California Appellate Archives - Good Shepherd News - Fastest Growing Religious, Free Speech & Political Content

The call that changed it all

The Truth News — Sun, 02 Nov 2025 19:58:02 +0000

The call that changed it all

On July 22, 2024, the California Supreme Court ruled in Downey v. City of Riverside (S280322) that a bystander could assert a claim for negligent infliction of emotional distress (“NIED”) for a traumatic event heard through the phone. In a unanimous 7-0 opinion, the Court held that a bystander could “witness” an accident by hearing it, even if the bystander was not physically present and was unaware of the defendant’s role in causing the victim’s injury at the time of the incident.

Plaintiff Jayde Downey (“Downey”) was on a cell phone call with her daughter, giving her driving directions. During the call, Downey allegedly heard her daughter gasp in fear and shock, followed by the sounds of an explosive metal-on-metal vehicular crash, shattering glass, and rubber tires skidding or dragging across the asphalt. As the sound of tires faded, Downey, hearing no sounds or vocalizations from her daughter, understood that her daughter was injured so seriously that she could not speak. A good Samaritan at the scene confirmed Downey’s fears when he told Downey on the phone to quiet down so he could “find a pulse.”

Downey filed suit against the adverse driver, the City of Riverside, and the owners of a private property adjacent to the intersection where the accident occurred. She alleged that the intersection and the adjacent property created an unreasonable and foreseeable risk of injury. She sought damages for the emotional distress she allegedly suffered as a result of hearing her daughter’s car crash. Downey’s claim was initially dismissed on demurrer, and the Court of Appeal affirmed the trial court’s order. Ultimately, the order was further appealed and heard by the California Supreme Court.

The call that changed it all: California Supreme Court expands standard for bystander claims of negligent emotional distress

For decades, the ruling case for NIED claims in California has been Thing v. La Chusa (1989) 48 Cal.3d 644, 668. In that case, the California Supreme Court established three elements for bystander NIED claims: (1) the victim was a close relative of the plaintiff, (2) the plaintiff was present at the event and aware that the event was causing injury, and (3) the plaintiff suffered serious emotional distress as a result.

In Downey’s case, the second element of presence was at issue. Defendants argued that Downey had no contemporaneous awareness of the purported dangerous conditions of the intersection and adjacent property. Plaintiff argued that it was unnecessary for her to show contemporaneous awareness of Defendants’ tortious conduct and the causal connection between the intersection and the accident. Rather, Plaintiff argued that auditorily sensing the incident through the phone was sufficient.

The California Supreme Court held that Downey satisfied the second element of awareness and reversed and remanded the judgment of the Court of Appeal. Justice Leondra Kruger stated, “For purposes of clearing the awareness threshold for emotional distress recovery, it is awareness of an event that is injuring the victim — not awareness of the defendant’s role in causing the injury — that matters.” Justice Kruger further clarified, “The emotional trauma that comes from witnessing such an accident exists regardless of whether the plaintiff is aware at the time of the accident of all the individuals or entities that have contributed to the accident through their conduct.”

The California Supreme Court’s ruling in Downey greatly expands the ability of bystanders to sue for NIED claims. While previously, a plaintiff needed to demonstrate a “contemporaneous awareness not only of the injury to their loved one but also of the defendant’s role in causing the injury,” Downey represents a shift of focus to the emotional impact and trauma without necessarily being present at the scene of the incident.

Here are some Supreme Court and California case law examples related to emotional distress and medical malpractice:

Ochoa v. Superior Court (1985) – This California Supreme Court case opened the door for claims of negligent infliction of emotional distress (NIED) in medical malpractice cases.
Keys v. Alta Bates (2015) – This was the first reported successful case of NIED in a medical malpractice context in California.
Thing v. La Chusa (1989) – This California case established that a plaintiff can only recover for NIED if they were present at the scene of the injury and were aware that it was causing injury to the victim.
Bird v. Saenz – In this case, the Supreme Court ruled that the plaintiffs had no viable emotional distress claims because they had no sensory perception of the surgical injury at the time it occurred.
Thing v. La Chusa (1989) 48 Cal.3d 644, 668.
Downey v. City of Riverside
Johnson v. Superior Court (Sierra Madre Community Hospital) (1981)
Bird v. Saenz (2002)
Dillon v. Legg (1968) 68 Cal.2d 728 The Dillon decision
Ochoa v. Superior Court (1985) 39 Cal.3d 159
Burgess v. Superior Court (Gupta) (1992)
Fitzgibbons v. Integrated Healthcare Holdings, Inc. – Case Law

Emotional distress can be harder to prove than physical distress because it’s not immediately visible. Some states require that emotional distress cause physical distress, while others require the patient to be in a situation where the health care professional acted negligently and could have caused serious harm.

Anti-SLAPP and Free Speech in Defamation & Emotional Distress Cases

The Truth News — Sun, 24 Aug 2025 01:02:07 +0000

https://goodshepherdmedia.net/wp-content/uploads/2022/11/Fort-Minor-Remember-the-Name.mp3

Anti-SLAPP and Free Speech in Defamation & Emotional Distress Cases

Anti-SLAPP statutes are laws intended to curb – and, often, penalize – the filing of Strategic Lawsuits Against Public Participation or a “SLAPP.” A SLAPP is a lawsuit that, on its face, attempts to impose liability on a defendant for harm arising from speech

Anti-SLAPP and Free Speech in Defamation & Emotional Distress Cases

California’s anti-SLAPP statute (Code Civ. Proc. § 425.16) provides a powerful tool to early-dismiss lawsuits targeting speech on matters of public concern. Below, we survey key published, precedential cases from the past decade (2015–2025) – with a few landmark earlier cases – in which defendants (often journalists, media outlets, or online speakers) prevailed on anti-SLAPP motions against defamation and emotional distress claims. We organize the cases by court and highlight the facts, outcomes, and legal significance, followed by overarching themes and trends.

California Supreme Court

Baral v. Schnitt, 1 Cal.5th 376 (Cal. 2016) – Anti-SLAPP procedure for mixed claims. The Court held that an anti-SLAPP motion may target specific allegations within a cause of action arising from protected speech, rather than the entire cause of action. This clarified that courts can strike the protected activity allegations (e.g. statements) while allowing any unprotected claims to proceedcasp.net

. Outcome: The defendant’s motion was ultimately granted in part, striking the allegations based on an audit report that constituted protected speech. Significance: Baral strengthened anti-SLAPP’s effectiveness by permitting partial strikes, preventing plaintiffs from evading the statute by embedding protected speech inside broader claims.
Park v. Board of Trustees of CSU, 2 Cal.5th 1057 (Cal. 2017) – Limiting scope to claims “arising from” speech. The plaintiff sued a university for discrimination after being denied tenure, and the university filed an anti-SLAPP motion because the tenure decision was communicated in a letter. The Supreme Court denied the motion, clarifying that a lawsuit must be caused by protected speech to fall under anti-SLAPP – merely communicating a decision is not enoughcasp.net

. Outcome: The anti-SLAPP motion was denied as the gravamen of the claim was discrimination, not the speech about it. Significance: Park refines prong one of the anti-SLAPP test by requiring a tight nexus between the challenged claim and the defendant’s speech. It ensures anti-SLAPP is focused on true First Amendment issues and not routine conduct.

FilmOn.com Inc. v. DoubleVerify Inc., 7 Cal.5th 133 (Cal. 2019) – “Public issue” defined in context. A website operator sued a media metrics company for disparaging reports sent to its paying clients, and the defendant invoked anti-SLAPP. The Supreme Court articulated a context-specific test for whether speech is “in connection with” a public issuecasp.net

. Outcome: It held that while the subject of the reports (online content piracy) was a public issue, the context—private subscriber reports—meant the speech did not further public debate, so anti-SLAPP protection was deniedcasp.net

. Significance: FilmOn imposes a nuanced, multi-factor inquiry into context, audience, and speaker intent in prong one. It narrowed the scope of what communications qualify as public-interest speech, focusing on whether the speech contributes to public discussioncasp.net

.
Wilson v. Cable News Network, Inc., 7 Cal.5th 871 (Cal. 2019) – Media employer’s speech vs. employment claims. A former CNN journalist sued for race discrimination and defamation after being fired. CNN’s anti-SLAPP motion was denied on the discrimination claims, and the Supreme Court agreed. It reasoned the firing was not “in furtherance” of free speech rights – the lawsuit was about unlawful discrimination, not the content of CNN’s news reportingdwt.com

. Outcome: The Court held anti-SLAPP did not apply to the non-defamation claims (wrongful termination, etc.), though the accompanying defamation claim (challenging statements about the firing) did arise from protected news commentary. Significance: Wilson (building on Park) underscores that employment or harassment claims against media companies won’t be struck simply because the employer is engaged in speech business. Only claims truly based on speech on issues of public interest (e.g. a defamatory explanation given to the public) trigger the statutedwt.com

.
Monster Energy Co. v. Schechter, 7 Cal.5th 781 (Cal. 2019) – Attorney speech and public interest. Although not a defamation case, this decision held that a lawyer’s public statements about a product liability settlement were protected petitioning speech. Outcome: The suit against the lawyer was dismissed. Significance: It highlights how anti-SLAPP protects attorneys and participants speaking about litigation in the public arena, reinforcing protections for legal advocacy in the court of public opinion.

(Major earlier Supreme Court precedents):

Gates v. Discovery Communications, Inc., 34 Cal.4th 679 (Cal. 2004) – A TV network aired a true-crime documentary about a man’s criminal past. He sued for invasion of privacy (having dropped defamation). The Court held the broadcast was newsworthy and protected by the First Amendment, making it “impossible for Gates to prevail”casp.net

. Outcome: Anti-SLAPP struck the privacy claim. Significance: Even a harmful depiction of someone’s past crimes was shielded as a matter of public interest; truthful, newsworthy publications cannot give rise to liability for emotional distress or privacy when public concern is involvedcasp.net

.
Flatley v. Mauro, 39 Cal.4th 299 (Cal. 2006) – An attorney’s pre-suit letter threatening to expose a rape allegation unless paid was deemed extortion, which is illegal conduct not protected by free speech. Outcome: The lawyer’s anti-SLAPP motion was denied under the narrow exception for speech “illegal as a matter of law.” Significance: This carved out a “narrow” exception to anti-SLAPP for egregious conduct like extortion, ensuring genuinely criminal speech cannot hide behind First Amendment protectionscasp.net

.
Navellier v. Sletten, 29 Cal.4th 82 (Cal. 2002) – Established that a defendant can invoke anti-SLAPP even if the underlying dispute wasn’t initially about free speech. Here, a counterclaim alleging fraud in the context of exercising settlement rights was struck as a SLAPPcasp.net

. Significance: The anti-SLAPP law is to be construed broadly; even claims “incidental” to expressive conduct (like signing a release or filing a lawsuit) can be protected petitioning activity.
Briggs v. Eden Council, 19 Cal.4th 1106 (Cal. 1999) – The Court’s first anti-SLAPP case, holding the statute protects “any lawsuit arising from the exercise of the right to petition or free speech” regardless of public significancecasp.net

. Significance: Confirmed the Legislature’s intent that anti-SLAPP be applied broadly to protect all manner of petitioning speech, not only speech on government matterscasp.net

.

California Courts of Appeal

Media Defendants (Journalists & News Publishers): California courts have consistently protected journalists and news outlets from defamation suits over reporting on matters of public concern – especially when the content is true or sourced from official records.

Colt v. Freedom Communications, Inc., 109 Cal.App.4th 1551 (Cal. Ct. App. 2003) – A newspaper reported on SEC accusations of stock fraud against the plaintiff, who sued for defamation. The court affirmed dismissal under anti-SLAPP: the articles plainly involved a public issue (securities enforcement) and were protected as fair and true reports of official proceedingscasp.net

. The defendant was also immune under California’s fair report privilege (Civ. Code § 47), and plaintiff offered no credible evidence of actual malicecasp.net

. Outcome: Anti-SLAPP motion granted; case dismissed. Significance: Accurate news reports on government allegations are firmly protected. The decision underscores that truth and privilege are complete defenses – if the content was based on public records and the plaintiff cannot show it’s false or published with “actual malice”, a defamation claim has no probability of prevailingcasp.net
Jackson v. Mayweather, 10 Cal.App.5th 1240 (Cal. Ct. App. 2017) – Celebrity boxer Floyd Mayweather’s ex-fiancée sued him for defamation, false light, and intentional infliction of emotional distress after he publicly posted on Facebook about her abortion and discussed her cosmetic surgeries in a radio interview. The Court of Appeal held Mayweather’s statements were made in a public forum and concerned issues of public interest – namely, a high-profile couple’s relationship and a celebrity’s imagelaw.justia.com

. It found the claims arose from protected speech and that the plaintiff failed to show a probability of prevailing. Outcome: The defamation, false light, and public-disclosure claims were stricken (the court only left intact a narrow portion of the privacy claim)law.justia.com

. Significance: Even speech about personal matters can be a public issue if it involves public figures or online discourse that the public is following. The decision acknowledged that Mayweather’s social media commentary, though deeply offensive to the plaintiff, was part of public conversation about a celebrity couple, and the plaintiff could not prove the statements false (in fact, she had undergone the procedures)law.justia.com

. This highlights that “negative but true” content – even very private facts – may be protected when the individuals are famous or the subject is newsworthy.
Daniel v. Wayans, 8 Cal.App.5th 367 (Cal. Ct. App. 2017) – Actor Marlon Wayans was sued by an extra (Pierre Daniel) for racial harassment, misappropriation, and IIED after Wayans joked on Twitter that Daniel looked like a cartoon character and even used a racial slur in a teasing manner on set. The court granted Wayans’s anti-SLAPP motion, ruling that his “allegedly harassing and offensive” tweets and remarks were protected free speech made in connection with an issue of public interestthewrap.com

. Wayans was in the midst of creating and promoting a comedy film; his on-set banter and tweet were part of his creative process and social commentary in the comedy context, which the court deemed protected expressionthewrap.com

. Outcome: The lawsuit was dismissed and Wayans recovered his attorneys’ fees. The court found that the tweet – “Tell me this n—- don’t look like…THIS n—-!!! Ol Cleveland Brown ass looking” – was protected satire and opinion, not a statement of fact, and that using the extra’s photo in a comic tweet was transformative fair usethewrap.com

It also held the conduct was not “outrageous” beyond First Amendment protection. Significance: Daniel v. Wayans illustrates that artistic and comedic expression, even if crass or insulting, can qualify as speech on a matter of public interest (here, a film and its characters) when disseminated publicly. The court emphasized the need to protect creative works and promotion of entertainment under the anti-SLAPP law, noting that holding such speech liable (absent false assertions of fact) would chill comedians and artiststhewrap.com
Cross v. Cooper, 197 Cal.App.4th 357 (Cal. Ct. App. 2011) – A resident created and distributed a flyer titled “Meet Your New Neighbor” with the photo and Megan’s Law sex-offender registry information of the plaintiff, warning the community about him. The plaintiff sued for defamation and emotional distress. The court struck the suit under the anti-SLAPP statute, finding the conduct was quintessential speech on a matter of public concern: “the strong and widespread public interest in knowing the location of registered sex offenders”caselaw.findlaw.com

. Because the flyer’s factual content about the plaintiff’s convictions was true and obtained from a public registry, he could not show a likelihood of prevailing on any defamation or IIED claim. Outcome: Anti-SLAPP granted, dismissing the lawsuit. Significance: This case confirms that republishing publicly available, truthful information – even if highly stigmatizing – is protected. Using a person’s publicly posted photo and record to alert the community was deemed lawful and protected speech about public safety. The decision reinforced that truth is an absolute defense and that the First Amendment does not permit liability for emotional distress when the underlying facts are true and concern public welfarecaselaw.findlaw.com

Online Reviews, Bloggers, and Social Media Speech: Many defamation/IIED SLAPP suits in the last decade have targeted consumer reviews or Internet posts. Courts have largely sided with defendants, recognizing online platforms as public forums and the posts as commentary on issues that can be of public interest (e.g. consumer protection, professional quality, community matters).

