puppy mill, Las Vegas, pet stores

Is the Las Vegas Puppy Mill Ordinance Constitutional?

The greatness of a nation and its moral progress can be judged by the way its animals are treated.

Mahatma Gandhi

 

On 30 November, the City of Las Vegas held a meeting to get public comment regarding the proposed city ordinance that would ban pet stores from selling dogs that were purchased from a so-called “puppy mill.”

Elizabeth Gadley of KTNV was nice enough to post a few photos from the public meeting. Folks look as cheerful about the subject as you would expect1)Hard for me to think of a public meeting topic that would have most of the attendees smiling; these are our times, unfortunately.:

 

 

You can read a media account of the meeting here.

The city only took public comment at the meeting and did not pass any regulations, making this the best time to evaluate the law (as in, before it will go into effect). Before we can discuss the constitutionality of the proposed ordinance, however, it is best to take a step back and look at what a puppy mill is.

 

What is a Puppy Mill?

 

In short, very distasteful. In essence, they are factory farms for producing puppies at the best profit margins. Imagine you were going to attempt to breed dogs for the most amount of money possible, how would you do it?

  1. Keep the female dogs in a constant state of pregnancy to produce the maximum number of puppies during the mother’s lifetime.
  2. Store the dogs in the smallest confines possible in an effort to keep costs as low as possible.
  3. Leave the dogs in the cages in order to keep labor costs minimal.

Distasteful indeed.

This is not the correct forum to be anymore graphic than my description above, but the pictures of a puppy mill are the most persuasive. Take a little time if you are unfamiliar to check out these links before continuing:

 

http://www.humanesociety.org/news/publications/whitepapers/puppy-mill-research.html?referrer=https://www.google.com/

http://www.vice.com/read/i-worked-for-a-puppy-mill-915

http://www.newsweek.com/investigating-puppy-mills-94245

http://usatoday30.usatoday.com/news/nation/2007-10-31-puppy-mills-main_N.htm

 

https://www.aspca.org/animal-cruelty/puppy-mills

 

That should be sufficient. The City of Las Vegas is righteous and moral in its attempt to cease the sale of puppy mill dogs by area pet shops, and this piece will continue under that assumption. Yet, an inquiry into the constitutionality of the proposed ordinance is a different matter.

 

What Does the Las Vegas Puppy Mill Ordinance Say?

 

First, I would like to thank the folks managing the City of Las Vegas twitter account for providing me the text of the ordinance2)Unfortunately, the link provided no longer functions. I printed off of the ordinance while I had the chance and will quote from my hard copy..

The ordinance is only a page and half long, the most important part being Section 1(A):

No pet shop shall display, sell, deliver, offer for sale, barter, auction, give away, broker or otherwise transfer or dispose3)??? of a dog or cat except for a dog or cat obtained from an animal shelter, nonprofit humane society, or nonprofit animal rescue organization

The ordinance goes on in Section 1(B) to require pet stores to keep certification that their animals are not from puppy mills for one year. Section 2 declares if one section of the ordinance is unconstitional, than the rest of the ordinance remains good law. Section 3 repeals any part of the city code in conflict with the new ordinance, and Section 4 defines the punishment for violation of the ordinance4)a fine of no more than $1,000 or a jail term of not more than 6 months.

Seems simple enough, right? Think again; this is constitutional law we are talking about after all.

 

Applying the Phoenix Puppy Mill Law for Comparison of Constitutionality

 

Multiple media accounts have stated, erroneously5)I’m sure it was an accident, that the Las Vegas ordinance is similar to the one passed by Phoenix. They are correct in stating that each concerns the subject of pet stores selling puppy mill dogs, but there is a very important distinction between the laws, which we will get to in a moment.

The Phoenix law is important because its constitutionality was challenged in federal court by the disaffected area pet store. As much of an6)self-proclaimed expert as I am of constitutional law, it seems reasonable to rely on the analysis of the Arizona judge regarding the constitutional questions at hand7)His 36 page opinion also happens to be well-reasoned and thoughtful

First, let’s take a look at the Phoenix law:

8-3.06 Prohibition on sale of dogs or cats:

A.    No pet shop or pet dealer shall display, sell, deliver, offer for sale, barter, auction, give away, broker or otherwise transfer or dispose of a dog or cat except for a dog or cat obtained from:

1.    An animal shelter;

2.    A private, nonprofit humane society or nonprofit animal rescue organization; or

3.    An animal shelter, nonprofit humane society or nonprofit animal rescue organization that operates out of or in connection with a pet shop.

