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Order Against Family Members:

One thing that struck me about the Mongol trademark injunction is that it applied not just to the parties -- there, the criminal defendants and those "in active concert or participation with them" -- but also to the defendants' "family members."

What justification can there be for imposing a speech restriction on someone, or even an order that he surrender property more generally, because he's a "family member[]" -- e.g., sibling, cousin, adult child, parent of an adult child, etc. -- of a criminal defendant? I would think that people's free speech rights or property rights generally can't turn on whom they happen to be related to. (Spouses are a different story, because that's a voluntary legal arrangement; likewise, parents and minor children have mutual legal obligations; but I'm speaking here of other family relationships.)

Perhaps in some situations, such as with antinepotism policies, the government acting as employer may indeed deny people certain benefits (such as a government paycheck). But when it comes to the government acting as sovereign, ordering the seizure of property, or restricting the display of symbols, how can one's relationship with a criminal defendant diminish one's legal rights? On top of that, given that this is a court order, which usually applies only to parties and to those who are indeed acting in concern with the parties, how can someone who isn't before the court be bound by the order just because of the family connection? And, finally, exactly what would "family member[]" mean in such an injunction?

Are such injunctions commonplace (even outside the quite unusual context of the government trying to seize copies of symbols)? Have courts concluded that they may indeed impose legal obligations on "family members" of parties? Has there been some evaluation by appellate courts of whether such obligations are legally permissible? I'd love to see any specific legal authorities on the subject.

Related Posts (on one page):

  1. Order Against Family Members:
  2. Court Order Seizing Copies of Mongol Biker Gang Symbol:
JNHeath (mail):
A possible explanation is that the Mongol's club claimed to retain ownership of the products themselves, and not just the image. I have heard that is the case with Hell's Angel's embroidered patches -- members do not "own" them, they remain the property of the club. If you get kicked out of the club, you have to surrender the patch.

It's the same with police badges and, I think, driver's licenses, and other artifacts that indicate membership in a group. The Mongols might have extended that to their coffee mugs etc.

JNH
10.24.2008 5:23pm
Dilan Esper (mail) (www):
I had kind of the flip side of this once, when I was working to overturn a gag rule that was imposed on a defense team in a prominent criminal prosecution. The gag rule barred the defendant from speaking as well as the lawyers.

You may be able to gag the lawyers under some circumstances (substantial likelihood of material prejudice to a judicial proceeding, under Gentile), on the ground that they are officers of the court and voluntary participants. Gagging the defendant, however, seems to me to be an absolute no-no. That basically means that the government can suppress a person's free speech rights simply by bringing a criminal charge against that person.

I suspect in both the case Professor Volokh refers to and mine, a lot of what is going on is typically broad injunction language ("and all those acting in concert") was moved over to a different context without anyone considering the free speech issues.
10.24.2008 5:29pm
Edward A. Hoffman (mail):
A more fundamental problem is that the court does not have jurisdiction over non-parties. Only the government and the defendants are parties to a criminal case. The court can't make any orders as to anyone else unless and until they are brought into the case. The court can restrict the way the defendants interact with some non-parties, but as to family members even this authority (which is not what the court is doing here, btw) must be quite limited.

And then there's the question of how to define "family member". Is the order supposed to apply to cousins who seldom see the defendants? What about more distant cousins who don't even know they're related?

This leads to the problem of notice. Who is supposed to notify all these non-party family members of the order that supposedly binds them? How are they going to even get the names and addresses of all these people?
10.24.2008 5:34pm
Edward A. Hoffman (mail):
Another important point about notice: the family members who are supposedly bound by this order likely had no notice that it was being sought and thus no opportunity to oppose it -- for example, by pointing out the problems I listed in my prior post. This strikes me as a blatant violation of their due process rights.
10.24.2008 5:36pm
Bill Poser (mail) (www):
If "Mongol" and the associated logo are trademarks and the court has seized the trademarks, then as the trademark holder the court has the authority to forbid any other party to use the mark qua mark even if it lacks personal jurisdiction because it is acting not as a court but as a trademark owner.
10.24.2008 5:42pm
SPO:
This is an obvious abuse of power by the judge. If I own a "Mongols" jacket or whatever, the government cannot simply take it from me, simply because members of my family are criminals.

How dare this judge. We are a free people, and a free people should not be subjected to this indignity--being subjected to a court order that they aren't a party to. And what would happen to a federal law enforcement officer enforcing this illegal order? Would he or she be entitled to immunity?
10.24.2008 5:43pm
spudbeach (mail):
This sort of extending the punishment from the guilty to the families of the guilty has a long history. In imperial China, a man guilty of treason would be executed, but so would his wife, children and parents, and perhaps more. An echo of this practice is found in the US constitution, article 3, where Congress is given the power to punish treason, except "no Attainder of Treason shall work Corruption of Blood". (I, at least, always interpreted that to rule out the chinese pracice above.)

