Policing Property

  (Source) I. Property and Criminality In the first week after Derek Chauvin killed George Floyd in Minneapolis, the New York City Police Department arrested more than two thousand protesters in New York City. At least a quarter of those arrested were charged with burglary. Mayor Bill de Blasio distinguished between protesters and perceived opportunists, “doing things like looting for pure financial gain, pure criminal gain, nothing to do with protests whatsoever.”  The specter of the looter—lying in wait for the opportunity to take advantage of social upheaval—is connected to ideas about the latent criminality of unpropertied people. It has been used to justify the extensive surveillance of nonwhite communities, and protest movements calling account to injustice. “Law and order” has roots in the protection of property and in white supremacy. The conflation of Blackness and criminality is inextricably tied to the relationship between property and policing, distinguishing criminals from non-criminals. Racial categories emerge from the governance of property relative to those who have historically had none, who we therefore imagine “harbor criminal disregard for the propertied order.” Whiteness is a property, valuable insofar as categorically excluding Black people maintains it.  Maintaining property interests has always been central to the modern [read more]

Next on The Trump Show: Trump Exploits the Coronavirus to Ban Immigrants

(Source) While the United States and the world glues their attention to the historic protests for racial justice following the killing of George Floyd by Minneapolis police, and the Trump Administration creates ever-growing casualties like exploding unemployment, rising death tolls, and public unrest, the cast of The Trump Show is drumming up a far more subdued spectacle behind the curtain. Using this historic moment as cover, the Administration has continued to move full-steam ahead towards dismantling the U.S. immigration system. On the heels of the Administration’s latest proclamations prohibiting travel for certain foreign nationals that have traveled to or been present in the People’s Republic of China, Iran, the Schengen Area of the European Union, the United Kingdom and Republic of Ireland, and Brazil, President Trump, citing labor market conditions resulting from the COVID-19 pandemic, recently issued two significant Proclamations fundamentally altering the U.S. visa issuance process. In April, Trump signed Proclamation 10014, placing a “temporary” sixty-day ban on the issuance of certain new employment-based permits for lawful permanent residence (also known as green cards). And in June, Trump issued Proclamation 10052, extending the Proclamation 10014 bans until at least December 31, 2020 and issuing a new ban on foreign [read more]

Diagnostic Methods as a Category of Patent-Ineligible Subject Matter

(Source) The authority to grant to patents arises from Article Eight of the United States Constitution. Specifically, Clause Eight grants Congress the power 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.” Through this clause, Congress is empowered by the Constitution to grant copyrights and patents. Under this authority, Congress has enacted and promulgated various statutes in furtherance of promoting the progress of science and the useful arts. One such statute is 35 U.S.C. § 101, whose interpretation has been embroiled in controversy over the past decade. The statute delineates the types of subject matter that are patentable. Section 101 renders patentable “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” Laws of nature and natural phenomena are prima facie unpatentable. Additionally, a mathematical formula is unpatentable because it “is merely a statement of a law of nature.” Similarly, medical diagnostic processes should be deemed as a category of patent-ineligible subject matter for numerous reasons. First, courts have repeatedly struck down patent claims to medical diagnostic processes unless they include a step of [read more]

Fraud and Shortages in the PPE Market and the Failures of the Trump Administration

(Source)   It has been five months since the first COVID-19 case was reported in Seattle, the epicenter of the outbreak in the US. As the virus spread, patients flooded into hospitals as hundreds of people got sick. The US soon realized that hospitals, healthcare facilities, nursing homes, and the government alike were short of the gear that would keep the healthcare workers at the frontline of the pandemic alive and healthy. At a time when their expertise and care were paramount, their lives were put at risk in a way that was unprecedented in recent history. Suddenly, the government and healthcare facilities across the nation were in a frenzy, hurrying to find personal protective equipment (“PPE”) for healthcare workers. What they faced were empty warehouses, factories at capacity, and a market ridden with fraud. This supply chain shortage and fraud in the PPE market is unrelenting and has left practitioners finding alternative means to protect themselves. In March, nurses at Mount Sinai hospital were spotted wearing trash bags fashioned as protective gear. Medical practitioners around the country were forced to reuse PPE, even though the FDA has reported that “protective capabilities of [reused] single-use PPE cannot be assured.” One [read more]

Today’s Media Landscape: Legal Protections For The Press From Arrest and Police Violence

(Source) Journalism is often referred to as the Fourth Estate because of the central role it plays in the political system. From the beginning of the United States, the importance of a free press has been recognized and given special consideration. From Thomas Jefferson’s famous words: “[W]ere it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter[,]” the importance of a free press has been repeatedly affirmed by the nation’s leaders. The importance of journalism to our society is never more visible than during periods of civil unrest. Brave journalists risking their safety to tell the stories of protestors is essential to achieving wide-reaching change through protest. The work of journalists in these situations both amplifies the voices of the protestors and serves as a check on the government’s ability to limit the rights of the protestors. In many cases, police officers who commit violent misconduct would not face consequences if not for video evidence recorded by journalists or ordinary citizens. However, for journalists to serve their essential role during acts of protest, their constitutional right to report must not be [read more]

Separating Federal Immigration Enforcement from Community-Oriented Policing: How the COPS Grant Program Misses the Mark

