muzaffar struck and killed a six-year-old girl named Sofia. Although her family filed a lawsuit, they will not receive compensation because Muzaffar was not covered by any insurance.

At the time Sofia was struck, Muzaffar was not driving a customer. Instead he was in between jobs, looking for a customer on his Uber app. From Uber’s Terms of Service agreement, Uber is basically denying liability for everything. Uber even stated that its insurance does not cover the driver when the driver does not have a customer in his car. Moreover, in California, the Public Utilities Commission does not require drivers to carry commercial insurance. As a result, there was an insurance gap and Sofia’s family will not be able to collect from any insurance company.

This potential insurance gap tragedy is posing many new concerns, and may be setting a new legal precedent.

Will Uber’s Terms of Service Be Valid in a Court of Law?

Uber is doing business and making a profit from many residents of California. Uber cannot possibly think it will be able to deny all liability in every situation possible. Their Terms of Service is unconscionable. It is not fair, and it harms the residents of California. Since California courts has an interest in protecting its residents, hopefully, California courts will not hold the Terms of Service agreement valid.

In states other than California, Uber drivers are typically required to carry commercial insurance. The only reason why it is not required in California is because the state does not require the drivers to do so. A potential solution may be to create a new state regulation and require all commercial drivers to carry their own commercial insurance.

What Does This Mean for Other Ridesharing Apps?

This is not a problem unique to Uber. Other ridesharing apps, such as Lyft, followed Uber’s footsteps and have similar terms of service agreements. Essentially, there are many other occurrences of insurance gap situations. Other ridesharing apps may have to change their terms of service agreements as well and buy additional insurance.

Court Overreacts to Child Pornography Case

Everyone is opposed to child pornography so there’s never much of a public outcry when a violator receives a harsh sentence. However, is there ever a case where a punishment is too severe or even unwarranted? Consider the recent case of the teenage girl named C.S.

child pornography caseThe child pornography in question is a sex video of two consenting teens, a 16-year-old girl and a 17-year-old boy. The boy kept the video on his phone for a year. During that year, the boy posted the video onto the Internet, which his former lover complained about to the police. Soon after, the boy sent the video to C.S., who then posted the video onto Facebook. C.S.’s attorney claims the only motive for posting the video onto Facebook was to harass the girl in the video.

In 2012, C.S. was prosecuted by Pennsylvania’s District Attorney on child pornography charges. Judge Robert Steinberg dismissed the case. Judge Steinberg agreed with C.S.’s attorney that child pornography laws were meant to protect children from sexual abuse, not to punish teens for their lack of foresight. The trial judge also believed that the law violated the Constitution by depriving “a teenager of ordinary intelligence ‘fair notice’ of what is prohibited.” The Pennsylvania Supreme Court reversed, holding that Judge Steinberg had overstepped his authority by using an argument not presented to him by one of the attorneys.

Why This Case Is Ridiculous on at Least Three Levels

First, it is not “child” pornography if the “children” engaging in sex in the video are 16 and 71 years old. Given that Pennsylvania’s age of consent is 17, the teens in the video were legal consenting adults.

The latter, if successful, would require that C.S. be placed on the sex offender registration, a punishment which would be disproportionate to the crime. I’m not suggesting that C.S. shouldn’t be punished or that the girl in the video deserved to have that video of herself posted online. However, C.S.’s attorney was correct in saying that the appropriate charge should be harassment, not child pornography.

Second, the DA’s decision to prosecute C.S., but not the 17-year-old boy who gave her the video, is sexist. The boy had the video in his phone for about a year. If the DA was serious about possession of child pornography, it should have launched an investigation against the boy as well. Accusing C.S. of distributing child pornography also seems like a double standard if the boy also posted the video online. Even if the DA did not intend to engage in gender discrimination, prosecuting one gender but not the other gender for the same crimes in the same case leaves a bad impression.

Of course, this entire situation could have been avoided if C.S. had refrained from posting a sex video on the Internet. Did she have a free speech right to post sex videos of other people online? To be clear, free speech does not protect people from posting child pornography online. However, pornography depicting adults is a gray area. The Supreme Court has long permitted laws which ban “obscenity.”

The problem is that courts have been unable to come up with a definition for “obscenity.” Simply outlawing depictions of nudity or sex is not possible because scientists and doctors need to discuss and distribute papers or videos about sex to treat certain conditions. Even worse, the porn industry has actually succeeded in outsmarting judges on a few occasions. When the Supreme Court ruled that videos were obscene because they lacked any social value, some pornography studios had the participants read medical or legal journals while they engaged in sex.

In this case, civil law might be a better solution than criminal law. The girl in the video can still sue C.S. for harassment. C.S. is also in violation of Facebook’s policy not to post sexual content. Breach of contract with Facebook is a minor offense compared to a criminal trial for child pornography, but restricting one girl’s ability to access Facebook is better than twisting child pornography law to punish someone who didn’t commit that specific crime.