Wong v. Jing, 189 Cal.App.4th 1354 (Cal. Ct. App. 2010) – A Yelp review by parents criticizing a dentist’s treatment of their child led to the dentist suing for libel and emotional distress. The Court of Appeal held the review was made on a public Internet forum and concerned the quality of dental services – a matter of interest to other consumers. It ruled that six of the seven causes of action should have been stricken under the anti-SLAPP lawcasp.net

(one minor claim was remanded). Significance: Wong set an early example that outspoken consumer reviews on sites like Yelp are generally protected opinion or at least subject to anti-SLAPP. Statements about a professional’s services affect the public (prospective patients) and thus meet the public-interest requirement. Unless a reviewer’s factual assertions are provably false and made with actual malice, defamation claims will likely fail.
Chaker v. Mateo, 209 Cal.App.4th 1138 (Cal. Ct. App. 2012) – In a contentious personal dispute, a woman (and her mother) posted negative comments about her ex-boyfriend on RipoffReport and Topix, accusing him of being a fraud, a deadbeat dad, and having a shady business. The court had “little problem” finding these online postings protected by the anti-SLAPP statuteblog.ericgoldman.org

The Internet is a “classic public forum” open to billions, and the posts about Chaker’s character and business practices fell within “the rubric of consumer information” intended as a warning to others about his trustworthinessblog.ericgoldman.org

Outcome: The defamation claim was struck. The court noted that even though the dispute was personal, the content – allegations of dishonest business practices – could inform consumers and thus was an issue of public interestblog.ericgoldman.org

Significance: Chaker broadened the interpretation of “public interest” to include internet discussions blending personal grievances with consumer caution. It confirmed that online forums facilitate an exchange on everything from “great issues of war [to] the relative quality of chicken pot pies,” and that posts aiming to flag someone’s reliability in commerce qualify as speech on a matter of public concern blog.ericgoldman.org

This case is frequently cited to argue that consumer review sites and complaint boards are public fora and that criticism of a person’s business conduct is protected speech blog.ericgoldman.org
Grenier v. Taylor, 234 Cal.App.4th 471 (Cal. Ct. App. 2015) – Former parishioners accused their church pastor of wrongdoing on an internet blog, and the pastor sued for defamation and emotional distress. The court struck some claims and allowed others, illustrating the line between opinion and fact. Outcome: Allegations that could be seen as opinion or religious matters (thus non-verifiable) were protected, but one specific factual accusation was allowed to proceed since the plaintiff showed it was likely false. Significance: Grenier shows courts will parse each statement in an online post – protecting harsh opinions or rhetoric about public figures (even religious leaders) while allowing truly defamatory factual allegations (if provably false and damaging) to go forward past prong two.
Cross v. Facebook, Inc., 14 Cal.App.5th 190 (Cal. Ct. App. 2017) – After Cross v. Cooper (the Megan’s Law case above) was dismissed, the plaintiff attempted to sue Facebook for hosting the content. That suit was defeated not only by Section 230 immunity but also characterized as a SLAPP. The court noted that holding platforms liable for users’ protected posts would undermine online speech. Significance: While not a traditional anti-SLAPP merits victory (it was dismissed on immunity grounds), it underscores that plaintiffs sometimes try to circumvent anti-SLAPP wins by targeting platforms, an approach courts have rejected in favor of broad speech protections.

SLAPP back: Suits Against Malicious Litigants or Lawyers: California law permits a prevailing SLAPP defendant to sue back for malicious prosecution (sometimes called a “SLAPPback”) if the original suit was baseless and filed with malice. Several cases demonstrate this accountability:

Jay v. Mahaffey, 218 Cal.App.4th 1522 (Cal. Ct. App. 2013) – After a real estate dispute, attorney Mahaffey had added 45 limited partners (innocent third parties) as defendants in a lawsuit solely to pressure the main defendant. When that suit failed, those individuals sued Mahaffey and her firm for malicious prosecution. The defendants (the lawyers) filed anti-SLAPP motions, but the courts found the limited partners had established a prima facie case of malicious prosecution (no probable cause for the prior suit and evidence of malice) ocbar.org

. The Court of Appeal affirmed the denial of the anti-SLAPP motions, ruling that Mahaffey’s aggressive tactic of suing uninvolved parties was grounds for a malicious prosecution claim ocbar.org

. Outcome: The malicious prosecution case proceeded to trial, resulting in a judgment holding the attorney liable for roughly $400,000 in damages and fees. Significance: Jay v. Mahaffey is a cautionary tale for attorneys: those who file frivolous, harassing lawsuits can not only lose under anti-SLAPP but also face personal liability for malicious prosecution. It highlights that California courts will protect targets of SLAPPs by allowing them to seek redress against lawyers who abuse the court system. As the court noted, a plaintiff must have a legitimate cause of action – suing “clearly non-liable” parties just to exert leverage invites a malicious prosecution suit ocbar.org
Daniels v. Robbins, 182 Cal.App.4th 204 (Cal. Ct. App. 2010) – In an earlier notable case, a lawyer was sued for malicious prosecution for pursuing an underlying lawsuit that lacked merit. The court held the anti-SLAPP statute did apply (malicious prosecution suits arise from petitioning activity), but that the plaintiff had shown a probability of success (the prior case ended in his favor and without probable cause). Outcome: The anti-SLAPP motion by the attorney was denied and that denial affirmed on appeal, allowing the suit to go forward. Significance: Daniels (and later cases like Jay) establish that a well-founded malicious prosecution claim can overcome an anti-SLAPP motion – in other words, the law shields the wrongly sued, not the wrongdoer. California even has a specific provision (CCP §425.18) limiting anti-SLAPP delays in “SLAPPback” cases, reflecting the Legislature’s intent to let victims of SLAPPs seek damages.
Paiva v. Nichols, 168 Cal.App.4th 1007 (Cal. Ct. App. 2008) – Here, former defendants sued a plaintiff’s lawyers for malicious prosecution after winning a SLAPP dismissal in the underlying case. The court emphasized that anti-SLAPP protections don’t bar a malicious prosecution claim if the prior suit was ultimately resolved in defendants’ favor. Significance: It confirms that the favorable termination of a SLAPP – e.g. dismissal on the merits or via anti-SLAPP – can tee up a new claim against the instigators, incentivizing truthfulness and discouraging truly frivolous suits.

In sum, California appellate courts have routinely upheld anti-SLAPP motions for speakers ranging from newspaper publishers to Yelp reviewers, while also permitting “countersuit” remedies against those who misuse the courts. The common thread is a robust protection of speech, especially speech involving public participation, coupled with consequences for meritless litigation.

U.S. Supreme Court

Although there is no federal anti-SLAPP statute, U.S. Supreme Court First Amendment jurisprudence provides the backbone principles that often determine SLAPP outcomes. Several landmark Supreme Court cases – some recent, some decades-old – establish strong freedom-of-speech protections in defamation and IIED (intentional infliction of emotional distress) cases, which California courts in turn apply through the anti-SLAPP framework:

New York Times Co. v. Sullivan, 376 U.S. 254 (1964) – This seminal case constitutionalized defamation law. The Supreme Court held that public officials (and later, public figures) must prove “actual malice” – that a defamatory statement was made with knowing falsity or reckless disregard for truth – to recover damages supreme.justia.com

. The Court recognized that erroneous statements are inevitable in free debate and must be protected to give breathing space to the First Amendment en.wikipedia.org

. Significance: Sullivan greatly raised the plaintiff’s burden in defamation suits, especially for media defendants. It shifted the proof of falsity onto the plaintiff and shielded publishers from liability for mere negligent mistakes supreme.justia.com

. This doctrine is echoed in anti-SLAPP prong two analyses – many defamation claims against news outlets fail because the plaintiff cannot show evidence of actual malicecasp.net

. Sullivan’s legacy, as one court noted, was to give “substantial protections to defendants such as newspapers” by requiring robust proof of faultsupreme.justia.com

, thereby thwarting the vast majority of SLAPP-style defamation suits by public figures.
Hustler Magazine v. Falwell, 485 U.S. 46 (1988) – The magazine Hustler ran a parody ad depicting evangelist Jerry Falwell in a lewd, false scenario. Falwell sued for IIED (having already lost his libel claim because the parody was patently fictitious). The Supreme Court unanimously overturned the emotional-distress verdict in Falwell’s favor. It held that a public figure cannot recover for IIED based on a caricature or parody without showing the publication contained a false statement of fact made with actual malice en.wikipedia.org

. Simply put, outrageousness is not a sufficient benchmark when free speech is at stake en.wikipedia.org

. The Court warned that allowing liability for speech intended to inflict emotional harm – in the absence of any falsity – “would subject political cartoonists and other satirists to large damage awards” for doing what satirists do: exaggerating and ridiculing en.wikipedia.org

. Significance: Hustler v. Falwell extends Sullivan’s shield to emotional distress torts, protecting even speech that is intentionally caustic or offensive, so long as it does not state actual defamatory falsehoods. It cemented the principle that public figures cannot use IIED claims as an “end-run” around First Amendment safeguards for satire and opinion. This ruling is frequently invoked in SLAPP cases to defend harsh criticism and parody. For example, California courts citing Hustler have refused to find speech “outrageous” enough to lose protection unless it also includes provably false assertions of fact thewrap.com
Snyder v. Phelps, 562 U.S. 443 (2011) – In a modern echo of Falwell, the Court held that the Westboro Baptist Church’s offensive funeral picketing (with signs like “Thank God for Dead Soldiers”) was protected by the First Amendment against tort claims by the fallen soldier’s family. The speech, however hurtful, addressed matters of public concern (the nation’s morality, the military, etc.) in a public place. Therefore, it could not form the basis of liability for IIED or intrusion as a matter of law en.wikipedia.org

. The Court emphasized that speech on public issues, to which the listeners could avert their eyes, occupies “the highest rung of the hierarchy of First Amendment values”. Significance: Snyder reaffirmed that speech cannot be punished simply because it causes pain or outrage, if it is on political or social issues. Even a private plaintiff (not a public figure) could not recover for emotional distress because the defendants spoke on a public matter at a public event en.wikipedia.org

. This decision resonates in anti-SLAPP analyses: it draws a bright line that speech on public affairs – however unpleasant – is immune from tort liability for emotional harm. California courts have cited Snyder in holding that vehement online commentary or protests on public concerns are protected from IIED claims. Essentially, if speech is about a broader issue and not a targeted private harassment, Snyder instructs that the First Amendment prevails.
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) – The Supreme Court balanced the rights of private individuals and media defendants. It held that private-figure defamation plaintiffs need not prove actual malice to recover actual damages, but they must show at least negligence, and cannot recover punitive damages without actual malice. It also declared there is no constitutional value in false statements, but States cannot impose liability without fault. Significance: Gertz is reflected in California law by distinguishing public vs. private plaintiffs in anti-SLAPP prong two: a private figure may have an easier path to show probability of success (no malice requirement) unless the speech was about a public issue. But California’s anti-SLAPP still often shields defendants if the private figure cannot show the statements were false or made negligently. Moreover, if the speech is on a public matter, Gertz’s logic combined with Sullivan means even private plaintiffs often effectively need to prove malice to get presumed or punitive damages – a high hurdle in SLAPP cases casp.net

.
Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) – The Court clarified that there is no wholesale exemption for “opinion” in defamation law; rather, a statement of opinion can be actionable if it implies an assertion of objective fact. However, pure opinions or subjective critiques that “cannot reasonably be interpreted as stating actual facts” are fully protected. Significance: This principle is a staple in SLAPP defenses: defendants often argue that their allegedly defamatory remarks were non-actionable opinion or hyperbole. For example, calling someone a fraud or comparing them to a cartoon character can be defended as opinion in context thewrap.com

, especially on Internet forums where rhetorical flourish is common. California courts, following Milkovich, assess the totality of circumstances – a key factor in prong two – to decide if a statement was factual enough to be proven true/false or just opinion. If it’s the latter, the plaintiff cannot meet the burden of showing probable success.

(Additional relevant rulings): Bartnicki v. Vopper (2001) protected the publication of truthful information on a public issue even if obtained unlawfully by a third party, reinforcing that media defendants are insulated when disseminating matters of public concern. Cox Broadcasting v. Cohn (1975) and Florida Star v. B.J.F. (1989) held that publishing publicly available information (like a rape victim’s name from court records or police reports) cannot lead to liability, as the First Amendment shields the press’s right to report official public proceedings casp.net

. These cases buttress California courts’ inclination to protect the use of publicly posted content (such as social media photos or public records) in reporting or commentary. If a plaintiff voluntarily exposed information or it’s a matter of public record, any privacy or emotional distress claim will likely fail under First Amendment scrutiny, as seen in outcomes like Gates v. Discovery and Cross v. Cooper.

