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KOTEX GOD OF BLOOD posted:This was also my first thought. Are police officers setting up for a "tactical advantage" really equivalent to troops demanding housing under the 3rd? It's not like there's a well-developed 3rd Amendment jurisprudence to use as a guide. One of those three cases that was decided on the 3rd was from corrections officers who were booted from housing while the National Guard performed was doing police work, which seems analogous. quote:In 1983, the Second Circuit ruled that the State of New York violated the Third Amendment rights of striking correction officers who were booted from staff housing by National Guard troops. The national guard are more obviously "troops" than the police, but they were deployed in police work during the time in question. Ironically enough in this case the police were basically doing military work ("seeking a tactical advantage"). Paul MaudDib fucked around with this message at 20:06 on May 8, 2014 |
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May 8, 2014 19:44
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KOTEX GOD OF BLOOD posted:This was also my first thought. Are police officers setting up for a "tactical advantage" really equivalent to troops demanding housing under the 3rd? It's not like there's a well-developed 3rd Amendment jurisprudence to use as a guide. Like I said earlier, the 3A claim is just one of the many claims in the entire thing. There are 4th and 14th amendment claims on due process grounds and quite a few other claims as well. I'm pretty sure it hasn't hit trial yet because the police department and city are doing everything they can to settle with this guy before it all gets to trial.
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May 8, 2014 20:18
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Presumably, all quartering is for the purposes of gaining a tactical advantage. Or at least a strategic one.
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May 8, 2014 20:53
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Two things being done for the same purpose (especially if only in a very general sense) are not necessarily the same. Quartering means providing lodging, so even if the police are "soldiers" under 3A (which I find plausible), its does seem like a stretch to argue they were quartered in the house.
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May 8, 2014 21:18
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I don't think the 3rd Amendment has ever been interpreted to apply to police, it goes against all normal interpretation schools of thought (and especially all the ones conservatives like to invoke).
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May 8, 2014 22:06
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Discendo Vox posted:I don't think the 3rd Amendment has ever been interpreted to apply to police, it goes against all normal interpretation schools of thought (and especially all the ones conservatives like to invoke).
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May 9, 2014 07:33
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ShadowHawk posted:Surely garrisoned British regulars enforcing order Gendarme-style would count as police even though they're also soldiers. There's a very real argument that militarized police forces would count as soldiers in the same fashion. "militarized" is doing all the work in that sentence- how are you defining it? Do you have a source for someone making that argument in a 3A context? The people in question would basically have to be the army in terms of role and function for the analogy to make sense. vvvvv I know, but the framing made me strongly suspect I'd get a cite to Radley Balko. That said, what jurisprudence there's been on the subject hasn't looked anything like this structuring of the issue. Discendo Vox fucked around with this message at 14:07 on May 9, 2014 |
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May 9, 2014 14:02
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Discendo Vox posted:"militarized" is doing all the work in that sentence- how are you defining it? Do you have a source for someone making that argument in a 3A context? There are like three third amendment cases ever. You can't really go hog-wild with demanding precedent to support an argument in a third amendment context because it just doesn't exist, for good or bad arguments.
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May 9, 2014 14:04
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Kiwi Ghost Chips posted:It's weird that the guy is suing under 3A anyway when a 4A unlawful seizure makes way more sense. Well, I imagine the unlawful seizure was temporary so his damages on a pure property/seizure claim might be minimal, and I imagine the state might have some sort of "sudden emergency" defense given the situation. The 3rd lets him go hog-wild and make whatever arguments he wants, because there's no case law against him. But without reading up on the case at all my best guess is he's just a libertarian/tea party type acting pro se.
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May 9, 2014 14:36
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Going in other direction, imagine a government tried to quarter someone totally non-military in someone's home --- say a water quality expert for the EPA or something. Surely that would be inapporuate taking? Seems to me the 3rd is mostly redundant and exists because that was a particular thing the British did.
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May 9, 2014 14:59
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Hieronymous Alloy posted:Well, I imagine the unlawful seizure was temporary so his damages on a pure property/seizure claim might be minimal, and I imagine the state might have some sort of "sudden emergency" defense given the situation. He isn't acting pro se. His complaint is that police were responding to an incident at a neighbor's residence and requested that they use his house as a command center. He refused, at which point they beat him, searched his house, and used it as a center anyway.