All those niceties aside, this order is ridiculous. At least it should give ammunition to those fighting against the stance that intellectual property laws are not in tension with free speech.
10.24.2008 5:57pm
Edward A. Hoffman (mail):
spudbeach wrote:
At least it should give ammunition to those fighting against the stance that intellectual property laws are not in tension with free speech.
The expansive language could just as easily have been part of any other type of injunction. That this particular injunction concerned intellectual property rights is happenstance. The problem is independent of the order's subject matter.

It's worth pointing out that this was a proposed order submitted by the prosecution. The court didn't draft it. The judge should have recognized that it had no jurisdiction over family members and stricken that language, but her failure to do so does not turn the actions of an overreaching prosecutor into judicial tyranny.

Had the family members received notice of this proposed order, they would have been able to point out the problems before the judge signed off on it. That's one of the reasons notice is an essential component of due process. Judges normally can count on parties who will be unfairly affected by an order to point out the unfairness. Courts can't evaluate arguments that no one presents, though, and it may be unrealistic to expect them to see all these problems on their own. After all, one of the reasons we have lawyers is to point things like this out for the court.

By leaving family members out of the loop, the prosecutor ensured that they would not be able to speak up for themselves. This also made it much less likely that a busy judge and her staff would notice the overbroad language of the proposed order. But if the prosecutor really wants the court to have authority over additional people, he needs to formally make them parties and give them notice of what he's doing.
10.24.2008 6:10pm
Jay:
"Corruption of blood" refers not to physical punishment, but to the English practice that a conviction of a member of the aristocracy for treason stripped the title from his descendants. Obviously there were not to be hereditary titles in the U.S., but the idea was that descendants wouldn't be barred from holding public office or the like.
10.24.2008 6:11pm
Bill Poser (mail) (www):
Spudbeach,

You're right about the practice in Chinese law, but the provision in Article 3 was not aimed at the Chinese practice, of which the Framers may well not have been aware but at the much more familiar practice in English law. In English law, attainder did not result in the execution of family members. Rather, it prevented them from inheriting from or via the attainted person. For example, in 1397 Richard FitzAlan, Earl of Arundel, was tried and convicted of treason for his opposition to Richard II. He was executed and attainted, which meant that his son did not inherit his possessions or title. The attainder was reversed in 1400 and his son Thomas inherited.
10.24.2008 6:15pm
EconGrad:
SPO:
And what would happen to a federal law enforcement officer enforcing this illegal order? Would he or she be entitled to immunity?


Having read a good bit about the Mongols, I'd expect that the first time a Federal officer (or any officer) decides he's going to confiscate the "colors" of a full patch Mongol, he won't need immunity, he'll need a casket.

Extra-legal issues aside, sometimes it is tough to believe that these judges graduated law school...
10.24.2008 6:26pm
Bill Poser (mail) (www):

Having read a good bit about the Mongols, I'd expect that the first time a Federal officer (or any officer) decides he's going to confiscate the "colors" of a full patch Mongol, he won't need immunity, he'll need a casket.


Federal Marshals are nearly invincible when played by Tommy Lee Jones.
10.24.2008 6:39pm
Ken Arromdee:
then as the trademark holder the court has the authority to forbid any other party to use the mark qua mark even if it lacks personal jurisdiction because it is acting not as a court but as a trademark owner.

Under exhaustion of rights, that seems like it would only apply to creating new items with the trademark on them, not to items with the trademark that the family already has.
10.24.2008 6:57pm
Jake90024 (mail):
I'm an attorney who obtains injunctions (and enforces them) in civil cases for the federal government. An injunction is binding on a nonparty only if the nonparty has actual notice of the order and either (1) is the alter ego of, or has an identity of interest with, a party, or (2) aids and abets a party's violation of the order. See Peterson v. Highland Music, Inc., 140 F.3d 1313, 1323-24 (9th Cir. 1998); Reliance Insurance Co. v. Mast Construction Co., 84 F.3d 372, 376-77 (10th Cir. 1996); Gemco Latinoamerica, Inc. v. Seiko Time Corp., 61 F.3d 94, 98-99 (1st Cir. 1995).
10.24.2008 7:11pm
Bill Poser (mail) (www):

Under exhaustion of rights, that seems like it would only apply to creating new items with the trademark on them, not to items with the trademark that the family already has.