Federal Courts in California (Ninth Circuit & District Courts)

Federal courts in California (applying state anti-SLAPP law in diversity cases) have similarly favored defendants in defamation and related suits implicating free speech. The Ninth Circuit generally permits the use of California’s anti-SLAPP statute in federal suits (for state law claims), and several high-profile cases in the last decade underscore the trend of protecting speech:

Sarver v. Chartier, 813 F.3d 891 (9th Cir. 2016) – A U.S. Army sergeant sued the makers of the film The Hurt Locker, claiming a character was based on him and defamed him. The Ninth Circuit applied California’s anti-SLAPP law and struck the claims. It held that the film’s depiction of the Iraq War and a bomb disposal technician touched on issues of public interest – “the conduct of the Iraq War” – satisfying prong one dwt.com

. On prong two, the court found the sergeant could not show the filmmakers portrayed actual false facts about him (the film character was a composite and not named the same) or that they acted with malice. Outcome: The defamation and false-light claims were dismissed as a SLAPP. Significance: Sarver affirmed that creative works based on real events are protected by the First Amendment. The decision explicitly rejected an argument to treat the plaintiff as a private figure uniquely harmed; instead it found he was drawn into an issue of public concern (war heroism). This case is often cited for the proposition that sharing someone’s story as part of commentary on a public event is protected speech, and plaintiffs cannot claim emotional distress for how they were depicted if no provable falsity or actual malice exists dwt.com

.
Herring Networks, Inc. v. Maddow, 445 F.Supp.3d 1042 (S.D. Cal. 2020), aff’d, 8 F.4th 1148 (9th Cir. 2021) – One America News Network (OAN) sued MSNBC host Rachel Maddow for defamation after she exclaimed on-air that OAN “really literally is paid Russian propaganda.” The federal court granted Maddow’s anti-SLAPP motion and dismissed the case, finding her statement was hyperbolic opinion based on disclosed facts (an article reporting an OAN employee also worked for Sputnik, a Russian state outlet). The court ruled that “reasonable viewers would consider the contested statement to be her opinion,” not an assertion of actual fact casetext.com loeb.com

. OAN itself conceded the segment was about a matter of public interest (media and foreign influence) globalfreedomofexpression.columbia.edu

. Outcome: The defamation claim was struck and Maddow was awarded attorney’s fees. The Ninth Circuit unanimously affirmed, agreeing that no reasonable viewer would take the “paid Russian propaganda” line as a literal factual accusation, especially coming from an opinionated talk show loeb.com

. Significance: This case highlights how courts analyze context and tone in media defamation claims – a fiery political commentary on cable news was deemed protected, as it “cannot serve as the basis for a defamation claim” when understood as exaggeration or opinion loeb.com

. It also demonstrates federal courts’ willingness to apply anti-SLAPP to dispose of suits against news commentary swiftly. Maddow’s win (and the fee-shifting) reinforces the idea that defamation suits brought by public figures or corporations (here, a news network) face an uphill battle if the challenged speech is opinion based on disclosed true facts loeb.com
Makaeff v. Trump University, LLC, 715 F.3d 254 (9th Cir. 2013) – In an earlier notable case, a consumer (Makaeff) wrote online complaints accusing Trump University of fraudulent practices. Trump University sued her for defamation, and she countered with an anti-SLAPP motion. The Ninth Circuit held that Trump University, a public figure for First Amendment purposes, had to show a likelihood of proving Makaeff’s statements were made with actual malice. The court ultimately found Trump University could not meet that burden, and it dismissed the defamation suit as a SLAPP, also awarding fees casp.net

. (Later, Makaeff was permitted to dismiss her own remaining claims, as the purpose of the anti-SLAPP motion – to fend off the libel suit – was achieved.) Significance: Makaeff was significant for recognizing that large companies engaged in public controversy (here, allegations of scamming students) are treated like public figures. It also led to a certified question in California about recovery of fees when a SLAPP plaintiff voluntarily dismisses – California answered that defendants are still entitled to fees in such scenarios. This case put would-be plaintiffs on notice that suing their outspoken critics can backfire, especially when the critic is an unhappy customer speaking on a matter of public interest (consumer protection).
La Liberte v. Reid, 966 F.3d 79 (2d Cir. 2020) – (Not a California court, but involving California law and worth noting) In this case, a woman sued MSNBC host Joy Reid in New York federal court over posts accusing the plaintiff of yelling racist slurs at a public meeting. Reid tried to invoke California’s anti-SLAPP law, but the Second Circuit held California’s law conflicts with federal procedural rules and could not be applied in federal court lawreview.uchicago.edu cahill.com

. This created a circuit split (the Ninth Circuit does allow anti-SLAPP motions in federal court). Reid ultimately lost the immediate protection of anti-SLAPP, though the case was later dismissed on the merits for lack of defamation. Significance: The La Liberte saga underscores a trend: most federal courts in California (Ninth Circuit) embrace anti-SLAPP, but elsewhere its applicability varies. Despite this procedural hiccup, even in La Liberte, the core First Amendment analysis prevailed – the statements were deemed opinion or not made with malice, so Reid prevailed without the anti-SLAPP statute. This highlights that while anti-SLAPP provides procedure, the fundamental free speech principles often decide the outcome regardless.

Overall, in federal courts applying California law, we see the same pattern: when plaintiffs sue over speech on political or societal issues (even sharp-edged or unflattering speech), the courts tend to characterize the speech as opinion or public commentary and dismiss the claims early. The First Amendment’s high bar – especially for public-figure plaintiffs – is rigorously enforced. Notably, California’s mandatory fee-shifting applies in federal court too (when the motion is allowed), which can deter plaintiffs from forum-shopping to federal court to avoid anti-SLAPP.

Themes and Trends

1. Robust Protection for Speech on Public Issues: Across the board, courts prioritize free speech and press rights, especially where the content in question involves a matter of public concern. Negative commentary about public figures, consumer criticism of businesses, reports on crime or misconduct, and even caustic jokes all receive broad protection. As the U.S. Supreme Court put it, “speech on a matter of public concern…cannot be banned simply because it is offensive” en.wikipedia.org

. California decisions echo this – if the speech even arguably contributes to public debate or informs others (from community safety in Cross, to war and politics in Sarver, to consumer vigilance in Chaker), the anti-SLAPP statute’s first prong is usually satisfied. This has shielded journalists, activists, bloggers, and ordinary citizens who speak out. The flip side is that truly private disputes not tied to any broader interest (for example, purely personal gripes unconnected to any public issue) are less likely to get anti-SLAPP protection dwt.com, ensuring the law targets genuine SLAPPs and not garden-variety private squabbles.

2. Truth and Opinion as Impenetrable Defenses: A recurring theme is that truthful speech or non-actionable opinion cannot form the basis of liability – a cornerstone of First Amendment jurisprudence reinforced through anti-SLAPP. Many of these cases involve defendants stating uncomfortable truths or opinions: e.g., stating someone has a criminal record (Cross), or giving a scathing opinion on a service (Wong, Chaker). If the plaintiff cannot show the statement is false (or cannot overcome a privilege like fair report), the claim will be stricken casp.net

. In Colt v. Freedom Comm., the media defendant prevailed because the reporting was privileged and no malice was shown casp.net

. In Herring Networks v. Maddow, the court found the challenged remark was figurative opinion, not a literal assertion, and thus not provably false loeb.com

. Over and over, courts emphasize that it’s the plaintiff’s burden to demonstrate a probability of proving falsity and fault at an early stage – a burden most cannot meet absent clear fabrication. Consequently, “negative but true” content is generally safe from defamation liability. Even “mostly true” or substantially true content will doom a plaintiff’s case. And pure opinion or obvious exaggeration (like parody or epithets) is protected as well, since it cannot be interpreted as stating actual facts loeb.com

. The result is a bulwark against lawsuits that seek to punish speakers for merely sharing true information or subjective views.

3. Public Forum and Social Media – New Platforms, Same Protection: The rise of the Internet and social media in the last decade appears frequently in these cases, and courts treat online speech with the same seriousness as traditional journalism. California courts have explicitly recognized the Internet as a vast public forum open to “literally billions” blog.ericgoldman.org

, and thus online posts are often considered speech in a public forum concerning public interest (CCP § 425.16(e)(3)). Whether it’s a Yelp review, a Ripoff Report complaint, a Facebook post, or a tweet, the medium does not diminish the speaker’s rights. Chaker v. Mateo was a trailblazer in 2012, ruling that posts on consumer gripe sites about someone’s business practices were in the public interest because they serve as warnings to other consumers blog.ericgoldman.org

. In Jackson v. Mayweather, social media was the vehicle for a celebrity’s personal revelations, and the court still found a public interest due to the public figure status and widespread audience law.justia.com

. Thus, one trend is the normalization of social media discourse as fully protected participation in public debate. We also see that using content from social media or publicly posted photos can be protected: e.g., Wayans using an image of the plaintiff next to a cartoon was deemed transformative fair use in satire thewrap.com

; journalists using photos from a public Facebook profile for a news story would likewise be shielded as long as the story is newsworthy (consistent with Gates and U.S. Supreme Court precedents on public information). In short, online speech is not treated as second-class – courts apply the same First Amendment standards regardless of platform, often to the benefit of online reviewers and commentators facing SLAPPs.

4. Anti-SLAPP’s Expansion and Limitations: Procedurally, the anti-SLAPP law in California has been interpreted expansively in some ways (broad coverage of speech activities) but also subject to careful limits. The California Supreme Court has in recent years fine-tuned the doctrine: Baral allows filtering out unprotected claims early, preventing artful pleading; Park and Wilson ensure that claims not truly based on speech (like discrimination or ordinary business disputes) aren’t struck, preventing overreach dwt.com

. Meanwhile, the Legislature added exceptions (like §425.17 for purely commercial speech and §425.18 for SLAPPbacks) to curb misuse. Overall, the trend is that courts celebrate the statute’s role in protecting core free speech (especially in media and political contexts), but remain vigilant that it not sandbag legitimate lawsuits that only incidentally involve speech. The federal courts’ split (highlighted by La Liberte v. Reid) is an example of this dialectic – some see anti-SLAPP as procedural and hesitate to apply it federally. In the Ninth Circuit, however, it is fully embraced, and the trend there is extending anti-SLAPP to as many scenarios as possible in service of First Amendment interests (as evidenced by cases like Maddow and Trump Univ.).

5. Fee Shifting and Deterrence of SLAPPs: A crucial aspect of California’s anti-SLAPP scheme evident from these cases is the fee-shifting provision – a successful movant gets their attorney’s fees. We saw this in virtually every successful case: CNN and others recouped fees from plaintiffs, Maddow got fees from OAN, etc. For example, in Briggs v. Eden Council, the defendants ultimately recovered over $425,000 in fees after defeating the SLAPP casp.net

. In Rosenthal (an earlier case involving an Internet repost, referenced in CASP materials), a defendant even obtained $434,000 in fees after winning on Section 230 grounds in an anti-SLAPP context casp.net

. This fee mechanism deters plaintiffs (and their lawyers) from filing weak defamation or IIED claims merely to intimidate. Moreover, the advent of malicious prosecution “SLAPPback” suits (as in Jay v. Mahaffey and Soukup v. Hafif) ups the stakes: a SLAPP filer might not only pay fees but also damages for harm caused. The specter of having to pay the defendant’s costs – and possibly face a counter lawsuit – is intended to chill the initiation of SLAPP suits, not the participation in public debate. The cases show this policy in action: the Wayans case ended with the plaintiff owing fees for a frivolous claim about a joke, and in Mayweather, the celebrity likely recovered fees for the portions he won. Themes of accountability run parallel to themes of protection.

6. Freedom of the Press and Press-Like Speakers: Many of these decisions, especially in the last decade, reinforce traditional press freedoms but also extend them to non-traditional speakers. Courts frequently cite First Amendment ideals – e.g., the Hustler court’s paean to the “free flow of ideas and opinions on matters of public interest” en.wikipedia.org

– and they do not distinguish between a professional news outlet and an individual blogger or social media user when the content is comparable. A Yelp reviewer or a Facebook poster receives the same protection for commentary as a newspaper does for an investigative report. By the same token, anti-SLAPP protections have been invoked by large media companies and celebrities (leading some to argue the law meant for the “little guy” is now also a tool for powerful speakers thewrap.com

). Still, courts apply the statute neutrally: what matters is whether the subject of the speech is of public significance and whether the nature of the speech is protected, not the identity or size of the speaker. So while Murphy or CNN can use anti-SLAPP against a meritless suit, so can an average citizen blogger. The trend is a democratization of press rights – essentially recognizing that in the Internet age, anyone can be a publisher deserving of anti-SLAPP protection when they speak out on public matters.

In conclusion, the past ten years of California defamation and emotional distress litigation – viewed through published anti-SLAPP decisions – reveal a judicial system steadfast in shielding free expression. Defendants have successfully deployed anti-SLAPP motions to fend off lawsuits arising from negative but truthful reviews, critical news reports, online comments using publicly-sourced information, and even sharp-tongued humor. The First Amendment values of truth-seeking, debate on public issues, and tolerance for criticism consistently prevail in these cases en.wikipedia.org

. At the same time, those who misuse litigation as a weapon of censorship or retaliation increasingly face financial consequences. The collective message of these cases is clear: California’s courts strongly favor open and candid discourse on matters of public interest, and they will not allow the civil justice system to become a tool to silence speech. This is in keeping with the highest ideals articulated by the U.S. Supreme Court – that we must protect even unpleasant speech to ensure “uninhibited, robust, and wide-open” debate – and it is given practical effect by the anti-SLAPP law in California’s courtrooms.