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May 9, 2014 15:06
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OddObserver posted:Going in other direction, imagine a government tried to quarter someone totally non-military in someone's home --- say a water quality expert for the EPA or something. Surely that would be inapporuate taking? Seems to me the 3rd is mostly redundant and exists because that was a particular thing the British did. Well, I think the 3rd is also important in that it's a large basis for the general right of privacy -- most of the important citations to the 3rd amendment are in support of the whole "penumbra of rights" theory that establishes the right to privacy. It's not just about the taking of the property; it's about having a dude living in your house listening to what you say and watching who you talk to. Change "water quality expert" to "NYPD Muslim Surveillance Task Force Member" and the point leaps out at you. That's not something the government should be able to get a warrant to do, period; there's no good reason for it. A personal pet theory of mine is that at some point someone's going to make an argument against government surveillance based on the 3rd. It's right there. It's just that in the colonial era, in order to impose mass surveillance you had to actually stick a soldier in everyone's home, instead of just sticking in a microphone and a camera (or an xbox and a wiretap).
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May 9, 2014 15:07
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Here is the amended complaint: http://www.scribd.com/doc/223077220/Mitchell-v-City-of-Henderson-Nevada
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May 9, 2014 15:08
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When we talk about protections from search and seizure, who was it carrying out the searches back then? The army.
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May 9, 2014 16:59
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Hieronymous Alloy posted:Well, I think the 3rd is also important in that it's a large basis for the general right of privacy -- most of the important citations to the 3rd amendment are in support of the whole "penumbra of rights" theory that establishes the right to privacy. It's not just about the taking of the property; it's about having a dude living in your house listening to what you say and watching who you talk to. Change "water quality expert" to "NYPD Muslim Surveillance Task Force Member" and the point leaps out at you. That's not something the government should be able to get a warrant to do, period; there's no good reason for it. SedanChair posted:When we talk about protections from search and seizure, who was it carrying out the searches back then? The army. Where are you guys getting this. The 3rd wasn't created in response to any kind of surveillance, and although I can't pull it up right now I'm pretty sure it's not cited in Griswold, either. Searches and seizures is the fourth amendment. The third is a weird historical dud that hasn't been relevant in US history. The situation it addresses doesn't apply here without a really tortured reading, and other constitutional doctrines work much better.
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May 9, 2014 17:50
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That was my point, the search and seizure protection of the 4th that we apply to police was originally applied to the army.
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May 9, 2014 17:54
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Discendo Vox posted:Where are you guys getting this. The 3rd wasn't created in response to any kind of surveillance, and although I can't pull it up right now I'm pretty sure it's not cited in Griswold, either. Searches and seizures is the fourth amendment. The third is a weird historical dud that hasn't been relevant in US history. The situation it addresses doesn't apply here without a really tortured reading, and other constitutional doctrines work much better. The 3rd was a reaction to the intolerable acts which was the response to the Boston tea party. It required troops to be quartered in private homes, inns, taverns, etc with the explicit purpose to quell rebellion.
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May 9, 2014 17:58
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hobbesmaster posted:The 3rd was a reaction to the intolerable acts which was the response to the Boston tea party. It required troops to be quartered in private homes, inns, taverns, etc with the explicit purpose to quell rebellion. Much as merely implicit corruption is not actually corruption the merely implicit role of expanding surveillance in stifling dissent means it doesn't exist to stifle dissent. :robertssay:
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May 9, 2014 18:04
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UberJew posted::robertssay: A finger wagging in a human face -- forever.
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May 9, 2014 18:09
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During the NATO summit in Chicago, the CPD brought in thousands of out-of-state police officers to handle anticipated protests in the city. Hypothetically, if the city ordered condo-owners in the loop to house them, would you think that didn't violate the Third? I doubt it would be considered a taking, especially if the city offered token compensation. If they don't go snooping through the medicine cabinets, it's not really a violation of the Fourth either.
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May 9, 2014 18:10
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Looks like I was wrong- and it's cited in Griswold, too. That said, I still feel like there are more applicable constitutional doctrines. vvvvv Dude, I don't have Lexis or West in this location. I had to go dig up my con law textbook. That said, if you wanted to pull a surveillance argument out of the penumbra, the 3rd still feels like a stretch. Discendo Vox fucked around with this message at 19:19 on May 9, 2014 |
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May 9, 2014 18:24
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Discendo Vox posted:Looks like I was wrong- and it's cited in Griswold, too. That said, I still feel like there are more applicable constitutional doctrines. Hey, give me some credit, I at least have enough sense to actually check Griswold before I make a post like that :P Though I don't think we actually disagree all that much. The 3rd amendment is still mostly a historical relic. I was just pointing out that it does have some limited role in constitutional jurisprudence beyond that, almost wholly through Griswold and the successor cases to Griswold. I also think that it's at least interesting, if only as an intellectual exercise, to consider whether or not the 3rd amendment has renewed applicability in our new era of mass cheap surveillance. Is the government using your Xbox to spy on you, something the Snowden documents reveal is at least possible, all that different from the government actually stationing a soldier to live in your home?
