Latest high-stakes offense: lost-dog posters in D.C.?

It’s unclear whether the District of Columbia’s $300 penalty for affixing signs in public places is per offending sign or per offending course of conduct, which means that when Roger Horowitz and friends put up thousands of fliers about his lost dog Ollie, he might have been flirting with a very substantial liability; according to Horowitz, the sum of $750,000 came up in a conversation with a police officer. [NBC Washington] For more examples of how cumulative statutory damages or fines for individually paltry offenses can multiply into seemingly disproportionate outcomes, see also junk-fax and TCPA class actions.

“Infamous ‘podcasting patent’ knocked out”

“A year-and-a-half after the Electronic Frontier Foundation created a crowd-funded challenge to a patent being used to threaten podcasters, the patent has been invalidated. …Personal Audio gave up on getting royalties from podcasters in 2014 after a lawsuit against comedian Adam Carolla almost went to trial.” [Joe Mullin, ArsTechnica, earlier on Carolla’s efforts]

Great moments in blame: prisoner cellphone access

Prison inmate orders attack on guard at guard’s home in Bishopville, South Carolina. Surviving guard Robert Johnson and wife “did not, however, sue the typical defendants – i.e., the shooter or any prison inmate or employee. Rather, the Johnsons sued several cellular phone service providers and owners of cell phone towers. According to the Johnsons, these defendants are liable for Mr. Johnson’s injuries because they were aware that their services facilitated the illegal use of cellphones by prison inmates and yet failed to take steps to curb that use.” [Fourth Circuit opinion in Johnson v. American Towers LLC, et al., affirming district court’s dismissal of claim on the merits]

“As a university employee, my personal experience with Title IX…”

“As a university employee, my personal experience with Title IX has been discouraging, frustrating, alienating. I have been recruited to join complaints against male colleagues, most recently against someone with whom I was friends outside of our workplace. I have, when I refused to be a complainant, been interviewed as a witness. I have, when interviewed as a witness, been grilled over a multitude of conversations and social interactions that took place away from campus, in the company of adults, that I never expected that I would one day have to explain in a formal setting. …

“Title IX doesn’t make me feel safer. It makes me feel paranoid. I can hardly imagine how much more paranoid it makes my male colleagues.” [Tamara Tabo, Above the Law]

Finally, reform of structuring forfeiture — and the farm story that helped

This is welcome news from the U.S. Department of Justice, and rather than try to rewrite I’ll just quote at length what my Cato colleague Adam Bates wrote:

[On March 31] Attorney General Eric Holder issued new guidelines to federal prosecutors tightening the rules for seizing assets for so-called “structuring” offenses.

Under the Bank Secrecy Act, structuring occurs when someone is suspected of arranging their financial transactions as to avoid triggering a report to the federal government by the financial institution. Some of civil asset forfeiture’s most egregious abuses are the result of federal prosecutors utilizing this nebulous statute to empty the bank accounts of unwitting citizens and small businesses who are never charged with any crime or even aware that their transactions are considered illegal.

The new rules require:

1. That structuring seizures against people for whom there is no criminal charge be based upon probable cause that the funds were either generated by unlawful activity or intended for use in anticipated unlawful activity. Alternatively, prosecutors must procure a warrant from a court and with the approval of either the U.S. Attorney (for Assistant U.S. Attorneys) or the Chief of the Asset Forfeiture and Money Laundering Section (AFMLS) (for Criminal Division trial attorneys).

2. That when the prosecutor determines subsequent to a structuring seizure that the government lacks the necessary evidence to succeed at either a civil or criminal trial, the seizing agency must return the full amount.

3. That when a prosecutor seizes property pursuant to suspicion of structuring, the prosecutor must file either a criminal indictment or a civil complaint, or receive an exception from either a U.S. Attorney or Chief of AFMLS within 150 days or else return the seized assets.

4. That all settlements must be complete and in writing. Informal settlements are expressly prohibited.

Here’s the Justice Department memo, and Kent Hoover at the Business Journal chain has more coverage.

I’ve been writing about the outrages of these structuring cases for years, especially the feds’ ambush of Randy and Karen Sowers’s successful Middletown, Md. dairy farm and ice cream maker, South Mountain Creamery. In yesterday’s Washington Post, Rachel Weiner tells how the Sowers’ story “gave civil forfeiture reformers a powerful symbol”, especially after the Institute for Justice got involved. I’m quoted:

“The South Mountain case happened to be one of these that captured the imagination,” said Walter Olson, a blogger for the libertarian Cato Institute who has written about the Sowers case. “Once you’ve bought ice cream for your kids from one of their little trucks, the name sticks in your memory.”