Sources:

Baral v. Schnitt, 1 Cal.5th 376 (Cal. 2016) casp.net
Park v. Bd. of Trustees of CSU, 2 Cal.5th 1057 (Cal. 2017) casp.net
FilmOn.com Inc. v. DoubleVerify Inc., 7 Cal.5th 133 (Cal. 2019) casp.net
Wilson v. Cable News Network, Inc., 7 Cal.5th 871 (Cal. 2019) dwt.com
Briggs v. Eden Council, 19 Cal.4th 1106 (Cal. 1999) casp.net
Gates v. Discovery Comm’cns, Inc., 34 Cal.4th 679 (Cal. 2004) casp.net
Flatley v. Mauro, 39 Cal.4th 299 (Cal. 2006) casp.net
Colt v. Freedom Comm’cns, Inc., 109 Cal.App.4th 1551 (Cal. Ct. App. 2003) casp.net
Jackson v. Mayweather, 10 Cal.App.5th 1240 (Cal. Ct. App. 2017) law.justia.com
Daniel v. Wayans, 8 Cal.App.5th 367 (Cal. Ct. App. 2017) thewrap.com
Cross v. Cooper, 197 Cal.App.4th 357 (Cal. Ct. App. 2011) caselaw.findlaw.com
Wong v. Jing, 189 Cal.App.4th 1354 (Cal. Ct. App. 2010) casp.net
Chaker v. Mateo, 209 Cal.App.4th 1138 (Cal. Ct. App. 2012) blog.ericgoldman.org
Jay v. Mahaffey, 218 Cal.App.4th 1522 (Cal. Ct. App. 2013) ocbar.org
Rosenthal v. Great W. Fin. Securities Corp., 14 Cal.4th 394 (Cal. 1996) (Section 230 immunity in anti-SLAPP context) casp.net
Soukup v. Hafif, 39 Cal.4th 260 (Cal. 2006) (SLAPPback malicious prosecution allowed) casp.net
New York Times Co. v. Sullivan, 376 U.S. 254 (1964) supreme.justia.com
Hustler Magazine v. Falwell, 485 U.S. 46 (1988) en.wikipedia.org
Snyder v. Phelps, 562 U.S. 443 (2011) en.wikipedia.org en.wikipedia.org
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) casp.net
Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) Sarver v. Chartier, 813 F.3d 891 (9th Cir. 2016) dwt.com
Herring Networks, Inc. v. Maddow, 445 F.Supp.3d 1042 (S.D. Cal. 2020), aff’d, 8 F.4th 1148 (9th Cir. 2021) loeb.com
Makaeff v. Trump Univ., 715 F.3d 254 (9th Cir. 2013) casp.net
La Liberte v. Reid, 966 F.3d 79 (2d Cir. 2020) lawreview.uchicago.edu
The Wrap – Susan Seager, Hollywood’s Dirty Little Secret to Beat Defamation Lawsuits (Mar. 3, 2017) thewrap.com
Eric Goldman, Ripoff Report…Protected – Chaker v. Mateo (Oct. 8, 2012) blog.ericgoldman.org
Gibson Dunn Client Alert, Recent Developments in CA Anti-SLAPP (July 19, 2021) gibsondunn.com
Loeb & Loeb report on Maddow case (May 22, 2020) loeb.com

California Supreme Court Cases

Wilcox v. Superior Court (1994) 27 Cal.App.4th 809
- Early anti-SLAPP case establishing that defendants can strike meritless suits targeting free speech on public issues.
Navellier v. Sletten (2002) 29 Cal.4th 82
- Held that anti-SLAPP applies even if the lawsuit includes both protected and non-protected activity, requiring plaintiffs to show minimal merit for claims to survive.
Baral v. Schnitt (2016) 1 Cal.5th 376
- Clarified that anti-SLAPP motions can target specific claims within a lawsuit, not just entire causes of action.
FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133
- Applied anti-SLAPP to commercial speech, emphasizing the statute’s broad protection for speech in the public interest.

California Appellate Court Cases

Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260
- Anti-SLAPP applied to dismiss defamation claims against attorneys, reinforcing protections for litigation-related speech.
Wong v. Jing (2010) 189 Cal.App.4th 1354
- Upheld emotional distress damages in a defamation case but dismissed under anti-SLAPP due to lack of evidence of actual malice.
Aguilar v. Hutton (2005) 125 Cal.App.4th 1110
- Discussed emotional distress as damages in defamation, requiring clear evidence of harm for claims to survive anti-SLAPP.

Federal District Courts (California)

Makaeff v. Trump University LLC (N.D. Cal. 2013)
- Applied California’s anti-SLAPP statute in federal court, dismissing defamation claims against a consumer review platform.
Hilton v. Hallmark Cards (9th Cir. 2010) 599 F.3d 894
- 9th Circuit precedent allowing anti-SLAPP motions in federal courts, influencing district courts in California to apply state anti-SLAPP standards.

U.S. Supreme Court Cases

New York Times Co. v. Sullivan (1964) 376 U.S. 254
- Established “actual malice” standard for defamation of public officials, foundational for media defense.
Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323
- Ruled that private figures must prove negligence (not actual malice) but cannot recover punitive damages without showing malice.
Harte-Hanks Communications v. Connaughton (1989) 491 U.S. 657
- Reinforced that reckless disregard for truth satisfies actual malice, critical in defamation suits against media.

Key Themes

Anti-SLAPP: California courts robustly apply anti-SLAPP to dismiss defamation suits against journalists unless plaintiffs demonstrate minimal merit.
Emotional Distress: Often tied to defamation claims but requires specific proof of harm; anti-SLAPP may dismiss claims lacking evidence of malice.
Federal vs. State: Federal courts in the 9th Circuit (including California districts) may apply anti-SLAPP, guided by constitutional standards from SCOTUS.

This framework highlights the interplay between state protections (anti-SLAPP) and federal constitutional standards (actual malice) in defending press freedom.

Here’s a targeted analysis of cases addressing truthful but negative reviews, use of public social media content, and creative aggregation of photos/videos, with a focus on anti-SLAPP, defamation, and emotional distress claims in the jurisdictions you specified:

1. Truthful Negative Reviews & Anti-SLAPP Protections

Key Cases:

Yelp Inc. v. Hassell Law Group (2018) 247 Cal.App.4th 1156 (California Appellate Court)
- Issue: A law firm sued Yelp to remove negative but truthful reviews.
- Holding: Anti-SLAPP protected Yelp and the reviewers because truthful criticism on matters of public interest (legal services) is protected speech. Emotional distress claims tied to truthful reviews were dismissed.
Glassdoor, Inc. v. Superior Court (2017) 9 Cal.App.5th 623
- Issue: An employer sought to unmask anonymous employees who posted critical but truthful reviews.
- Holding: Anti-SLAPP barred disclosure of identities; truthful reviews on workplace conditions are protected under the First Amendment and California law.
Matin v. AOL Inc. (N.D. Cal. 2016) 2016 WL 5807456
- Issue: A doctor sued over negative reviews that were factually accurate.
- Holding: Anti-SLAPP applied in federal court; truthful statements cannot support defamation or emotional distress claims, even if harmful.

2. Use of Public Social Media Content

Key Cases:

Perfect 10, Inc. v. Amazon.com, Inc. (9th Cir. 2007) 508 F.3d 1146
- Issue: Use of publicly posted images (thumbnails) by Google.
- Holding: Transformative use of public content (e.g., search engines) is fair use under copyright law. Applied to aggregation of social media content.
HiQ Labs, Inc. v. LinkedIn Corp. (9th Cir. 2019) 938 F.3d 985
- Issue: Scraping public LinkedIn profiles for data analytics.
- Holding: Publicly available social media data is not protected by privacy laws; its use is permissible under the Computer Fraud and Abuse Act (CFAA).
- Note: While not a defamation case, it reinforces that public posts are fair game for repurposing.
Garcia v. Google, Inc. (9th Cir. 2014) 786 F.3d 733
- Issue: Use of a publicly posted performance in a video.
- Holding: Limited copyright protection for social media content unless it meets originality standards. Creators can use public content if it’s transformative.

3. Emotional Distress Claims & Truthful Speech

Key Cases:

Snyder v. Phelps (2011) 562 U.S. 443 (U.S. Supreme Court)
- Issue: Emotional distress claims against protesters for offensive but truthful speech.
- Holding: Truthful speech on public issues is protected, even if it inflicts emotional harm. Applied to media/journalists using truthful criticism.
Florida Star v. B.J.F. (1989) 491 U.S. 524
- Issue: Publication of a rape victim’s name (truthfully obtained from public records).
- Holding: Truthful information lawfully obtained is protected; emotional distress claims cannot override First Amendment rights.
Yeager v. Bowlin (9th Cir. 2012) 693 F.3d 1076
- Issue: Emotional distress claims over truthful reporting of criminal history.
- Holding: Anti-SLAPP dismissed the suit; truthful reporting is not “outrageous conduct,” even if distressing.

4. Creative Use of Public Social Media Content

Key Cases:

Lenz v. Universal Music Corp. (9th Cir. 2015) 801 F.3d 1126
- Issue: Use of a YouTube video (including public content) for commentary.
- Holding: Fair use protects transformative creations (e.g., parody, criticism) using public material.
Bouchat v. Baltimore Ravens (4th Cir. 2011) 619 F.3d 301
- Issue: Use of copyrighted logos in historical videos.
- Holding: Creative reuse of public content (even copyrighted) in transformative works is fair use.
- Note: While not a California case, it informs federal courts’ approach to social media content reuse.
CrossFit, Inc. v. National Strength and Conditioning Ass’n (S.D. Cal. 2018) 2018 WL 5622281
- Issue: Use of public social media posts in a critical documentary.
- Holding: Anti-SLAPP protected the filmmakers; truthful compilation of public posts for commentary is protected speech.

Key Takeaways:

Truthful Criticism: Courts consistently protect negative reviews/posts if factual, even if emotionally harmful (anti-SLAPP dismisses claims).
Public Social Media Content:
- No expectation of privacy or copyright control over public posts (fair use applies to transformative works).
- Anti-SLAPP protects aggregation/repurposing for commentary (e.g., documentaries, reviews).
Emotional Distress: Claims fail unless the defendant’s conduct is independently wrongful (e.g., harassment), not just truthful speech.

Anti Slapp Law Resources:

Anti-SLAPP Law in California

Anti-SLAPP and Free Speech in Defamation & Emotional Distress Cases

Attorney Liability for Meritless Litigation Leading to Harm

Court tosses disbarred lawyer’s suit over newspaper article

California Supreme Court Confirms that the “anti-SLAPP” Statute Applies to Claims of Discrimination and Retaliation

Anti-SLAPP Law Cases – Case Law Summaries & Citings

Free Speech, the First Amendment, and Social Media

How Anti-SLAPP Laws Protect Your Right to Free Speech

Code of Civil Procedure – Section 425.16 California’s Anti-SLAPP Law

Attorney Liability for Meritless Litigation Leading to Harm

The Truth News — Wed, 20 Aug 2025 06:07:05 +0000

https://goodshepherdmedia.net/wp-content/uploads/2022/11/Fort-Minor-Remember-the-Name.mp3

Attorney Liability for Meritless Litigation Leading to Harm

Attorneys can face liability for initiating or continuing meritless litigation that causes harm, potentially facing sanctions like fines, professional discipline, or being held liable for the opposing party’s costs and fees.

Sanctions and Liability for Frivolous Litigation:

Frivolous Litigation Defined:

Meritless litigation, also known as frivolous litigation, involves lawsuits or arguments that lack a reasonable basis in law or fact, or are brought primarily to harass, delay, or cause unnecessary costs.
Attorney’s Duty:

Attorneys have a professional and ethical obligation to not pursue claims or defenses without a reasonable basis in law or fact.
Consequences for Attorneys:
Monetary Sanctions:Courts can impose fines or require attorneys to pay the opposing party’s costs and attorney’s fees.

Professional Discipline:Engaging in frivolous litigation can lead to disciplinary action from the bar, such as reprimands, suspensions, or even disbarment.

Liability for Costs and Fees:Attorneys can be held personally liable for the “excess costs, expenses, and attorneys’ fees reasonably incurred” by the opposing party due to their misconduct.

Attorney Liability for Meritless Litigation Leading to Harm

Attorneys have been held accountable in certain cases for pursuing frivolous or meritless lawsuits that cause harm – whether financial, emotional, or even physical (e.g. stress-related medical injuries). In California, this usually falls under legal malpractice (if a client sues their own attorney for negligence) or the tort of malicious prosecution (if a wrongfully sued party sues the attorney for bringing a baseless case). Below are key legal precedents, rulings, and principles from California courts and the U.S. Supreme Court on this issue, including case names, reasoning, and outcomes.

In California, there have been legal cases where stress induced by one person led to another person suffering a stroke, resulting in lawsuits. Notably:

Keillor v. County of Sacramento: In this case, the plaintiff, Tracie Keillor, experienced significant work-related stress, which allegedly led to atrial fibrillation and subsequently a stroke. She pursued a civil lawsuit against her employer, the County of Sacramento, claiming that the stress from her employment caused her stroke. The jury found in her favor, determining that her stroke was indeed caused by the stress related to her job. This verdict was later used in her workers’ compensation claim, where the principle of collateral estoppel prevented the employer from contesting the industrial causation of her stroke, as it had been conclusively determined in the prior civil proceeding. dir.ca.gov
Mills v. State Compensation Insurance Fund: Rebecca Mills, employed as a claims adjuster, suffered a cerebrovascular accident (stroke) after experiencing increased stress at work due to deadlines, mandatory training, and an increased caseload. Her primary care physician, Dr. Kamrath, noted that the stress she experienced at work was a contributing factor to her stroke. The Workers’ Compensation Appeals Board considered this medical opinion, among others, in determining the compensability of her claim. dir.ca.gov

These cases illustrate that in California, if an individual suffers a stroke due to stress induced by another person, such as an employer or supervisor, they may have legal grounds to pursue compensation, either through civil litigation or workers’ compensation claims.

Legal Malpractice for Frivolous or Unwinnable Cases (Attorney-Client)

Dawson v. Toledano (Cal. Ct. App. 2003) – A client (who was actually a lawyer himself) was sanctioned for a frivolous appeal and then sued his appellate attorney for legal malpractice, arguing the filing of a frivolous appeal was malpractice per se. The California Court of Appeal reversed a summary judgment that had favored the client. The court held that an attorney’s pursuit of a case later deemed frivolous is not automatically malpractice – the mere fact a claim was adjudged frivolous “does not per se indicate that the attorney committed malpractice”casetext.com

. In other words, there is no automatic negligence simply because a court labeled the case meritless. The client must still prove the attorney breached the standard of care (for example, by advising or pursuing a claim that no competent lawyer would have pursued) and that this caused the client harm. In Dawson, the outcome was that the attorney was not found negligent as a matter of law; the case was sent back for further proceedings because the trial court had wrongly treated the frivolousness finding as conclusive proof of malpracticecasetext.com

Legal Principle – Duty of Competence and Advising on Merits: California attorneys have a duty to competently advise clients and not pursue claims that lack any legal or factual basis. However, courts also recognize that attorneys are allowed to pursue novel or aggressive arguments in good faith. The California Supreme Court in In re Marriage of Flaherty noted that counsel have a right to present issues that are arguably correct, even if unlikely to succeed, without fear of malpractice liability or sanctions, to avoid a chilling effect on advocacyminyardmorris.com

. Thus, bringing a weak case isn’t automatically negligence – it must be shown that no reasonable attorney would have thought the claim tenable, which is the same standard used in malicious prosecutionocbar.org

. If an attorney affirmatively misleads a client about the merits or ignores clear signs that a case is groundless, that could breach the duty of care. But California courts require a case-by-case analysis rather than a per se rule of negligence for every lost or sanctionable case.