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May 9, 2014 18:57
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Hieronymous Alloy posted:Hey, give me some credit, I at least have enough sense to actually check Griswold before I make a post like that :P Depends on what the original theory of the 3rd Amendment was. While Griswold and co may cite it for privacy arguments, the current Court isn't going to go for that - they'll limit it sharply to actually imposing the physical presence of a soldier in a home, which was the original intent.
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May 9, 2014 19:20
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Kalman posted:Depends on what the original theory of the 3rd Amendment was. While Griswold and co may cite it for privacy arguments, the current Court isn't going to go for that - they'll limit it sharply to actually imposing the physical presence of a soldier in a home, which was the original intent. This is where my naïve-about-con-law self makes puppy eyes about the Ninth.
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May 9, 2014 19:44
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UberJew posted:Much as merely implicit corruption is not actually corruption the merely implicit role of expanding surveillance in stifling dissent means it doesn't exist to stifle dissent. The 4th amendment is less split along court lines than you might think. Check out Kyllo v. United States.
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May 9, 2014 19:49
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Hieronymous Alloy posted:I also think that it's at least interesting, if only as an intellectual exercise, to consider whether or not the 3rd amendment has renewed applicability in our new era of mass cheap surveillance. Is the government using your Xbox to spy on you, something the Snowden documents reveal is at least possible, all that different from the government actually stationing a soldier to live in your home? I thought the implicit concern when quartering Redcoats was that they wouldn't be bound by local law enforcement, so in practice nothing would be stopping them from taking liberty with your wife and daughters. Maybe I've been watching too much Game of Thrones, but in my mind the problem is that they're psuedo-foreign soldiers just as much as turning my home into a temporary B&B.
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May 9, 2014 19:50
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Kiwi Ghost Chips posted:The 4th amendment is less split along court lines than you might think. Check out Kyllo v. United States. Kyllo was the Rehnquist court, I was very much needling Roberts specifically as a sentient pile of garbage. That said, since 4 of the members have changed since it doesn't say much about the present political split of the court one way or the other. atelier morgan fucked around with this message at 20:03 on May 9, 2014 |
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May 9, 2014 20:00
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Kalman posted:Depends on what the original theory of the 3rd Amendment was. While Griswold and co may cite it for privacy arguments, the current Court isn't going to go for that - they'll limit it sharply to actually imposing the physical presence of a soldier in a home, which was the original intent. Yeah, that's true. Cheekio posted:I thought the implicit concern when quartering Redcoats was that they wouldn't be bound by local law enforcement, so in practice nothing would be stopping them from taking liberty with your wife and daughters. Maybe I've been watching too much Game of Thrones, but in my mind the problem is that they're psuedo-foreign soldiers just as much as turning my home into a temporary B&B. Well, that's the thing. It's not like there's just one reason for each of the Amendments; restrictions on the press are bad for plenty of reasons, not just because we want to allow printers to print attacks on King George without getting charged with treason. Similarly here I think a population that had actually had enemy soldiers forcibly living in their homes would have a lot of different reasons why they weren't fans of that practice. Hieronymous Alloy fucked around with this message at 20:11 on May 9, 2014 |
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May 9, 2014 20:09
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Cheekio posted:I thought the implicit concern when quartering Redcoats was that they wouldn't be bound by local law enforcement, so in practice nothing would be stopping them from taking liberty with your wife and daughters. Maybe I've been watching too much Game of Thrones, but in my mind the problem is that they're psuedo-foreign soldiers just as much as turning my home into a temporary B&B. I was under the impression that their presence was there to make it harder for people to organize against the government. For instance, one of the reasons the founders would meet with/at Paul Revere's house is that he had so many children that there just wasn't room for a quartered soldier. I agree that the british soldiers would have been seen as pseudo-foreign, but I'd assume that the founders were trying to prevent a situation where congress wanted to put domestic soldiers into people's homes. So the hypothetical soldiers would be domestic and bound by US law.
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May 9, 2014 21:10
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UberJew posted:Much as merely implicit corruption is not actually corruption the merely implicit role of expanding surveillance in stifling dissent means it doesn't exist to stifle dissent. I feel like Roberts would walk on a restaurant check and claim that when he sat down and said he wanted a steak it was just an observation he was making, but since there was no explicit agreement to exchange money for it, he doesn't owe you anything for the steak you brought of your own free will in response to what you thought was an implicit agreement.
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May 10, 2014 04:49
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Discendo Vox posted:vvvvv Dude, I don't have Lexis or West in this location. I had to go dig up my con law textbook. That said, if you wanted to pull a surveillance argument out of the penumbra, the 3rd still feels like a stretch. Google Scholar is pretty good.