That's true insofar the as the family are ordinary purchasers of the items, but not true insofar as they are using the items with the mark to advertise their affiliation with the mark holder, no? Consider, for example, a hypothetical case in which the federal government discovers that Coca-Cola has put cocaine back into Coke and seizes Coca-Cola's trademarks as assets of a criminal enterprise and suspends licenses for use of the trademarks. Under exhaustion of rights, people who have bought licensed T-shirts saying: "I HEART Coca-Cola" are free to continue to wear them. However, the producers of such T-shirts, Coca-Cola distributors, etc. are not at liberty to use the marks. Is this not correct?
10.24.2008 8:08pm
ShelbyC:

However, the producers of such T-shirts, Coca-Cola distributors, etc. are not at liberty to use the marks. Is this not correct?



They can't use them as mark qua mark, but the individuals affiliated with the organziation can't have their cars siezed because they have an "I heart coca cola" bumber sticker.
10.24.2008 8:22pm
MLS:
Trademarks are not "property" in the sense associated with patents and copyrights. More accurately stated, they are generally classified as a part of the "goodwill" enjoyed by a product or service provider. Stated in another way, trademarks (including service marks) may not be transferred "in gross". Thus, I find it bewildering that both the DOJ and a federal court judge are treating the mark as an "asset".

Perhaps the best illustration of what happens when a trademark holder is deemed to have participated in "criminal activity" is the cancellation of Bayer's "Aspirin" trademark registrations in the US and various countries in Europe following World War I. The mark was cancelled, it was deemed to be generic, and was then made available for use by others manufacturing the chemical formulation we now commonly refer to as aspirin.

BTW, "Aspirin" remains a registered trademark of Bayer in many countries throughout the world.
10.24.2008 8:56pm
PDXLawyer (mail):
Is it possible that "family" in this context means "fellow gang members" rather than "persons related by blood, marriage or adoption"?
10.24.2008 9:49pm
Edward A. Hoffman (mail):
MLS:

Are you sure about that? I've always understood that Bayer lost the trademark on "Aspirin" because it had not enforced its rights, allowing the name to become generic. What criminal activity do you think Bayer was involved in, and how did that activity lead to revocation of its trademark?


PDXLawyer:

Not really, but even if that is what the judge had in mind my analysis would be the same. The salient fact is that the order says it applies to non-parties. Whether the parties are relatives or fellow gang members doesn't really matter. After all, the gang is not a legal entity and is not a party to the case.
10.24.2008 10:30pm
William Spieler (mail) (www):
Per Wikipedia, Bayer lost the trademark as a result of World War I. Go figure.
10.25.2008 12:35am
MLS:
Mr. Hoffman,

Mr. Speiler correctly notes that the "Aspirin" trademark was cancelled in several countries because of the role Bayer played during WWI is support of Germany. In most other countries throughout the world "Aspirin" continues to this day to be a recognized Bayer trademark.
10.25.2008 1:45am
Public_Defender (mail):

he family members who are supposedly bound by this order likely had no notice that it was being sought


You can strike the "likely." The order says the prosecutor sought it ex parte--without notice or participation to the other side. Also, the order initially had the word "proposed" above the title. That means the prosecutor almost certainly wrote the order. The judge just crossed off the word "proposed" and signed his name.

Ex parte orders sometimes are appropriate, but I see no reason why one was necessary here. The prosecutor may very well have violated attorney ethics. DOJ, court ethics officials, and state ethics officials should look into this case.
10.25.2008 6:17am
zippypinhead:
Jake90024 got it about right, above. Remember, this is a RICO forfeiture action, and the law is clear that persons "in active concert or participation" with the defendants, may be bound by the forfeiture order. Notice is required, but notice may of course be given after entry of an ex parte order (notice is effective even as late as when the authorities seize the items to be forfeited - the person in possession of the forfeited item may then protect their rights by bringing an action challenging the forfeiture post-seizure). I view the "family members" statement in the order as surplusage, just like the "agents, servants, employees" language in the same phrase - any of those persons, including family member of a defendant, found to be holding Mongol property can legally be presumed to be acting in concert with the defendant, and if not, can make its claim in a post-forfeiture challenge and petition for return of property.

Here, the order affects two categories of Mongol property: (1) the trademark; and (2) existing goods bearing the trademarked logo. The former might be conveyed to a third party for the purpose of putting the trademark beyond the reach of seizure. The latter are physical items created and used in furtherance of the racketeering enterprise, and under well-established law may be seized. At most I view this case as a bit creative on the trademark issue, but that's because the Mongols themselves got creative by trademarking their gang name in the first place.
10.25.2008 11:53am