Consequences for Clients: If an attorney’s negligence in pursuing a baseless case causes direct harm to the client – such as the client incurring hefty sanctions, attorney fee awards to the opponent, or other losses – the client may recover those losses in a malpractice action. For example, if a lawyer unreasonably advises a client to file a meritless lawsuit and the client ends up owing the opponent’s legal fees or suffers severe emotional distress from the ordeal, those damages could potentially be claimed. However, proving causation can be tricky; the client must show that but for the attorney’s poor advice or conduct, they would not have pursued the harmful litigation. (Notably, if the underlying case was unwinnable to begin with, a client might have trouble proving damages, since a competent attorney would have refused the case and the client wouldn’t have won anything anyway.) The bottom line is that California law does allow clients to sue attorneys for negligently initiating or continuing meritless cases, but success requires meeting the standard elements of malpractice (duty, breach, causation, damage) and is not automatic simply because the case was lost or labeled frivolouscasetext.com

Malicious Prosecution Suits Against Attorneys (By Adverse Parties)

When an attorney brings a meritless lawsuit against someone (on behalf of a client) with malice and without probable cause, the attorney can be sued by the former defendant for malicious prosecution. California courts have established important precedents on holding attorneys liable in these cases:

Bertero v. National General Corp. (Cal. Supreme Ct. 1974) – This landmark case recognized that a person maliciously sued without probable cause can recover compensatory damages for all harm proximately caused, including legal expenses, loss of reputation, and mental or emotional distresslaw.justia.com

. In Bertero, a corporation had filed a cross-complaint against Bertero with no basis, and after Bertero prevailed, he sued for malicious prosecution. The California Supreme Court upheld a verdict in Bertero’s favor, emphasizing that the tort of malicious prosecution exists to compensate victims of baseless litigation and to deter abuse of the judicial systemlaw.justia.com

. Outcome: Bertero won significant damages, and the court affirmed that emotional distress (such as anxiety, stress) caused by being sued is a recoverable harmlaw.justia.com

. This establishes that if being embroiled in a baseless lawsuit causes someone health problems (e.g. stress-induced illness), those are legitimate damages in a malicious prosecution claim.

Crowley v. Katleman (Cal. Supreme Ct. 1994) – The court held that a malicious prosecution action can be maintained even if only part of the prior lawsuit was frivolous. In this case, an estate executor (Crowley) was subjected to a will contest with multiple grounds; he alleged that at least one of the grounds was brought without probable cause and maliciously by the opposing party and her attorneyslaw.justia.com

. The defense argued that because other grounds of the will contest had arguable merit, the attorneys shouldn’t be liable. The California Supreme Court disagreed, reaffirming Bertero and ruling that “it is not necessary that the whole proceeding be utterly groundless” – a malicious prosecution claim can be based on any claims that were filed in bad faith without probable cause, even if coupled with others that had meritlaw.justia.com

. This prevents attorneys from escaping liability simply by including one plausible claim alongside meritless ones. Outcome: Crowley was allowed to pursue malicious prosecution against the attorneys for the groundless portions of the case.

Zamos v. Stroud (Cal. Supreme Ct. 2004) – This case extended attorney liability to situations where the lawsuit might have been initially filed with some basis, but the attorney continued litigating after discovering the case was meritless. The California Supreme Court explicitly held that an attorney “may be held liable for malicious prosecution for continuing to prosecute a lawsuit discovered to lack probable cause”

scocal.stanford.edu

. In Zamos, an attorney had evidence partway through the case that his client’s fraud claims were unfounded, yet he kept pursuing the lawsuit. The court reasoned that once an attorney knows a claim has no probable cause, they have a duty to discontinue it; failing to do so, and prolonging baseless litigation, can meet the malice and lack-of-probable-cause elements for malicious prosecutionscocal.stanford.edu

. Outcome: The ruling made it clear that attorneys can be sued if they learn of a case’s lack of merit and do not stop – reinforcing that an attorney’s ongoing conduct in litigation is subject to scrutiny, not just the initial filing.

Sheldon Appel Co. v. Albert & Oliker (Cal. Supreme Ct. 1989) – In malicious prosecution cases, the court in Sheldon Appel defined the “probable cause” standard and assigned its determination to judges (not juries). The court held that probable cause is judged by an objective standard of whether “any reasonable attorney would have thought the claim tenable” given the facts and lawocbar.org

. If any reasonable lawyer could have seen the claim as arguably valid, then there was probable cause and no malicious prosecution liability, even if the claim ultimately fails. This protective threshold is one reason malicious prosecution is considered a disfavored action – it’s reserved for truly baseless lawsuits. In practice, Sheldon Appel makes clear that to hold an attorney liable, the prior case must have lacked even a tenable argument for any claim, reinforcing that malicious prosecution requires a clear absence of merit (objective lack of probable cause) and malice. Outcome: In Sheldon Appel itself, the court found the underlying lawsuit was objectively tenable, so the malicious prosecution claim failed. This case is often cited by later decisions to ensure that courts strike a balance: discourage baseless suits but avoid punishing lawyers for reasonable (if aggressive) advocacyocbar.org

Key Legal Principles: An attorney who brings a frivolous case can be held liable for malicious prosecution if the plaintiff proves (1) the prior case terminated in the plaintiff’s favor, (2) it was brought without probable cause, and (3) it was initiated with malice

law.justia.com

. California explicitly allows suing attorneys for this – they are not immune from malicious prosecution suits. Courts have noted this tort is “disfavored” (to avoid a chilling effect on legitimate claims), but as the California Supreme Court stated, calling it disfavored is just a cautionary phrase and “should not be employed to defeat a legitimate cause of action”jpands.org

. In sum, while the bar is high, California precedent holds attorneys accountable if they abuse the courts by pursuing meritless claims with improper motives.

Sanctions, Ethical Duties, and U.S. Supreme Court Perspectives

Apart from civil liability, attorneys face ethical and procedural sanctions for meritless filings. Both California and federal courts have mechanisms to penalize frivolous litigation, reflecting the legal principle that lawyers must act in good faith and with at least a plausible basis in law and fact:

California Ethics Rule & Sanctions: California’s Rule of Professional Conduct 3.1 prohibits lawyers from asserting positions in court “without probable cause and for the purpose of harassing or causing unnecessary delay or expense.” California Code of Civil Procedure §§ 128.5 and 128.7 (similar to Federal Rule 11) allow judges to impose monetary sanctions (fines, or orders to pay the other side’s attorney fees) on attorneys who file actions or motions that are completely without merit or filed for an improper purposecodes.findlaw.com calbar.ca.gov

. For example, in In re Marriage of Flaherty (Cal. 1982), the state supreme court defined a frivolous appeal as one prosecuted for an improper motive or so lacking in merit that any reasonable attorney would agree it’s totally untenable. While these sanctions don’t directly compensate the injured party for stress or medical harm, they serve as deterrents and official rebukes of the attorney’s misconduct.

Chambers v. NASCO, Inc. (U.S. Supreme Ct. 1991) – The U.S. Supreme Court upheld a trial court’s use of its inherent power to sanction a party (and effectively his attorney) for bad-faith litigation conduct. In that case, an attorney engaged in egregious tactics to delay and derail proceedings. The Supreme Court affirmed that federal courts can assess attorneys’ fees against the responsible party or counsel as a sanction for bad faith or frivolous litigation conductsupreme.justia.com

. Significance: Even at the highest level, the judiciary has authority to punish meritless litigation behavior. While Chambers was about a party’s misconduct, it underscored that attorneys who willfully abuse the judicial process can be made to bear the costs. This case illustrates a legal principle: courts can invoke inherent powers to address litigation abuses beyond normal rules, ensuring there is accountability for causing needless litigation chaos (which often correlates with stress and harm to the victims of such lawsuits).

Cooter & Gell v. Hartmarx Corp. (U.S. Supreme Ct. 1990) – This case involved Rule 11 sanctions for a frivolous antitrust lawsuit that the plaintiff voluntarily dismissed. The question was whether dropping the case insulated the attorneys from sanctions. The Supreme Court ruled that a voluntary dismissal does not erase the wrongdoing; a trial court may still impose Rule 11 sanctions for filing a baseless complaint even after the case is dismissedsupreme.justia.com

. The Court reasoned that allowing attorneys to escape sanctions by abandoning a frivolous suit would undermine the deterrent purpose of Rule 11supreme.justia.com

. Outcome: The attorneys in Cooter & Gell faced sanctions despite the case ending, reinforcing that there are professional consequences for bringing meritless cases. This precedent from the Supreme Court aligns with California’s stance that attorneys can’t just walk away from a frivolous filing to avoid responsibility.

No Absolute Immunity for Attorneys: The U.S. Supreme Court has also made clear that, unlike judges or prosecutors, ordinary attorneys generally do not enjoy absolute immunity from civil liability for litigation conduct. In Ferri v. Ackerman (1979), the Court held that a court-appointed defense attorney could be sued for legal malpractice, rejecting the idea that performing a quasi-judicial function shielded the lawyer from negligence claims. This principle implies that when an attorney’s negligence causes harm – whether by mishandling a valid case or pursuing a baseless one – the attorney may be held to account in civil court. There is no special federal protection that insulates lawyers who engage in frivolous litigation or other malpractice.
“Stress-Induced” Injuries as Damages: When a lawyer’s misconduct in litigation causes someone to suffer extreme stress or health issues, the legal system can recognize those injuries. California malicious prosecution law, as noted, permits recovery for mental and emotional distresslaw.justia.com

. Courts have acknowledged that being wrongfully sued can lead to serious consequences: Bertero cited earlier California precedent that the victim of a malicious claim “may suffer the same mental or emotional distress” as if accused of a crimelaw.justia.com

. In extreme cases, this distress can manifest physically. For example, in one out-of-state case, Beecy v. Pucciarelli (Mass. 1982), an attorney’s erroneous debt collection lawsuit caused the innocent target to suffer a stroke two days after being servedcasetext.com

. The plaintiffs in that case alleged the stress of the baseless suit led to the stroke and permanent disabilitiescasetext.com

. (The Massachusetts court ultimately dismissed their claims on legal grounds, noting the strict requirements for malicious prosecution and the litigation privilegecasetext.com

, but the facts illustrate the real-world medical harm that frivolous litigation can inflict.) In California, if similar facts arose, the stroke and related suffering would be elements of damage in a malicious prosecution or negligence claim against the attorney. The key is proving causation and that the attorney’s actions were wrongful under the law (malicious or negligent). When those elements are met, courts do compensate for severe emotional distress and resultant health issues caused by an attorney’s misconduct in bringing meritless cases

Summary of Key Findings

Attorneys Owing Duty of Care: Attorneys have a duty to exercise reasonable judgment about what claims to pursue. Bringing a completely meritless case can breach this duty to a client, but California does not impose automatic malpractice liability just because a case was unsuccessful or sanctioned – the context and attorney’s decision-making are examined (as in Dawson v. Toledano where frivolous litigation wasn’t per se malpractice)casetext.com

Malicious Prosecution Liability: An attorney can be held liable by the opposing party if they pursued a civil case without probable cause and with malice. California Supreme Court cases like Bertero and Crowley established this, allowing recovery for all damages including attorney fees spent defending the bogus case and emotional distresslaw.justia.com

. Even if part of a lawsuit had merit, the attorney may be liable for the portions that were baseless (Crowley). And under Zamos, liability extends to continuing a lawsuit after it becomes clear it lacks meritscocal.stanford.edu

Probable Cause Standard: The threshold for suing an attorney for a frivolous case is high – courts use an objective test (from Sheldon Appel) asking if any reasonable attorney could have thought the claim was arguableocbar.org

. This protects attorneys from hindsight second-guessing, ensuring only truly groundless actions lead to liability. Sheldon Appel and subsequent cases also emphasize that judges, not juries, decide if probable cause existed, acting as gatekeepers to prevent a flood of retaliatory suits.

Damages and Medical Injury: If an attorney is found liable (either for malpractice or malicious prosecution), the damages can include compensation for stress-induced illnesses. California precedent (e.g. Bertero) confirms that mental anguish and resulting health problems caused by being dragged into baseless litigation are compensablelaw.justia.com

. Thus, a negligence or malicious prosecution verdict against an attorney could cover medical bills and pain and suffering for a stroke or other stress-related injury, so long as the lawsuit’s wrongfulness is the proximate cause.

Sanctions and Deterrence: Both California and federal courts impose sanctions to curb frivolous filings. The U.S. Supreme Court in Cooter & Gell and Chambers v. NASCO affirmed that attorneys can be fined or ordered to pay the other side’s fees for bad-faith litigation conductsupreme.justia.com

. These rulings underscore a broader legal principle: misusing the courts has consequences, and an attorney’s professional license is no shield against discipline or liability when they negligently or intentionally pursue meritless cases that harm others.

Sources:

Dawson v. Toledano, 109 Cal. App. 4th 387 (2003) – frivolous appeal not automatically malpracticecasetext.com

Bertero v. National General Corp., 13 Cal. 3d 43 (1974) – landmark malicious prosecution case, allowing recovery of attorney fees and emotional distresslaw.justia.com

Crowley v. Katleman, 8 Cal. 4th 666 (1994) – malicious prosecution lies for baseless claims even if other claims had meritlaw.justia.com
Zamos v. Stroud, 32 Cal. 4th 958 (2004) – attorney liable for continuing to prosecute case after discovering lack of probable causescocal.stanford.edu
Sheldon Appel Co. v. Albert & Oliker, 47 Cal. 3d 863 (1989) – defines probable cause (objective “reasonable attorney” test)ocbar.org
In re Marriage of Flaherty, 31 Cal. 3d 637 (1982) – defines frivolous appeals and cautions against chilling advocacyminyardmorris.com
Chambers v. NASCO, Inc., 501 U.S. 32 (1991) – courts’ inherent power to sanction bad-faith litigation (upheld large sanctions)supreme.justia.com
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990) – Rule 11 sanctions allowed even after voluntary dismissal of frivolous suitsupreme.justia.com
Beecy v. Pucciarelli, 387 Mass. 589 (1982) – (Massachusetts case) attorney sued for wrongful collection action; plaintiffs alleged the stress caused a strokecasetext.com

(illustrates potential medical harm from baseless litigation).

California Code of Civil Procedure § 128.7 – sanctions for frivolous filingscalbar.ca.gov

; California Rules of Prof. Conduct 3.1 – duty to avoid meritless claims.

Attorney Negligence for Frivolous Lawsuits Causing Harm – Key Cases and Principles

When lawyers file meritless lawsuits that cause serious harm (including medical injuries like stress-induced strokes), courts have addressed their liability through the tort of malicious prosecution and related doctrines. Below we summarize published case law from California and U.S. Supreme Court on this issue – covering civil suits (including those with underlying medical injury claims) and relevant criminal-case contexts. We include outcomes (judgments or settlements) and the legal principles or precedents each case established.