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May 10, 2014 05:06
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falcon2424 posted:I was under the impression that their presence was there to make it harder for people to organize against the government. For instance, one of the reasons the founders would meet with/at Paul Revere's house is that he had so many children that there just wasn't room for a quartered soldier. Actually the reason for putting soldiers into homes was a purely practical issue of housing soldiers to maintain order. You're looking at a period before modern police forces and the military/gendarmes were pretty much the only choice for central government. When they originally sent a force to Boston (I think it was) none of the locals would provide accomodation and the local legislatures didn't want to assist with housing troops they saw as there to impose central government control, so you ended up with a small army forced to spend the winter in tents. The obvious solution for the British government was to mandate that locals provide lodgings for soldiers (though I believe they were meant to be compensated, not sure on that). Of course the objection was to private citizens being deprived of privacy and control over their own property in order to provide housing for government soldiers. I don't think the 'foreign soldier' thing was a part, most colonists regarded themselves as British citizens at the time so it really wasn't a foreign army. Also if that had been the case they wouldn't have seen the need to put it into the US Constitution. It's really, I think, a guarantee that the state won't seed local areas with soldiers and that the right of citizens to control their own property trumps the convenience of the government. Which may be grounds for this particular case (forcing a citizen to surrender some control of his property to make the government forces' jobs easier).
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May 10, 2014 06:04
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The Federal Circuit was Reagan's greatest crime.
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May 10, 2014 18:25
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So IP has never made much sense to me but this is basically gonna be a gimme to trolls at worst, and another tool for tech giants to slap each other with at best, right?
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May 11, 2014 01:00
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Jagchosis posted:So IP has never made much sense to me but this is basically gonna be a gimme to trolls at worst, and another tool for tech giants to slap each other with at best, right? Perhaps far worse: speaking as a computer person (and not a lawyer), depending on details it may make it impossible to create independent competing re-implementations of market-leading products that can interoperate with them or replace them. Edit: household application: less video games on Mac if Microsoft feels like being douchey! Edit #2: how do federal circuit decisions work as precedents for a non-patent case anyway? OddObserver fucked around with this message at 02:05 on May 11, 2014 |
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May 11, 2014 02:03
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OddObserver posted:Perhaps far worse: speaking as a computer person (and not a lawyer), depending on details it may make it impossible to create They only held that APIs can have a copyright, not that you can't reproduce them for interoperability reasons. It's not that bad. For precedent, they were theoretically interpreting 9th circuit precedent - a district court might choose to follow it, but they probably aren't bound to.
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May 11, 2014 02:30
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Kalman posted:They only held that APIs can have a copyright, not that you can't reproduce them for interoperability reasons. It's not that bad. Yes, but if an API is copyrightable then it seems a reimplementation of it might be a derivative work (since it has to include the now-copyrightable method names + signatures), and hence not possible w/o copyright owner's permission, or fair use (which can't really be interpreted without courts, can it?)? So for my example, WINE might not be able to reimplement Microsoft's Windows APIs, which means winelib won't be available to be used for companies to make their products (commonly video games) available on OS X, making it harder for competitors to Windows to get products for their OSes. I am also troubled since I can't see how one can say that copyrightability of API signatures is different from that of network protocols, or (far more of a stretch, but perhaps more troubling) file formats.
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May 11, 2014 02:47
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OddObserver posted:Yes, but if an API is copyrightable then it seems a reimplementation of it might be a derivative work (since it has to include the now-copyrightable method names + signatures), It was remanded for a determination if fair use, and while fair use does require a court interpretation, it's almost certainly going to be found to be fair use to reimplement the API, which the next person sued for will point to, meaning that over time it becomes understood that it is fair use and the suits stop. (If you actually read the court case you'd understand why it probably doesn't apply to network protocols or file formats.)
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May 11, 2014 10:38
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The part you're concerned about, that is reimplementation of various APIs is ok. Google pretty blatantly just copy/pasted huge chunks of code. Besides, the district court reasoning was pretty lovely, in general, so it's good that it was overturned.
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May 11, 2014 12:12
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Mr. Nice! posted:The part you're concerned about, that is reimplementation of various APIs is ok. Google pretty blatantly just copy/pasted huge chunks of code. Well, yes and no. Google copied the function definition code (the .h file, basically) and wrote their own implementations of the functions. But that's not why the decision said Google infringed - the decision said that the naming and organizational convention of the interface API was copyrightable. It's more problematic than you make out because it wasn't that Google copied the code, it's that the interfaces themselves were copyrightable so even if Google had reproduced the interfaces via reverse engineering, they still would have infringed. (Note: I think the decision at the Fed Cir was wrong and that there basically is and should be an interoperability exception to copyright in computer API code, although the cases setting out that exception apply in different factual circumstances and are thus differentiable.)
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May 11, 2014 12:41
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