B.    All pet shops and pet dealers shall maintain records, for a period of one year from the date of acquisition, listing the source of all dogs or cats under their ownership, custody or control. Records shall be immediately available, upon request, to law enforcement, code compliance officials, and any other City employees charged with enforcing the provisions of this section.

C.    This section does not apply to:

1.    A person or establishment, other than a pet shop or pet dealer, which displays, sells, delivers, offers for sale, barters, auctions, gives away, brokers or otherwise transfers or disposes of only dogs and cats that were bred and reared on the premises of the person or establishment;

2.    An animal shelter;

3.    A private, nonprofit humane society or nonprofit animal rescue organization; or

4.    An animal shelter, nonprofit humane society or nonprofit animal rescue organization that operates out of or in connection with a pet shop.

D.    Nothing in this section shall prevent a pet shop or pet dealer from providing space and appropriate care for animals owned by an animal shelter, nonprofit humane society or nonprofit animal rescue agency and maintained at a pet shop for the purpose of adopting those animals to the public.

Date of Addition/Revision/Deletion – Section 8-3.06

+1    Addition on 12-18-2013 by Ordinance No. G-5873, eff. 1-17-2014

 

Section A and B are very similar to the Las Vegas ordinance, which we will deal with first (Section C will come soon, not to worry).

That’s right, now it is time to get out our pocket constitutions!8)Get out from under the desk, it’s going to be ok.

Article I, Section 8 Clause 3 of the U.S. Constitution states that the Congress shall have the power:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Much of our discussion going forward will concern just those first three words.

 

Puppy Mill and the Dormant Commerce Clause

 

Is the ordinance constitutional? You are going to be sorry you asked..Kidding, please don’t go! I promise we will get through this without too much pain9)I will skip the really trying parts.

Before we move on to the Commerce Clause analysis, I can hear our loyal readers shouting at their ithings10)trademark pending “I remember that GMO discussion regarding the Supremacy Clause. How can these municipalities regulate interstate commerce in this instance?” Great question! The difference here is that the federal law regulating the treatment of animals, the Animal Welfare Act, states that it “shall not prohibit any State (or a political subdivision of such State) from promulgating standards in addition to those standards promulgated11)Subsection 2143(a)[1]. Thus, the answer to your question is that the states are permitted to regulate in this arena, so long as the rest of the constitution is abided by.

..Like the Commerce Clause above.

Now we need to define to the so-called Dormant Commerce Clause. Judge Campbell, the author of the Phoenix decision, explains it better than I can:

The Clause also contains a “‘negative’ aspect that denies the States the power unjustifiably to discriminate against or burden the interstate flow of articles of commerce.”…This negative aspect has come to be known as the “dormant Commerce Clause.”… Courts “analyze dormant Commerce Clause claims using the Supreme Court’s two-tiered approach.”…“The first tier asks whether the Ordinance ‘either discriminates against or directly regulates interstate commerce.’” …If so, the Ordinance is subject to strict scrutiny – a “virtually per se rule of invalidity[.]”…The second tier has come to be known as the Pike balancing test. Under Pike, the Court asks whether the burden the Ordinance imposes on interstate commerce is “clearly excessive in relation to the putative local benefits.” (citations omitted, emphasis added)12)Puppies ‘N Love et al v. Phoenix, City of, F.Supp.3d . 2015 WL 4532586 (D. Ariz., 2015), p. 8 link

I will spare you anymore Commerce Clause discussion13)we could go deep into this rabbit hole; there is a reason the Phoenix opinion is 36 pages long, it is the bold part above that really is pertinent to our discussion. The Las Vegas law, like the Phoenix law, will not be subject to strict scrutiny14)because it does not directly regulate interstate commerce, but instead will be evaluated by the Pike balancing test.

We will assume, for sake of brevity, that the ordinances being discussed only incidentally affect interstate commerce. With that being so, the ordinance will be upheld “unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefit.”15)Id. at 28.16)This is where my more conservative friends get upset about judicial activism, and they have a point here. The judge will now evaluate the the effectiveness/value/purpose of the law, and if it is to her liking, then the law will obviously pass the balancing test. If the law seems frivolous in effectiveness/purpose/value then she will say that it does not pass the balancing test. One could argue these are evaluations that should be made by the legislature. If anyone dares to tell you that constitutional law is not political, that judges are just “referees,” for example, stop taking that person seriously at once.