Malicious Prosecution in California – Attorney Liability in Frivolous Suits

Malicious prosecution is the primary civil cause of action used to hold attorneys (and their clients) liable for initiating or continuing baseless litigation. To succeed, the plaintiff must prove: (1) the prior lawsuit was terminated in the plaintiff’s favor; (2) the prior suit was brought without probable cause; (3) it was initiated with malice (improper purpose)caselaw.findlaw.com

. If these elements are met, the victim can recover damages for legal costs, lost reputation, emotional distress, and even resulting physical harmcaselaw.findlaw.com

. Key California cases include:

Babb v. Superior Court (Cal. 1971) – The California Supreme Court made clear that attorneys have no immunity from malicious prosecution suits. It allowed a physician to sue an opposing party and her attorney for maliciously prosecuting a baseless malpractice case (once that case ended favorably for the doctor)scocal.stanford.edu

. Babb confirmed that a lawyer who knowingly pursues an unfounded claim can be held to answer for malicious prosecution just like their client.

Bertero v. National General Corp. (Cal. 1974) – A landmark California Supreme Court decision upholding a large verdict against a company and its lawyers for maliciously filing a baseless cross-complaint. The plaintiff, Bertero, had been hit with a frivolous fraud cross-claim during litigation, which caused him severe emotional distress. A jury awarded Bertero $553,952 in compensatory damages (including attorney fees and emotional harm) and $625,000 in punitive damagesscocal.stanford.edu

. The Supreme Court affirmed most of the $1.18 million judgment, solidifying that maliciously prosecuting a meritless claim carries liability for all foreseeable harm, including mental anguishcaselaw.findlaw.com

. Bertero also held that each claim in a lawsuit can be evaluated for probable cause – a concept later expanded in Crowley (below).

Crowley v. Katleman (Cal. 1994) – The California Supreme Court ruled that a malicious prosecution plaintiff can base their claim on a single baseless cause of action in a prior multi-claim lawsuitlaw.justia.com

. In other words, even if some claims had merit, an attorney may be liable for malicious prosecution if they included one groundless claim with malice. This put attorneys on notice that adding a frivolous theory to a lawsuit can lead to liability, even if the rest of the case had arguable merit.

Sheldon Appel Co. v. Albert & Oliker (Cal. 1989) – This case set the standard for “probable cause” in California. The Supreme Court held that whether an attorney had probable cause to sue is an objective legal question for the judge, not a subjective inquiry into the lawyer’s intent ocbar.org law.justia.com

. The test is whether any reasonable attorney would have thought the claim was tenable (i.e. not “totally and completely without merit” law.justia.com

). If reasonable lawyers could disagree, no liability attaches even if the claim ultimately fails. Sheldon Appel thus protects attorneys from liability for borderline or debatable claims, but still allows actions against truly frivolous lawsuits. (Notably, in Sheldon Appel the jury had hit the law firm with $1 million punitive damages for a frivolous lien claim, but the Supreme Court vacated that verdict because the probable cause issue should have been decided by the court under the objective standard ocbar.org law.justia.com

Williams v. Coombs (Cal. App. 1986) – An example of a physician’s countersuit against an attorney. A doctor (Dr. Williams) was sued for malpractice/wrongful death after a patient’s suicide; he won at trial, then sued the plaintiff’s lawyer (Coombs) for malicious prosecution. The appellate court reinstated the doctor’s claim, finding triable issues on whether the lawsuit lacked probable causecaselaw.findlaw.com

. This case illustrates that doctors wrongfully sued can hold the opposing attorney liable if the suit was utterly baseless and malicious. (The record shows Dr. Williams suffered significant stress and reputational harm; his malicious prosecution claim sought damages for those injuriescaselaw.findlaw.com

, though the emotional distress claim was barred by litigation privilege in that casecaselaw.findlaw.com

.) The case was sent back for trial on malicious prosecution, and it ultimately encouraged physicians to pursue recourse against frivolous medical malpractice suitsacademic.oup.com

Zamos v. Stroud (Cal. 2004) – A California Supreme Court decision that extended attorney liability to the continuation of a frivolous case. It held that even if an attorney had probable cause at the start, they must drop the case once they discover it has no merit. Failing to do so can support a malicious prosecution claimcasetext.com

. In Zamos, a client sued her former lawyers for fraud; new evidence showed the fraud claim was baseless, but the successor attorneys persisted with the lawsuit, allegedly causing the defendants needless harm. The court concluded “an attorney may be held liable for malicious prosecution for continuing to prosecute a lawsuit discovered to lack probable cause”casetext.com

. This ruling set a clear precedent: a lawyer’s duty of care includes abandoning a meritless case rather than pressing on and injuring the target of the suit.

Soukup v. Hafif (Cal. 2006) – Peggy Soukup, a former employee, had been sued by her ex-employer (a law firm) in an effort to intimidate her. She got that suit dismissed via California’s anti-SLAPP statute (as an illegitimate SLAPP suit) and then sued the firm and its attorneys for malicious prosecutionlaw.justia.com

. The California Supreme Court allowed her malicious prosecution claim (a “SLAPPback”) to proceed, rejecting the defendants’ attempt to escape via another anti-SLAPP motionlaw.justia.com

. This case confirmed that victims of frivolous suits meant to chill their rights can sue for malicious prosecution, and it clarified procedural rules so that the malicious prosecution “SLAPPback” is not itself struck as a SLAPP. Soukup reportedly suffered career and emotional damage from the baseless lawsuit, and California law now expressly permits recovery in such scenarios (with anti-SLAPP protections inapplicable to verified malicious prosecution claims).

Damages and Settlements: In malicious prosecution cases, California courts recognize a broad range of recoverable damages. These include legal defense costs, harm to reputation, emotional distress, and resulting physical injuries. The California Supreme Court in Bertero stressed that a maliciously sued person may recover for “injury to his reputation or impairment of… standing…, and for mental or emotional distress.”

caselaw.findlaw.com

. In extreme cases, stress from being wrongfully sued can lead to serious health problems – for example, a party’s stroke or heart attack – and those would be compensable as damages caused by the malicious lawsuit (as long as adequately linked by evidence).

Several high-profile California cases have resulted in significant judgments or settlements against those who brought frivolous suits:

Bertero (1974) as noted saw a $1.15 million judgment (including punitives) against the defendants and their attorneysscocal.stanford.edu

– a then-record award that underscored the punitive consequences for malicious litigation.

In Parrish v. Latham & Watkins / FLIR Systems (underlying case 2011, Cal. Supreme Court review 2017), two former employees were falsely accused of trade-secret theft by their ex-employer (FLIR) in a “bad faith” lawsuit that ruined their new businesspanish.law

. After winning the underlying case, the employees sued FLIR and its law firm for malicious prosecution. The litigation against the law firm was ultimately barred by a procedural rule (the “interim adverse judgment” rule, see next section), but FLIR itself agreed to a massive $39 million settlement in 2011 to resolve the malicious prosecution claimspanish.law

. This is reportedly the largest malicious-prosecution settlement in California historypanish.law

. Such an extraordinary payout highlights the scale of harm a baseless lawsuit can inflict (here, destroying an entire business) and that attorneys and clients may face huge financial exposure if they pursue meritless claims maliciously.

In Soukup, the plaintiff not only won her malicious prosecution suit at trial, but also was awarded attorney’s fees from the defendants under the anti-SLAPP statute for having to defeat their improper motionscaselaw.findlaw.com

(the case helped establish that a prevailing malicious-prosecution plaintiff can get fees if the defense raised a frivolous SLAPP motion). This emphasizes that attorneys may bear not just damage awards but also fee-shifting penalties when they engage in bad-faith litigation tactics.

Takeaway (Civil Cases): California law firmly establishes that an attorney owes a duty not to abuse the legal system by pursuing frivolous litigation. If they breach this duty – by filing or continuing a meritless lawsuit with no probable cause and with malice – they can be held liable for negligence/malpractice toward their own client and malicious prosecution toward the adversary. Victims can recover full compensatory damages (including for serious stress-related injuries like strokes, if proved) and sometimes punitive damages to punish egregious conductscocal.stanford.edu

. The key legal principles are: an objective standard for probable cause (any reasonable lawyer standardlaw.justia.com

), requirement of favorable termination for the victim scocal.stanford.edu

, and the allowance of actions against attorneys for each baseless claim and for continuing litigation after it becomes baselesscasetext.com

. California’s precedents like Bertero and Zamos have set a strong deterrent against frivolous lawsuits.

Frivolous Criminal Proceedings – Malicious Prosecution & Immunities

In the context of baseless criminal charges (as opposed to civil lawsuits), the same fundamental principles apply – no one should face maliciously instituted proceedings – but additional immunities come into play. Key points and cases include:

Malicious Prosecution of Criminal Cases: A person wrongly prosecuted without probable cause can sue for malicious prosecution once the charges end in their favor (e.g. acquittal or dismissal). All the same elements apply (termination in favor of accused, lack of probable cause, malice). For instance, California has long allowed such suits against private individuals who deliberately instigate false criminal charges. An early example is Jaffe v. Stone (Cal. 1941), where the court noted that favorable termination (acquittal) helps show the innocence of the accused and, with lack of probable cause and malice, “establishes the tort” scocal.stanford.edu

. California courts have held that a person who “sought out the police and falsely reported facts” to initiate a criminal case can be liable for malicious prosecution law.justia.com

Illustration: If an attorney (acting as a private complainant, not a prosecutor) files a police report or complaint leading to someone’s arrest without any reasonable basis, and did so out of malice, that attorney could face a malicious prosecution claim. However, such scenarios are less common; more often the target is a vindictive private accuser.

Immunity for Prosecutors: Prosecuting attorneys are generally immune from civil liability for bringing charges, even if those charges were meritless or motivated by malice. The U.S. Supreme Court in Imbler v. Pachtman, 424 U.S. 409 (1976) held that a state prosecutor acting within the scope of their duties is absolutely immune from suits for damages supreme.justia.com

. The Court acknowledged this rule can leave a wrongfully accused person without civil redress against a malicious prosecutor, but it reasoned that exposing prosecutors to liability would undermine their independent judgment and “prevent the vigorous and fearless performance of [their] duty” supreme.justia.com

. In short, public policy favors giving prosecutors freedom to pursue charges without fear of personal liability, even at the cost of denying relief to those harmed by a prosecutor’s abuse of authority supreme.justia.com

. (Prosecutors are still subject to internal discipline and can be disbarred or criminally charged for egregious misconduct, but cannot be sued for negligence or malicious prosecution in the course of their official role.)

Immunity for Witnesses: Similarly, witnesses (including complaining witnesses) have immunity from liability for their testimony. For example, if an attorney swears out a criminal complaint or testifies falsely, the witness immunity doctrine may shield them from a later lawsuit. The U.S. Supreme Court in Briscoe v. LaHue (1983) held that even false testimony in court cannot form the basis of a civil damages claim against the witness, due to absolute witness immunity. California follows this as well casetext.com

. (Notably, in Zamos the defendant attorneys tried to invoke witness immunity because part of the claim against them involved their statements in court, but the court rejected immunity for continuing the prosecution itself

casetext.com caselaw.findlaw.com

Public Entity Immunity in California: California law (Gov. Code §821.6) grants public employees immunity from tort liability for instituting or prosecuting judicial proceedings, which has been applied to shield police and investigators from malicious-prosecution-type claims in many situationslaw.justia.com

However, this immunity does not extend to false imprisonment (e.g. keeping someone in custody without legal authority) law.justia.com

. In Sullivan v. County of Los Angeles (Cal. 1974), the plaintiff had been wrongfully held in jail after his case was dismissed. The county argued immunity, but the Supreme Court held the county was not immune from a false imprisonment claim for detaining someone without basis after charges were dropped law.justia.com

. The court distinguished this from a pure malicious prosecution claim (which would have been barred by immunity) law.justia.com

. The upshot is that California public entities and employees are generally immune from suits claiming they maliciously brought a criminal case, but they can be liable if they negligently or wrongfully continue to hold someone beyond legal authority law.justia.com

Law Enforcement Liability: While prosecutors have absolute immunity, police officers and other law enforcement do not have absolute immunity for initiating a baseless prosecution. They have only qualified immunity under federal law. The U.S. Supreme Court in Malley v. Briggs, 475 U.S. 335 (1986) held that an officer who causes an arrest by submitting a complaint/warrant with no probable cause can be civilly liable under 42 U.S.C. §1983. The Court reasoned that a reasonably well-trained officer should know not to seek a warrant without adequate facts, and if they do so, the shield of qualified immunity is lost ojp.gov

. Thus, an officer (or by extension, any government attorney acting as an investigator) who “unreasonably” initiates charges without probable cause may be sued for violating the victim’s Fourth Amendment rights (a constitutional analog to malicious prosecution). In practice, this means an attorney in a prosecutorial role is immune (per Imbler), but if an attorney steps outside that role – say, fabricating evidence or acting as a complaining witness – they could lose immunity (see Kalina v. Fletcher, 522 U.S. 118 (1997), where a prosecutor was denied immunity for swearing a false affidavit in support of charges).

Damages in Criminal Malicious Prosecution: When a malicious criminal case is actionable (typically against a private instigator or police officer), the plaintiff can recover similar damages as in civil cases: lost income, legal fees, emotional distress, and any physical harm suffered (for example, health issues from the stress or from wrongful incarceration). One California case, Jackson v. Yarbray (Cal. App. 2009), involved a man who suffered health problems after being falsely prosecuted at the behest of a vindictive neighbor – he was able to sue the neighbor for malicious prosecution and claim those consequential damages. (By contrast, if a health issue like a stroke stems from mere negligence by an attorney without malice – e.g. a lawyer suing the wrong person by mistake – courts have been reluctant to impose liability. For instance, in Beecy v. Pucciarelli (Mass. 1982), a couple was wrongly sued for debt by an attorney and the husband suffered a stroke from the stress, but the court refused to hold the attorney liable in negligence or emotional-distress, absent malice or extreme wrongdoing casetext.com

. The suit was dismissed because the attorney’s conduct, though mistaken, wasn’t intentional enough to exceed litigation immunity. In California, such scenarios would typically fall under malicious prosecution only if malice and lack of probable cause are shown; mere mistake or negligence by opposing counsel usually isn’t actionable by the adversary.)

Key Precedent (Federal): Hartman v. Moore, 547 U.S. 250 (2006) – While not a traditional tort case, the U.S. Supreme Court in Hartman addressed a First Amendment retaliatory-prosecution claim and held that the plaintiff must plead and prove lack of probable cause for the underlying charges. This effectively imported the malicious prosecution standard into constitutional law: there is no liability for a retaliatory criminal charge if the officials had objectively probable cause. Hartman underscores the high bar for suing over baseless prosecutions: even in civil rights cases, the absence of probable cause is a “critical element” to establish that a prosecution was wrongful.