(Source) Combating illegal immigration has become a cornerstone of the Trump administration’s agenda. President Trump has frequently touted the allegedly threatening impact of immigration on crime and the economy to justify ramping up federal immigration enforcement efforts. However, many jurisdictions have adopted an implicit policy of obstructing such efforts by refusing to disclose information on suspected undocumented or illegal immigrants. These “sanctuary cities” have been embroiled in numerous legal battles with the Trump administration. Cases involving the denial of federal grant funding to sanctuary cities have proven especially controversial and continue to play out today. The COPS Grant Program Created under the Violent Crime Control and Law Enforcement Act of 1994 (“the Act”) and under the supervision of the Department of Justice (DOJ), the Community Oriented Policing Services (COPS) Program aims to “advance community policing in all jurisdictions across the United States” by awarding grants to state, local, and tribal law enforcement agencies. Congress initially funded the program to hire more street-level law enforcement officers, also known as beat cops, during the Clinton administration. The COPS Program issues competitive grants, as opposed to formula grants, meaning that state, local, and tribal governments must apply for access to a limited pool [read more]

Punishing the Victim: IRC §162(m) and the Limitation on Deducting Executive Compensation

(Source) The phenomenon of punishing the victim is unfortunately a familiar one. Too often, a person in need of protection discovers that those whose ostensible task it is to assist not only do not offer the necessary protection but in fact exacerbate the harm. Here is a current example. Section 162(m) of the Internal Revenue Code provides that a publicly held corporation may not deduct compensation in excess of $1,000,000 paid to its principal executive office, its principal financial officer, or any of its three other most highly compensated employees (if the compensation paid to that employee is required to be reported to its shareholders under the Securities Exchange Act of 1934). Until 2017, IRC §162(m) was fairly easy to avoid as it did not apply to performance-based compensation: bonuses, stock options, and so forth. However, the 2017 Tax Cuts and Jobs Act eliminated this escape route. Today, regardless of how the compensation package is structured, the corporation can deduct a maximum of $1,000,000 for each of its covered employees. Underlying IRC §162(m) is the concern that the entrenched power of corporate management and the lack of effective oversight foster excessive executive compensation. The issue addressed by this provision is [read more]

Go Fund Me Tax-Free: A Discussion of the Federal Tax Treatment of Funds Generated on Personal Crowdfunding Platforms such as GoFundMe from an Individual Tax Perspective

(Source) In 1913, Congress passed the Sixteenth Amendment to the United States Constitution which subjected all individuals to federal income taxation. According to the Center on Budget and Policy Priorities, income tax comprised 51% of all tax revenue in 2018 whereas payroll tax and corporate income tax comprised only 35% and 6% respectively. Because an individual’s income determines in large part their federal income tax liability, and federal tax revenue generally, the definition of what constitutes as income for federal taxation purposes has always been a hotly contested issue. Generally, however, the federal government defines income broadly. In fact, Section 61 of the Internal Revenue Code (IRC) defines income as “all income from whatever source derived[.]” Over the years, and as a result of much federal tax litigation, the definition of income has expanded to include sources of income that the average taxpayer might not recognize, including but not limited to social security, tuition scholarships, debt forgiveness, found property, big prizes, and yes, even fantasy football winnings. In fact, the Internal Revenue Service (IRS) even counts as income funds generated through illegal activities such as embezzlement, drug sale and trafficking, and theft. As Congress, the Internal Revenue Service (IRS), and [read more]

COVID-19 and the Criminal Justice System: How Prisons and Prisoners are Impacted

  (Source)   “The closest thing I can equate it with is…when you’re locked in a cell in a giant, old, deteriorating jailhouse, is the fear that there will be a fire and no one will come in and unlock your cell. What caught my attention about this virus is that it really feels like there’s a fire in this prison.” An inmate at Washington State describes the inevitability of COVID-19 and the powerlessness he feels at remaining incarcerated as the virus rapidly spreads. When prisoners routinely lack access to soap, and when hand sanitizer is considered contraband in prisons, it is easy to imagine the rapid proliferation of the infection. Lack of access to sanitation is only part of the conditions that make prisoners particularly vulnerable to COVID-19. Close quarters, frequently used communal spaces, and lack of adequate medical care are just a few other factors that make prisons and jails petri dishes for the spread of disease. Indeed, these factors have caused a huge spike in the number of COVID-19 cases over the past months. As the number of cases rise in the general United States population, the number of cases in prison skyrockets. Though New York City [read more]

Unauthorized Disclosure: Judicial Violation of Mental Health Privacy

(Source) Brandon Sharp managed a gas company in East Texas. Healthy, in his thirties, Sharp rarely saw a doctor. And yet he owed thousands of dollars in medical bills. Sharp was the target of medical identity theft, which victimizes tens of thousands of people each year. Thieves steal patient information, including names, Social Security numbers, addresses, and medical histories, and then submit fraudulent insurance claims for surgery and prescriptions. Victims, like Sharp, face more than inconvenience: sometimes police arrest them instead of the thief for insurance fraud, or their information is conflated with the thief’s, leading to misdiagnosis. Contrary to popular opinion, the most common mode of theft is not computer hacking or breaking and entering but unauthorized disclosure by providers. Section 33.13 of New York’s Mental Hygiene Law aims to prevent unauthorized disclosure. It prohibits providers from releasing patient information, specifically mental health records, absent an exception. A mental health record includes “all pertinent documents relating to the patient” about legal status, examination, care, and treatment. However, New York state courts routinely violate Section 33.13. Claimants often sue New York when a patient in a state hospital injures them. In these cases, New York courts have ordered hospitals to [read more]
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