Judge Campbell weighs the factors of the Pike test in favor of Phoenix. He concludes:

“The modern law of what has come to be called the dormant Commerce Clause is driven by concern about ‘economic protectionism, that is, regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors.’” The Ordinance is not an act of economic protectionism. It is a legitimate attempt to curb the problems associated with the inhumane treatment of animals and local dog homelessness and euthanasia. (citation omitted) 17)Id. at 30.

There is no reason to think the the proposed Las Vegas ordinance would not pass a similar evaluation, given that the need to curtail the inhumane treatment of animals and help find homes for homeless animals is no less serious here. A similar law in Chicago was also recently upheld.

 

Where the Las Vegas Puppy Mill Ordinance May Have Some Constitutional Trouble..

 

So everything’s dandy right? The Phoenix law got the sign-off from a federal judge, so there is no reason to to think the Las Vegas ordinance will have any legal trouble…or is there?

Recall earlier that I claimed the Phoenix law differs from the Las Vegas ordinance in one major regard. Allow me to reproduce Section C of the Phoenix Ordinance:

C.    This section does not apply to:

1.    A person or establishment, other than a pet shop or pet dealer, which displays, sells, delivers, offers for sale, barters, auctions, gives away, brokers or otherwise transfers or disposes of only dogs and cats that were bred and reared on the premises of the person or establishment;

2.    An animal shelter;

3.    A private, nonprofit humane society or nonprofit animal rescue organization; or

4.    An animal shelter, nonprofit humane society or nonprofit animal rescue organization that operates out of or in connection with a pet shop.

D.    Nothing in this section shall prevent a pet shop or pet dealer from providing space and appropriate care for animals owned by an animal shelter, nonprofit humane society or nonprofit animal rescue agency and maintained at a pet shop for the purpose of adopting those animals to the public.

The proposed Las Vegas ordinance copied Sections A and B from Phoenix, but left out the above text. Why? Well, I am happy to speculate. Of the 36-page opinion quoted above in our Dormant Commerce Clause discussion, more than 2/3rds of it addresses the constitutionality of Part C. Any serious constitutional challenge to the ordinance would concern the municipalities creating an economic climate that favors local sellers to the detriment of out-of-state sellers.18)Judge Campbell upheld Section C above as constitutional, by the way.

Perhaps the City of Las Vegas thought the best way to avoid a constitutional challenge would be to delete the most controversial language of the Phoenix ordinance19)Or maybe their copy/paste functions as well as mine. Politically, this seems like the best course of actions and the city attorney should be commended on his cleverness.

But this may have unintended consequences.

Chew on this question: Based on the quoted language of the Las Vegas ordinance above20)No pet shop shall display, sell, deliver, offer for sale, barter, auction, give away, broker or otherwise transfer or dispose of a dog or cat except for a dog or cat obtained from an animal shelter, nonprofit humane society, or nonprofit animal rescue organization, what is the definition of “pet shop”?

The purpose of Section C of the Phoenix ordinance is to clarify what businesses the new ordinance would apply to. There is no language in the Las Vegas ordinance addressing this issue.

This is a big deal, honest. If you breed your own dog and sell a puppy to a neighbor, are you a pet shop? If not, how many dogs would you have to sell before you would be classified as a pet shop? Are only shops with business licenses considered pet shops?21)And so on, and so on.

There’s a constitutional law theory called the Vagueness Doctrine that may come into play here. The Legal Information Institute will assist us with a definition:

1) A constitutional rule that requires criminal laws to state explicitly and definitely what conduct is punishable.  Criminal laws that violate this requirement are said to be void for vagueness.  Vagueness doctrine rests on the due process clauses of the Fifth and Fourteenth Amendments of the U.S. Constitution.  By requiring fair notice of what is punishable and what is not, vagueness doctrine also helps prevent arbitrary enforcement of the laws.

2) Under vagueness doctrine, a statute is also void for vagueness if a legislature’s delegation of authority to judges and/or administrators is so extensive that it would lead to arbitrary prosecutions.22)Source

A word on the practicalities of constitutional law before we continue. A law or ordinance is never unconstitutional on its face; meaning, the legislature/city council cannot pass a law that is unconstitutional upon ratification. A court must declare a law unconstitutional for it to be so. My point being that all laws are constitutional until a court says otherwise.