Free speech roundup

  • UK wrongful-speech laws sold to public “with mawkish appeals to the protection of the weak” but typically used by strong, rich and well connected [Charles C.W. Cooke on Galloway episode]
  • “Danish terrorist attack survivor: ‘It’s a fight that we can’t ignore'” [Lena Masri, Poynter]
  • “It gives me no comfort to have my constitutional rights trampled in a bipartisan fashion.” [Eric O’Keefe, quoted in M.D. Kittle, Wisconsin Watchdog profile of John Doe target Kelly Rindfleisch via @andrewmgrossman]
  • “I speak here of the rule of law, not the rule of feels.” [Ken at Popehat on BlockBot listings as non-defamation]
  • Rolling back SCOTUS’s First Amendment-based jurisprudence: “Hillary Clinton says she would support a constitutional amendment on campaign finance reform” [Washington Post]
  • “Court Rules San Diego’s Law Prof’s Blog Post Was Not Defamatory” [TaxProf]
  • “Another Day, Another Dumb New York Times Story on Corporations and Free Speech” [Damon Root, Reason, vs. Times columnist Timothy Egan]
  • Sounds promising: Robert Corn-Revere has a book in the works on free speech [Ronald K.L. Collins, Concurring Opinions]

Tax arguments you can count on to fail

For our folk-law category, a list of sure-loser arguments on behalf of tax non-compliance, including “Paying federal taxes is optional,” “Wages are not ‘income,'” “I got paid in paper money, which is not taxable,” and “You can only tax U.S. citizens, and I just seceded,” all of which are good for amusing tax professionals but not for keeping you out of jail. [Lowering the Bar]

Montgomery County authorities impound kids for walking on street, cont’d

I’ve now expanded Monday’s post into a longer Cato post. Among the new material, it links Petula Dvorak’s excellent WaPo column (“Our rapid march toward police-state parenting has got to end”) in which, to show how far we have moved, she quotes a checklist from a 1979 book on knowing whether your six-year-old is ready for first grade: “Can he travel alone in the neighborhood (four to eight blocks) to store, school, playground, or to a friend’s home?”

Megan McArdle notes “the kind of range of movement that those of us over 30 recall as a normal part of childhood” and names some possibilities of what social forces might have brought about such an extreme shift in attitudes, from cable news (magnifying the very-rare-in-fact peril of stranger abductions) to the lack of daytime “eyes on the street” to the ubiquity of mobile phones and report-possible-abuse lines (“It would be surprising if we lowered the price of being an officious busybody and didn’t get a lot more of it.”)

The Meitiv family has now issued a statement about the episode; they have a pro bono lawyer from Wiley Rein. The police account is here (“the victim children”). More from Lenore Skenazy:

Aren’t prisoners allowed one phone call, or is that just on TV? Because the Meitiv kids were not allowed to contact their parents in the six hours they were held by the authorities.

This is probably as good a place as any to share my personal experience: by around age 9 or 10 in the early 1960s I had the run of downtown Detroit and wandered around by myself to all sorts of attractions there, returning to my mother’s place of work at the end of the business day. That was considered a little precocious and my family was proud of me on that account. Once with some extra money in my pocket I even went into a white-tablecloth Italian restaurant by myself and ordered, ate, and paid for a meal with tip, a story told for years afterward.

P.S.: “This is kind of insane — in Illinois it’s illegal to leave a 13-year-old home alone” [Christopher Ingraham, but see comments below (not illegal in Illinois as such, only potentially so depending on a range of factors)]

Prosecution roundup

  • Florida court blocks drug-related seizure of house as violation of Constitution’s Excessive Fines Clause [Orlando Weekly, opinion in Agresta v. Maitland]
  • Deferred- and non-prosecution agreements (DPAs/NPAs) have ushered in a little-scrutinized “shadow regulatory state” [Jim Copland and Isaac Gorodetski, “Without Law or Limits: The Continued Growth of the Shadow Regulatory State,” Manhattan Institute report]
  • Politicized prosecution: New York Attorney General Eric Schneiderman throws book at bankers for not lending in Buffalo [Conrad Black via Tim Lynch, Cato]
  • Would it improve prosecutors’ incentives if localities rather than state governments paid for incarceration? [Leon Neyfakh, Slate, via David Henderson]
  • Andrew Pincus on the growing danger of enforcement slush funds [U.S. Chamber, more]
  • “The Department of Justice, if it succeeds on its new theory, may have criminalized many instances of dull employee misconduct.” [Matt Kaiser, Above the Law; Peter Henning, N.Y. Times “DealBook”]
  • A Brooklyn mess: new D.A. looking into 70 convictions obtained with evidence from retired detective Louis Scarcella [Radley Balko]