Other Deterrents: Sanctions and Ethical Duties

Beyond civil liability for damages, attorneys face other consequences for bringing frivolous lawsuits:

Court Sanctions: Both California and federal courts have rules authorizing sanctions (fines, fee awards) against attorneys who file frivolous or bad-faith claims. California Code of Civil Procedure §§ 128.5 and 128.7 and Federal Rule of Civil Procedure 11 empower judges to penalize filings that are completely meritless or intended to harass. For example, in Roadway Express, Inc. v. Piper, 447 U.S. 752 (1980), the U.S. Supreme Court noted that courts may require attorneys to pay the other side’s fees as a sanction for bad-faith litigation (under 28 U.S.C. §1927 or inherent power), although a pure negligence standard is not enough – there must be subjective bad faith or reckless conduct casetext.com caselaw.findlaw.com

. In Chambers v. NASCO, Inc., 501 U.S. 32 (1991), the Supreme Court upheld a sanction of nearly $1 million in attorney fees against a party (and effectively his lawyers) for extensive bad-faith litigation tactics, reaffirming that courts have inherent power to punish conduct that abuses the judicial process law.cornell.edu

These rulings serve as precedent that even if a malicious prosecution suit isn’t filed, a lawyer who presses a frivolous case can be hit with fee-shifting sanctions to compensate the victim of the frivolous suit.

Ethical and Disciplinary Rules: Attorneys are bound by ethics rules prohibiting frivolous actions. For instance, California’s Rule of Professional Conduct 3.1 bars lawyers from asserting a claim “without probable cause and for the purpose of harassing or maliciously injuring any person.” Violations can lead to State Bar discipline (suspension or disbarment). Notably, in Williams v. Coombs (above), besides facing the civil countersuit, attorney Coombs was also disciplined by the Bar for his misconduct in that case (filing a baseless cross-complaint to intimidate a witness). Thus, official case law reflects not only civil liability but that such conduct may end legal careers.
Precedent Setting: The strong stance in California case law has influenced other jurisdictions. Some states have followed California in allowing malicious prosecution actions against attorneys (with similar high standards to prevent a chilling effect on legitimate advocacy). Courts often cite California’s cases like Bertero and Zamos as leading authority on balancing the right to access courts with protecting individuals from baseless suits

casetext.com

. The precedent set by these cases is that frivolous litigation is an abuse of the legal system and that those who knowingly engage in it can be held accountable for the tangible harms they cause.

Conclusion

In sum, published case law in California and the U.S. Supreme Court firmly establishes that attorneys may be found negligent or liable for damages if they pursue meritless lawsuits that harm others. In California, the malicious prosecution tort is the chief vehicle for recovery: an attorney who files or continues a baseless case with malice and without probable cause can be sued for all proximately caused damages – from legal fees to emotional distress and even consequential medical injuries like strokes brought on by the ordeal caselaw.findlaw.com

. Landmark cases such as Bertero and Zamos reinforced that standard, setting precedent that has deterred frivolous filings. These cases highlight key principles:

Probable Cause Threshold: Lawyers must have an objectively reasonable basis for a claim. If no reasonable attorney would think the claim tenable, it fails the probable cause test law.justia.com
Malice Requirement: Liability requires more than a mere mistake; it demands an improper purpose. This ensures attorneys are not punished for good-faith errors, only for knowing or reckless misuse of the courts.
Duty to Withdraw: An attorney’s duty is ongoing – if evidence later shows the case is groundless, they must withdraw or face liability for continuing a meritless action casetext.com
Damages and Accountability: Courts will fully compensate victims of frivolous suits – even for serious personal injuries resulting from stress – and impose punitive damages or sanctions to penalize egregious attorney misconduct scocal.stanford.edu

The record $39 million settlement in the FLIR malicious prosecution saga exemplifies the extent of accountability for outrageous, bad-faith litigation panish.law

Criminal Case Nuance: While private individuals (and even police, under federal law) can be liable for maliciously initiating criminal proceedings without cause, prosecutors enjoy absolute immunity

supreme.justia.com

.This draws a line between truly malicious abuse of the legal process by private actors (or attorneys in a civil role) – which courts will remedy – versus the policy shield around official prosecutorial decisions.

Every case reinforces a common theme: the legal system is meant to resolve genuine disputes, not to be a weapon of harassment. Attorneys are “officers of the court” and are expected to uphold that integrity. The precedents in California and from the U.S. Supreme Court strike a balance between allowing zealous advocacy and sanctioning abusive litigation. Frivolous lawsuits that recklessly endanger others’ well-being are met with stern judicial disapproval and liability. In practice, these rulings have set a powerful precedent that deters meritless litigation and provides redress when an attorney’s negligence or malice in filing a lawsuit causes real harm.

Sources:

Bertero v. National General Corp., 13 Cal.3d 43 (Cal. Sup. Ct. 1974) (upholding $1.178M verdict for malicious prosecution; attorneys liable for frivolous cross-complaint) scocal.stanford.edu
Babb v. Superior Court, 3 Cal.3d 841 (Cal. Sup. Ct. 1971) (attorney and client can be joint defendants in malicious prosecution; no attorney immunity) scocal.stanford.edu
Sheldon Appel Co. v. Albert & Oliker, 47 Cal.3d 863 (Cal. Sup. Ct. 1989) (probable cause is an objective legal question; defined “lack of probable cause” as no reasonable lawyer would think the claim tenable)ocbar.org law.justia.com
Crowley v. Katleman, 8 Cal.4th 666 (Cal. Sup. Ct. 1994) (malicious prosecution can be based on a single baseless claim in a multi-claim suit)law.justia.com
Zamos v. Stroud, 32 Cal.4th 958 (Cal. Sup. Ct. 2004) (attorney liable for continuing to prosecute a lawsuit after discovering it’s meritless)casetext.com
Williams v. Coombs, 179 Cal.App.3d 626 (Cal. Ct. App. 1986) (doctor’s malicious prosecution suit against opposing counsel allowed to proceed – lack of probable cause in underlying wrongful death case was triable)caselaw.findlaw.com
Soukup v. Law Offices of Herbert Hafif, 39 Cal.4th 260 (Cal. Sup. Ct. 2006) (SLAPP suit dismissed; former employee’s malicious prosecution claim against attorneys survived anti-SLAPP; affirmed viability of “SLAPPback” actions)law.justia.com
Sullivan v. County of Los Angeles, 12 Cal.3d 710 (Cal. Sup. Ct. 1974) (discussing Gov’t Code immunities; public entities immune from malicious prosecution but not from false imprisonment for holding someone past dismissal of charges)law.justia.com
Imbler v. Pachtman, 424 U.S. 409 (U.S. Sup. Ct. 1976) (absolute immunity for prosecutors from civil suits for malicious prosecution under §1983)supreme.justia.com
Malley v. Briggs, 475 U.S. 335 (U.S. Sup. Ct. 1986) (no absolute immunity for officer who initiated baseless charges; could be liable if no reasonable officer would think probable cause exists)ojp.gov
Additional Reference: Beecy v. Pucciarelli, 387 Mass. 589 (Mass. SJC 1982) (attorney’s erroneous debt collection suit allegedly caused defendant’s stroke; court denied recovery absent malice, declining to extend negligence liability to adversary) casetext.com

– contrasted with California’s requirement of malice for such claims.

Parrish v. Latham & Watkins, 3 Cal.5th 767 (Cal. Sup. Ct. 2017) (reinforced “interim adverse judgment” rule – a preliminary courtroom victory, like defeating summary judgment, establishes probable cause even if the case later fails; used to defend attorneys in the FLIR malicious prosecution matter) casetext.com

. (After this ruling, FLIR’s direct liability remained, leading to the record $39 million settlement) panish.law

Chambers v. NASCO, Inc., 501 U.S. 32 (U.S. Sup. Ct. 1991) (federal court’s inherent power to sanction bad-faith litigation with fee awards, in addition to Rule 11 or §1927) law.cornell.edu
Statutory: Cal. Code Civ. Proc. §128.7 (attorney sanctions for frivolous filings) sdcba.org

; Cal. Rules of Prof. Conduct 3.1 (ethical duty against frivolous claims) calbar.ca.gov

Anti Slapp Law Resources:

Anti-SLAPP Law in California

Anti-SLAPP and Free Speech in Defamation & Emotional Distress Cases

Attorney Liability for Meritless Litigation Leading to Harm

Court tosses disbarred lawyer’s suit over newspaper article

California Supreme Court Confirms that the “anti-SLAPP” Statute Applies to Claims of Discrimination and Retaliation

Anti-SLAPP Law Cases – Case Law Summaries & Citings

Free Speech, the First Amendment, and Social Media

How Anti-SLAPP Laws Protect Your Right to Free Speech

Code of Civil Procedure – Section 425.16 California’s Anti-SLAPP Law

How Anti-SLAPP Laws Protect Your Right to Free Speech

The Truth News — Tue, 19 Aug 2025 05:23:09 +0000

https://goodshepherdmedia.net/wp-content/uploads/2022/11/Fort-Minor-Remember-the-Name.mp3

How Anti-SLAPP Laws Protect Your Right to Free Speech

The First Amendment protects freedom of speech. We are free to speak out on issues we care about without fear that the government will stop us or punish us.

But it can be risky to criticize public figures. Powerful people often have the financial resources to respond to criticism with a lawsuit.

This type of lawsuit is called a SLAPP, which stands for Strategic Lawsuit Against Public Participation. The goal of a SLAPP is to get a person to retract their criticism of the person or business. But there are now a growing number of anti-SLAPP laws designed to protect speakers from the threat of going to court to defend their First Amendment right to free speech.

What are anti-SLAPP laws?

Anti-SLAPP laws are designed to protect free speech from being threatened or shut down by people on the receiving end of critical speech. They are designed to prevent SLAPP lawsuits.

What are SLAPP lawsuits?

University of Denver professors Penelope Canan and George Pring created the term SLAPP in the 1980s to refer to a lawsuit whose primary purpose is harassment and intimidation.

The goal is to force someone to take back a critical statement – or not make it in the first place – or else face an expensive lawsuit.

Both the financial and emotional toll are often greater for the defendant than the plaintiff, the person bringing the suit. Most SLAPP suits are filed by powerful people or corporations to protect their reputations against criticism from average people. They are often well-resourced and able to rely on their legal teams to do all the work. Defendants have less money to pay lawyers and must actively participate in their own defense.

How do SLAPP lawsuits affect people’s free expression?

To end or prevent a SLAPP, people will frequently agree to apologize and change their statements and promise not to speak out in the future. This sends a clear message to others who might speak critically as well. The result is the chilling of free speech and healthy debate about important matters of public concern.

Most SLAPP suits are based on claims of defamation or damaging someone’s reputation. But they can also claim a breach of contract, civil rights violations, interfering with the right to do business, or copyright or trademark infringement. They range from complex lawsuits filed in federal court to individual disputes over purely local matters.

How do anti-SLAPP laws protect free expression?

An anti-SLAPP law is designed to prevent SLAPP lawsuits.

Thirty-three states and the District of Columbia have anti-SLAPP laws. But despite repeated attempts, Congress has never passed a federal anti-SLAPP law. People in 17 states, and many people who are sued in federal court, lack protection from SLAPP suits.

Anti-SLAPP laws make it easier for someone who has been sued for exercising their First Amendment rights to get a SLAPP lawsuit dismissed quickly.

More important, anti-SLAPP laws deter people from trying to use lawsuits to silence others. While anti-SLAPP laws vary from state to state, all offer one or more of the following protections:

1. They protect a wide range of First Amendment activities.

Anti-SLAPP laws require that the person being sued show that the lawsuit is targeting their First Amendment rights. Some only apply to statements made in an official government proceeding, like allegations made during a public-school board meeting or in front of the city council. Others apply to any speech on a matter of public concern, no matter where, when or how it occurs. These strong anti-SLAPP laws will also give the speaker the benefit of the doubt that the speech is about a matter of public concern.

2. They put the burden on the person suing.

In most lawsuits, the person being sued can only get the case dismissed in its early stages if they can clearly show they will win; if not, the case can potentially continue for months or even years at great expense.

Anti-SLAPP laws recognize the importance of free speech by putting the burden on the person who is suing to demonstrate why the lawsuit needs to happen. Once the person being sued shows the lawsuit is challenging his or her free speech rights, an anti-SLAPP law requires the person bringing the lawsuit to demonstrate they are likely to win the case. If they cannot do so, the case will be dismissed.

3. They accelerate a final decision.

An initial step in most lawsuits is a long and expensive process where each side collects information from the other in advance of trial. There are often several pre-trial hearings on legal issues. Anti-SLAPP laws pause these time-consuming steps until the court decides who should win.

4. They allow immediate appeal of the initial decision.

Most court cases require that the entire process plays out before the losing party can appeal. Anti-SLAPP laws often say that a defendant can immediately appeal a decision, saving significant time and money.

5. They award attorney fees and court costs to a winning defendant.

The U.S. legal system doesn’t require that a person who unsuccessfully files a lawsuit pay the legal fees and costs of the person they sued. This means successfully defending yourself in a lawsuit is often a hollow victory. Yes, you won but you also had to pay tens of thousands of dollars to win. An anti-SLAPP law says that if the person suing to stop the speech loses, then they must pay the legal fees and court costs of the person being sued.

What are some examples of SLAPP lawsuits?

Some of the biggest First Amendment cases in our history meet the definition of a SLAPP:

New York Times Co. v. Sullivan (1964) is considered the most important protector of press freedom. It set the high standard that a public figure filing a defamation lawsuit must show that an allegation made about them was false and that the speaker who made the mistake knew or should have known it was wrong. This standard makes it possible to challenge and criticize powerful people. The lawsuit involved a paid political advertisement in The New York Times designed to raise money for the civil rights movement by criticizing law enforcement response to civil rights protests. It was filed by L.B. Sullivan, Montgomery, Alabama, police commissioner, even though he wasn’t named in the advertisement. Sullivan said that certain facts in the article were incorrect; the paper countered that they were minor mistakes and didn’t matter in terms of the public’s overall view of the treatment of civil rights protesters by southern law enforcement. The lawsuit was filed in Alabama where a jury would be more sympathetic to Sullivan than to the northern newspaper. The jury awarded Sullivan $500,000 to send a message to civil rights activists. But the U.S. Supreme Court later overturned the verdict and protected the newspaper.
NAACP v. Claiborne Hardware Co. (1982) also had roots in the civil rights movement. In 1966, a local branch of the NAACP organized a boycott against white merchants who discriminated against Black people in Mississippi. The business owners sued the NAACP. Most protesters’ actions were protected by the First Amendment, but a few people took unprotected actions like threatening store owners. A Mississippi court ruled for the business owners, ordering the NAACP to pay $3.5 million in damages. It took 16 years before the Supreme Court overturned that verdict, saying “the boycott clearly involved constitutionally protected activity” designed “to bring about political, social, and economic change.”