So, for the sake of this conversation, neither of these ordinances, as passed, are unconstitutional. I am only saying that there may be a risk that a court might declare the ordinances unconstitutional.

The City of Las Vegas, while cleverly23)I mean that in the true connotation of the word omitting the disputed language from the Phoenix case, may have opened the door to a different constitutional issue. One might say that it makes more sense24)in terms of risk, not to mention good law/clarity to just include language similar to Section C of the Phoenix ordinance as a federal judge has already declared it constitutional. Why open a fresh can of worms with little legal precedent?

 

That was fun, right? I appreciate you sticking around and spending a little time with us on the Clear Counsel blog. If you are thinking of adopting, I highly recommend the Nevada SPCA25)That little dog in my avatar came from there. They even post photos online of the dogs (and other animals) available for adoption. Look at those cute faces and tell me your home would not be improved with a little fury friend!

http://www.nevadaspca.org/adoptable-animals/adoptable-dogs

 

A couple more links for further reading:

 

http://lasvegas.suntimes.com/las-news/7/104/18721/puppy-mill-regulations-map

 

http://www.abajournal.com/magazine/article/anti_puppy_mill_legislation_across_the_country_is_dogging_pet_stores/

 

Footnotes   [ + ]

1. Hard for me to think of a public meeting topic that would have most of the attendees smiling; these are our times, unfortunately.
2. Unfortunately, the link provided no longer functions. I printed off of the ordinance while I had the chance and will quote from my hard copy.
3. ???
4. a fine of no more than $1,000 or a jail term of not more than 6 months
5. I’m sure it was an accident
6. self-proclaimed
7. His 36 page opinion also happens to be well-reasoned and thoughtful
8. Get out from under the desk, it’s going to be ok
9. I will skip the really trying parts
10. trademark pending
11. Subsection 2143(a)[1]
12. Puppies ‘N Love et al v. Phoenix, City of, F.Supp.3d . 2015 WL 4532586 (D. Ariz., 2015), p. 8 link
13. we could go deep into this rabbit hole; there is a reason the Phoenix opinion is 36 pages long
14. because it does not directly regulate interstate commerce
15. Id. at 28
16. This is where my more conservative friends get upset about judicial activism, and they have a point here. The judge will now evaluate the the effectiveness/value/purpose of the law, and if it is to her liking, then the law will obviously pass the balancing test. If the law seems frivolous in effectiveness/purpose/value then she will say that it does not pass the balancing test. One could argue these are evaluations that should be made by the legislature. If anyone dares to tell you that constitutional law is not political, that judges are just “referees,” for example, stop taking that person seriously at once.
17. Id. at 30
18. Judge Campbell upheld Section C above as constitutional, by the way.
19. Or maybe their copy/paste functions as well as mine
20. No pet shop shall display, sell, deliver, offer for sale, barter, auction, give away, broker or otherwise transfer or dispose of a dog or cat except for a dog or cat obtained from an animal shelter, nonprofit humane society, or nonprofit animal rescue organization
21. And so on, and so on.
22. Source
23. I mean that in the true connotation of the word
24. in terms of risk, not to mention good law/clarity
25. That little dog in my avatar came from there.
music and politics

Copyright Laws: When Music and Politics Do Not Mix

We are in the heart of political primary season, meaning we have reached that time, as we do every four years, where politicians play rock songs during their campaign events, followed by musicians becoming irritated and lashing out at said politicians in the press.

Who is in the right here? Are the musicians being overly sensitive or are the politicians violating copyright law? We will have to unpack a few laws to find out. We will have to start at the primary point of reference for all good legal discussions, the U.S. Constitution.

 

Who regulates copyright laws?

Ah, it is time to get out your pocket constitution that I know all of you are carrying!1)I hear there is a new ithing case that can hold your pocket constitution and smart phone all at once. In case you left your pocket constitution in your other pants, I will reproduce Article VI, Section 2:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. (emphasis added)

 

Supreme huh? The courts interpret Article VI, Section 2, to mean that if the federal constitution expressly grants authority to the federal government to regulate a subject matter, than the states are preempted and may not pass laws regarding that subject area. If the constitution is silent regarding an issue, then the authority to regulate the matter belongs to the states.

So does the constitution grant authority to the federal government to regulate copyright law? Indeed. Let us look at Article I, Section 8:

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

 

Courts interpret Article I, Section 8 to mean that the federal government has exclusive rights to regulate copyright laws2)copyright laws are different than trademarks, which states are permitted to regulate so long as the state laws are not contrary to federal trademark laws.

 

What are the federal copyright laws?

Now we must examine the U.S. Code, in particular 17  U.S.C. 106 and 107:

§ 106. Exclusive rights in copyrighted works

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

 

§ 107: Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

 

As you can see, Section 106 grants an exclusive copyright to the author of a musical work to distribute the work as s/he sees fit.  Political campaigns often cite Section 107 as an excuse when accused of using a song at a rally without consent of the artist. To see if their excuse holds water, we will need to review each of the four elements in more detail.

 

How Section 107 of the copyright law applies to music played at a political rally

  • Purpose and character:
    • This is an inquiry into how the copyrighted music is being used. Courts will often look to see if there is a transformative quality in the art’s application. By transformative, I mean the use of the work that has a copyright changes or updates how the art was originally published. Additionally, courts will look to see if the copyrighted art is being used for profit or not-for profit. Although most candidates go heavily into debt on the trail, they are using the music for personal gain (power if not money), so this factor will not help.
    • Neither have I seen a campaign transform any copyrighted music for their own devises, so this factor will not assist them.
  • Nature:
    • Is the copyrighted work creative or factual? Use of factual material is given more leeway. Courts will also look to see if the work is published or not; they will be more stringent with unpublished works as creators have the right to decide how and if to release their work product.
    • These rock songs are creative works of art, hard to say the nature of the work supports campaigns using the music without permission
  • Amount of the work used:
    • Courts will look to see how much of a song is being played. Playing less than 30 seconds is more likely to be fair use, than playing the entire track.
    • Yet another strike against the campaigns, unless the candidates want to start running to the stage before a speech.
  • Effect on market value:
    • Will the use of the song hurt the market value of the art? This is where the campaigns have the most trouble. There are few forums that are less ‘Rock and Roll’ than a political rally. If a musician cultivates a counter-culture image, then has a straight-laced3)square politician play his or her song, folks might think that the musician is endorsing this politician. If consumers think the artists is lame, that will hurt sales.
    • Although it is possible for a campaign to use a song without issue under the ‘fair use’ doctrine, it is unlikely.

 

Will a Blanket License help protect them from copyright infringement?

For those music industry insiders, you already know of big corporations that license music on a mass scale.  For the rest of us, a small primer. Most artists belong to one of big companies that license use of their artists’ music on a mass scale4)ASCAP and BMI are the two largest companies. They offer what is called a “public performance license” which allows venues to play the music of the company’s artists without copyright infringement.  Many hotels, convention centers, and restaurants purchase one of these blanket licenses that permits them to play any of the company’s artists.

So you would think that many if a campaign held rallies at the large establishments as discussed, they would be protected from copyright infringement actions by the venues blanket license. However, in the contracts for the license, the music licensing companies explicitly prohibit the application of the license for conventions or rallies, meaning the music may be played in the hallways/elevators/common areas but not to heighten the experience of an event.

Additionally, many, if not all rallies, are posted online or played on television.  These public performance licenses do not cover electronic dissemination, and the campaigns will need to get permission from the publisher. This means if a campaign posts a video of a rally with the candidate coming to the stage to the sounds of the hottest rock act going, they are in violation of the copyright laws.

In turn, campaigns will often buy their own blanket license so that they may play music no matter where a rally is held5)who is to say if your local Pizza Ranch is paid up on their music public performance license.  Even this may not be sufficient, as you can see above.

 

Copyright, The Lanham Act, and Music and Politics

By now, you have got to be thinking to yourself, would it just be easier for the campaign to write an original jingle like they did in the old days?6)Come on, the “We like Ike” jingle was gold. The answer is probably. We cannot wrap up this discussion without the Lanham Act signed by President Truman:

 

15 U.S.C. § 1125 – False designations of origin, false descriptions, and dilution forbidden

(a) Civil action

(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which—

(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or

(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities,

shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

(2) As used in this subsection, the term “any person” includes any State, instrumentality of a State or employee of a State or instrumentality of a State acting in his or her official capacity. Any State, and any such instrumentality, officer, or employee, shall be subject to the provisions of this chapter in the same manner and to the same extent as any nongovernmental entity.

(3) In a civil action for trade dress infringement under this chapter for trade dress not registered on the principal register, the person who asserts trade dress protection has the burden of proving that the matter sought to be protected is not functional. (emphasis added)

 

This is similar to the fourth factor of the fair use doctrine. If a campaign was to use a song by an artist that did not like or endorse the politics of the campaign, subsection (A) would likely come into effect.  That is why you often will see campaigns claim that they have a blanket license to use the music of the objecting artist, but will cease playing it at future rallies.

If a campaign does not want to write original music, the course of action7)as I am sure you guessed by now is to ask permission of the artist.

 

What have we learned about copyright law in relation to music and politics?

But given that musicians have been making the same complaints publicly every four years since the mid-eighties, is it safe to assume the politicians now know better and will ask permission of the artists to avoid public shaming?

Does not seem so:

8)Is it worse to literally or figuratively hate someone?

 

Not to be outdone by Neil Young, who posted his thoughts on Donald Trump playing “Rockin in the Free World” during his Presidential announcement last month:

 

Yesterday my song “Rockin in the Free World” was used in a announcement for a U.S. presidential candidate without my permission.

A picture of me with this candidate was also circulated in conjunction with this announcement but It was a photograph taken during a meeting when I was trying to raise funds for Pono, my online high resolution music service.

Music is a universal language. so I am glad that so many people with varying beliefs get enjoyment from my music, even if they don’t share my beliefs.

But had I been asked to allow my music to be used for a candidate – I would have said no.

I am Canadian and I don’t vote in the United States, but more importantly I don’t like the current political system in the USA and some other countries. Increasingly Democracy has been hijacked by corporate interests. The money needed to run for office, the money spent on lobbying by special interests, the ever increasing economic disparity and the well funded legislative decisions all favor corporate interests over the people’s.9)Source

 

Sounds like just the kind of person you want to represent your mainstream candidacy for the Presidency! Of course, many media outlets picked up on Mr. Young’s comments, bringing unnecessary negative attention to the campaign. I am hard pressed to think of examples when asking permission would lead to a less desirable result. Here is more reading on music and political rallies10)my favorite section of the press pieces is in the Daily Beast article where Rep. Paul Ryan gets into a public spat with Tom Morello of Rage Against the Machine, oh the cognitive dissonance! That will be hard to top this election cycle. My hope is that a politician adopts Radiohead’s “Electioneering” as a campaign theme.

 

Daily Beast

CNN

NPR

Washington Post

Footnotes   [ + ]

1. I hear there is a new ithing case that can hold your pocket constitution and smart phone all at once
2. copyright laws are different than trademarks, which states are permitted to regulate so long as the state laws are not contrary to federal trademark laws
3. square
4. ASCAP and BMI are the two largest companies
5. who is to say if your local Pizza Ranch is paid up on their music public performance license
6. Come on, the “We like Ike” jingle was gold
7. as I am sure you guessed by now
8. Is it worse to literally or figuratively hate someone?
9. Source
10. my favorite section of the press pieces is in the Daily Beast article where Rep. Paul Ryan gets into a public spat with Tom Morello of Rage Against the Machine, oh the cognitive dissonance! That will be hard to top this election cycle. My hope is that a politician adopts Radiohead’s “Electioneering” as a campaign theme
civil forfeiture, nevada, police, 4th amendment

Civil Forfeiture in Nevada: What You Need to Know

Recently in the news here in Nevada was the acquittal of Steven Ficano; you may be familiar with his story as he is the elderly man arrested for possessing much more marijuana than legally permissible under the medical marijuana laws.  He was charged with possession, and possession with intent to sell; Mr. Ficano was acquitted by a jury from each charge.  However, along with marijuana, the police seized $51,000 in cash and twenty-six guns, which Mr. Ficano’s lawyer claims are antiques.

Given that Mr. Ficano was acquitted, it would be reasonable to assume that the government would return his cash and antique guns, but you may be surprised to know that this may not necessarily happen.1)for another example of what is called civil forfeiture in the news, look at this story of Tan Nguyen from Humboldt County, the sheriff’s deputies really turned public opinion against themselves by posing with the seized cash on facebook The Tan Nguyen case  As it turns out, there is not law in Nevada that determines what should happen to seized property if property owner is acquitted, at least not yet.

 

The civil forfeiture law currently

The Nevada forfeiture laws are located in chapter 179 of the Nevada Revised Statutes (NRS).   First, here is the law permitting law enforcement officials to seize property:

 

    NRS 179.1165  Seizure of property: Requirement of process.

      1.  Except as provided in subsection 2, property that is subject to forfeiture may only be seized by a law enforcement agency upon process issued by a magistrate having jurisdiction over the property.

      2.  A seizure of property may be made by a law enforcement agency without process if:

      (a) The seizure is incident to:

             (1) An arrest;

             (2) A search pursuant to a search warrant; or

             (3) An inspection pursuant to a warrant for an administrative inspection;

      (b) The property is the subject of a final judgment in a proceeding for forfeiture;

      (c) The law enforcement agency has probable cause to believe that the property is directly or indirectly dangerous to health or safety; or

      (d) The law enforcement agency has probable cause to believe that the property is subject to forfeiture.

      (Added to NRS by 1985, 1466; A 1987, 1382)

 

As you can see, all that is necessary is “probable cause” that the property will be “subject to forfeiture” or that the property is “directly or indirectly dangerous to health or safety.”  As in the case of Tan Nguyen, sufficient probable cause can be an officer claiming the smell of marijuana in the car 2)irrespective if there actually is any marijuana or marijuana smell in the car.

  

Is the civil forfeiture law about to be updated?

Senate Bill (SB) 138, currently working its way through the legislative process3)It has been unanimously approved by the assembly and the senate, it is currently awaiting a signature from Governor Sandoval.  In SB 138, the legislature requires police departments to report all forfeitures to the attorney general once a year, so we will now have an accounting of how much property is being seized each year.  Additionally, SB 138 addresses what should happen to seized property upon an acquittal.  Here is the current law:

      NRS 179.1173  Proceedings for forfeiture: Priority over other civil matters; motion to stay; standard of proof; conviction of claimant not required; confidentiality of informants; return of property to claimant.

      1.  The district court shall proceed as soon as practicable to a trial and determination of the matter. A proceeding for forfeiture is entitled to priority over other civil actions which are not otherwise entitled to priority.

      2.  At a proceeding for forfeiture, the plaintiff or claimant may file a motion for an order staying the proceeding and the court shall grant that motion if a criminal action which is the basis of the proceeding is pending trial. The court shall, upon a motion made by the plaintiff, lift the stay upon a satisfactory showing that the claimant is a fugitive.

      3.  The plaintiff in a proceeding for forfeiture must establish proof by clear and convincing evidence that the property is subject to forfeiture.

 

Below is the update to NRS 179.1173 that has been approve the by the Nevada state assembly and senate.  The strikethrough portions are the sections of the old law, deleted by the new one.  The underlined portions are the additions to the statute.

      NRS 179.1173

1.  [The] Except as otherwise provided in subsection 2, the district court shall proceed as soon as practicable to a trial and determination of the matter. A proceeding for forfeiture is entitled to priority over other civil actions which are not otherwise entitled to priority.

2.  At a proceeding for forfeiture, the [plaintiff or claimant may file a motion for] court shall issue an order staying the proceeding [and the court shall grant that motion if a] that remains in effect while the criminal action which is the basis of the proceeding is pending trial. The court shall [, upon a motion made by the plaintiff,] lift the stay [upon a satisfactory showing that the claimant is a fugitive.] after the trial is completed. If the claimant is acquitted during the trial, the property of the claimant must be returned to the claimant within 7 business days after the acquittal.

3.  If property has been seized and the criminal charges against the owner of such property are denied or dismissed, all such property must be returned to the owner within 7 business days after the criminal charges are denied or dismissed.

4.  The plaintiff in a proceeding for forfeiture must establish proof by clear and convincing evidence that the property is subject to forfeiture.

 

Note in subsection 2 that law enforcement will be required to return seized property after an acquittal within seven business days.  The same is true, as stated in subsection 3, for seized property when the criminal charges are dismissed.  Providing this guidance in the statute benefits the public and police departments.  As of 29 May, the bill has been delivered to the governor.  We will have to wait and see if he signs it into law.

For more information about civil forfeiture as a national problem, see New Yorker “Taken”

Footnotes   [ + ]

1. for another example of what is called civil forfeiture in the news, look at this story of Tan Nguyen from Humboldt County, the sheriff’s deputies really turned public opinion against themselves by posing with the seized cash on facebook The Tan Nguyen case
2. irrespective if there actually is any marijuana or marijuana smell in the car
3. It has been unanimously approved by the assembly and the senate, it is currently awaiting a signature from Governor Sandoval
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