Most SLAPP suits involve everyday speech by average people:

In 2003, the Northwest Bronx Community and Clergy Coalition picketed several buildings in New York where tenants lived in terrible conditions. Instead of fixing the problem, building owners sued the NWBCCC for trespass, libel and wrongful interference with business relationships. The court cases went on for several years. They were eventually dismissed but cost NWBCCC more than $1 million in legal fees and forced the organization to focus on defending the lawsuit rather than advocacy efforts.
In 2010, college student Justin Kurtz’s car was towed from his apartment complex. He started a Facebook group called “Kalamazoo Residents against T&J Towing,” which criticized the towing company’s aggressive practices. T&J Towing filed a lawsuit seeking $750,000 in damages from Kurtz for alleged defamation. The lawsuit lasted eight months before Kurtz and the company decided to resolve their case on their own, out of court. Kurtz was not reimbursed for his legal fees but did exact some measure of revenge: the case went viral with The New York Times eventually publishing a front-page article and the Facebook group grew to 14,000 members.
In 2010, the Washington City Paper, a free weekly newspaper, published an article that catalogued many alleged wrongdoings by Dan Snyder, the then-owner of Washington, D.C.’s professional football team. He was not amused and filed a defamation lawsuit. Snyder’s lawyers warned the corporate owners of the City Paper that “the cost of litigation would presumably quickly outstrip the asset value” of the newspaper. This letter, in effect, said it would be easier for the City Paper to apologize and go away than stand by its story. The paper did just that, and Snyder eventually dropped the lawsuit.
In 2019, then-Congressman Devin Nunes filed – and lost – a lawsuit against Twitter and the creators of two parody accounts “Devin Nunes’ Cow” (a mocking reference to his family farm) and “Devin Nunes’ Mom.” Nunes lived in California but filed his lawsuit in Virginia, where there aren’t anti-SLAPP laws. He demanded $250 million. He lost but has filed several different lawsuits since 2018 seeking more than $900 million from those he believes has wronged him. To date, he has not won any of them.

What are some examples of anti-SLAPP laws that protected free speech?

Anti-SLAPP laws have successfully protected speakers in a variety of cases throughout the country:

In 2003, a Baltimore developer tried to sue future tenants for $25 million after the tenants criticized changes to building plans. The lawsuit was dismissed under the Maryland anti-SLAPP law.
In 2015, Robert and Michele Duchouquette posted an unfavorable review of Pets for Care on Yelp. The pet-sitting company sued for defamation and for violation of a clause in their service contracts that says clients cannot make negative comments about them. Pets for Care sought up to $1 million and removal of the negative review. Using the Texas anti-SLAPP law, the Duchouquettes got the lawsuit dismissed. They were reimbursed for more than $23,000 in legal fees and other costs.
In 2017, Phoenix business owner Charlie Lai criticized commercial property owner True North’s remodeling plans. True North tried to sue. Lai used the Arizona anti-SLAPP law to get the lawsuit dismissed, and the court ordered True North to pay his attorney fees.

Anti-SLAPP laws and the First Amendment

While the First Amendment provides strong legal protection for a free press and for our rights as individuals to speak, assemble and petition the government, when a lawsuit challenges these freedoms, it can get costly. Anti-SLAPP laws serve as a great equalizer. They protect those who might otherwise have to self-censor in the face of legal threats. They allow us to speak out on matters that affect our everyday lives. source

Anti Slapp Law Resources:

Anti-SLAPP Law in California

Anti-SLAPP and Free Speech in Defamation & Emotional Distress Cases

Attorney Liability for Meritless Litigation Leading to Harm

Court tosses disbarred lawyer’s suit over newspaper article

California Supreme Court Confirms that the “anti-SLAPP” Statute Applies to Claims of Discrimination and Retaliation

Anti-SLAPP Law Cases – Case Law Summaries & Citings

Free Speech, the First Amendment, and Social Media

How Anti-SLAPP Laws Protect Your Right to Free Speech

Code of Civil Procedure – Section 425.16 California’s Anti-SLAPP Law

Court tosses disbarred lawyer’s suit over newspaper article

The Truth News — Mon, 18 Aug 2025 06:43:41 +0000

https://goodshepherdmedia.net/wp-content/uploads/2022/11/Fort-Minor-Remember-the-Name.mp3

Court tosses disbarred lawyer’s suit over newspaper article on his ethics case with a ‘crime’ header

An appeals court in California has tossed a suit filed against the San Francisco Chronicle by a now-disbarred lawyer who claimed the newspaper defamed him partly by putting a “crime” header caption on a story about his ethics case.

The lawyer, Wade Robertson, also said the September 2013 article defamed him by reporting he had “cheated” an elderly client out of $3.5 million and he had been suspended from law practice.

The San Francisco Chronicle article had reported on a disbarment recommendation stemming from Robertson’s partnership with a 77-year-old Maryland resident who contributed $3.5 million to finance a class action lawsuit in return for a cut of the proceeds. Robertson had used the money for personal investments and failed to disclose that the class action was dismissed, a state bar court had found.

The California Court of Appeal, First District, said in a June 26 unpublished opinion that the article was an accurate report on an official proceeding by the state bar court. The “crime” header, when read in conjunction with the entire article, does not accuse Robertson of any crime, the appeals court said.

In addition, the appeals court said, the state bar court had concluded that Robertson had committed acts involving moral turpitude, dishonesty or corruption in “a deviously orchestrated plan to defraud” the Maryland man. The San Francisco Chronicle accurately summarized the findings, the appeals court said. And its report that Robertson was suspended pending an appeal was “entirely accurate,” the appeals court said, though the actual term for his suspension was a transfer to “involuntary inactive status.”

The appeals court affirmed dismissal of the lawsuit based on California’s anti-SLAPP law, which authorizes a motion to dismiss a suit arising from the right to free speech in connection with a public issue. “From time to time, this court has encountered difficult cases concerning the scope and application of the anti-SLAPP (strategic lawsuit against public participation) statute,” the opinion began. “This case is not one of them.”

Anti Slapp Law Resources:

Anti-SLAPP Law in California

Anti-SLAPP and Free Speech in Defamation & Emotional Distress Cases

Court tosses disbarred lawyer’s suit over newspaper article

California Supreme Court Confirms that the “anti-SLAPP” Statute Applies to Claims of Discrimination and Retaliation

Anti-SLAPP Law Cases – Case Law Summaries & Citings

Code of Civil Procedure – Section 425.16 California’s Anti-SLAPP Law

The Truth News — Fri, 15 Aug 2025 03:48:27 +0000

https://goodshepherdmedia.net/wp-content/uploads/2022/11/Fort-Minor-Remember-the-Name.mp3

Code of Civil Procedure – Section 425.16 California’s Anti-SLAPP Law

Code of Civil Procedure – Section 425.16.

(a) The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.

(b) (1) A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. (2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. (3) If the court determines that the plaintiff has established a probability that he or she will prevail on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the case, or in any subsequent action, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination in any later stage of the case or in any subsequent proceeding.

(c) (1) Except as provided in paragraph (2), in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to Section 128.5. (2) A defendant who prevails on a special motion to strike in an action subject to paragraph (1) shall not be entitled to attorney’s fees and costs if that cause of action is brought pursuant to Section 6259, 11130, 11130.3, 54960, or 54960.1 of the Government Code. Nothing in this paragraph shall be construed to prevent a prevailing defendant from recovering attorney’s fees and costs pursuant to subdivision (d) of Section 6259, 11130.5, or 54690.5.

(d) This section shall not apply to any enforcement action brought in the name of the people of the State of California by the Attorney General, district attorney, or city attorney, acting as a public prosecutor.

(e) As used in this section, “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue” includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

(f) The special motion may be filed within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper. The motion shall be scheduled by the clerk of the court for a hearing not more than 30 days after the service of the motion unless the docket conditions of the court require a later hearing.

(g) All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this section. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. The court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision.

(h) For purposes of this section, “complaint” includes “cross-complaint” and “petition,” “plaintiff” includes “cross-complainant” and “petitioner,” and “defendant” includes “cross-defendant” and “respondent.”

(i) An order granting or denying a special motion to strike shall be appealable under Section 904.1.

(j) (1) Any party who files a special motion to strike pursuant to this section, and any party who files an opposition to a special motion to strike, shall, promptly upon so filing, transmit to the Judicial Council, by e-mail or facsimile, a copy of the endorsed, filed caption page of the motion or opposition, a copy of any related notice of appeal or petition for a writ, and a conformed copy of any order issued pursuant to this section, including any order granting or denying a special motion to strike, discovery, or fees. (2) The Judicial Council shall maintain a public record of information transmitted pursuant to this subdivision for at least three years, and may store the information on microfilm or other appropriate electronic media.

History of statute:

1992 — Senate Bill 264 (Lockyer). For a list of organizations and newspapers that supported enactment of the original statute, see Supporters of 1992 Anti-SLAPP Bill.

1993 — The statute was amended to require award of costs and attorney fees to the plaintiff if the court finds that a special motion to strike is frivolous or solely intended to cause unnecessary delay.

1997 — Senate Bill 1296 (Lockyer). The statute was amended in light of appellate court opinions that had narrowly construed application of the statute to disputes involving matters of “public interest”. In amending the statute, the Legislature clarified its intent that any conduct in furtherance of the rights of petition or free speech is protected under the anti-SLAPP law.

1999 — Assembly Bill 1675 (Assembly Judiciary Committee). Under the original statute, a defendant whose special motion to strike a complaint was denied could challenge the denial only through a petition for a writ in the Court of Appeal. Writs are discretionary, disfavored, and rarely successful. If, however, a plaintiff’s complaint were dismissed pursuant to a special motion to strike, the plaintiff was able to appeal the dismissal immediately. Thus, the statute was amended to give the SLAPP target — the person whom the anti-SLAPP law was designed to protect — the same ability as the filer of the SLAPP to challenge an adverse trial court decision. See also Supporters of AB 1675.

2005 — Assembly Bill 1158 (Lieber). The statute was amended to overrule the decision by the California Supreme Court in Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, which held that the trial court’s erroneous denial of an anti-SLAPP motion constitutes probable cause for filing and maintaining a SLAPP, as well as the decisions in Decker v. The U.D. Registry, Inc.(2003) 105 Cal.App.4th 1382, and Fair Political Practices Commission v. American Civil Rights Coalition, Inc. (2004) 121 Cal.App.4th 1171, which held that the 30-day period in which to schedule a hearing on an anti-SLAPP motion is jurisdictional.

2009 — The statute was amended to add section 425.16(c)(2), which provides that a defendant who prevails on an anti-SLAPP motion may not be awarded fees on claims of violation of the public records act or open meetings law. source

The Evidentiary Standard under the anti-SLAPP Statute (Code Civ. Proc. §425.16): Sweetwater Union High School Dist. v. Gilbane Building Co. (2019)

Section 425.16 of the California Code of Civil Procedure (the “Anti-SLAPP statute”) was first enacted in 1991. Notwithstanding the statute’s relatively long history, California case law has focused almost entirely on the first prong addressing the application of the statute, i.e., whether the claim arises out of petitioning or other protected activity. In fact, it was not until February 2019 that the California Supreme Court issued its first decision addressing the necessary evidentiary showing under the second prong, i.e., whether a plaintiff had established a probability of prevailing on the claim. See Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 940.

In Sweetwater, the California Supreme Court held that in order to demonstrate a probability of prevailing on the claim, courts require that the evidence relied on by the plaintiff must be admissible at trial. Id. at 946-48. Unless the evidence referred to is admissible, or at least not objected to, there is nothing for the trier of fact to credit. An assessment of the probability of prevailing on the claim looks to trial, and the evidence that will be presented at that time. Therefore, it follows that such evidence must be admissible. Id. The court, without resolving evidentiary conflicts, must determine whether the plaintiff’s showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment at trial. Id. at 947.

Since Sweetwater, there has been scant case law addressing this evidentiary standard. In fact, it took almost a full year, until February 19, 2020, for the issuance of an appellate decision which provided an interpretation of Sweetwater, i.e., Kinsella v. Kinsella (2020) 45 Cal.App.5th 442. In Kinsella, the Court of Appeal addressed a cause of action for malicious prosecution based upon the filing of a prior civil action. The appellate court held that on a claim for malicious prosecution, the Plaintiff’s opposition to an anti-SLAPP motion must demonstrate the claim is “supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the Plaintiff is credited.” Id. at 450-53.

In reaching its conclusion, again relying upon Sweetwater, the Court of Appeal was clear that under prong two of the anti-SLAPP analysis, the applicable standard is whether “plaintiff presented evidence of a prima facie case of the elements of the cause of action” (e.g., malicious prosecution). Id. at 463, fn.16) (emphasis in original). If a plaintiff has made the necessary showing, the court then evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. Id. at 453.
The attorneys at Berman, Berman, Berman, Schneider & Lowary LLP can address any questions you have regarding the above, and they are uniquely qualified to provide additional insight and guidance. source

California anti-SLAPP Statute

California has a strong anti-SLAPP law. To challenge a SLAPP suit in California, defendants must show that they are being sued for “any act . . . in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.” Cal. Civ. Proc. Code § 425.16 (2019). Under the statute, the rights of free speech or petition in connection with a public issue include four categories of activities: statements made before a legislative, executive or judicial proceeding; statements made in connection with an issue under consideration by a governmental body; statements made in a place open to the public or a public forum in connection with an issue of public interest; and any other conduct in furtherance of the exercise of free speech or petition rights in connection with “a public issue or an issue of public interest.” § 425.16(e).

California courts consider several factors when evaluating whether a statement relates to an issue of public interest, including whether the subject of the statement at issue was a person or entity in the public eye, whether the statement involved conduct that could affect large numbers of people beyond the direct participants, and whether the statement contributed to debate on a topic of widespread public interest. Rivero v. Am. Fed’n of State, Cty., & Mun. Emps., 130 Cal. Rptr. 2d 81, 89–90 (Cal. Ct. App. 2003). Under this standard, statements that report or comment on controversial political, economic, and social issues, from the local to the international level, would certainly qualify. Conversely, a California court has held that statements about a person who was not in the public eye did not relate to an issue of public interest. Dyer v. Childress, 55 Cal. Rptr. 3d 544 (Cal. Ct. App. 2007).

The California anti-SLAPP law allows a defendant to file a motion to strike the complaint, which the court will hear within 30 days unless the docket is overbooked. Cal. Civ. Proc. Code § 425.16(f). Discovery activities are placed on hold from the time the motion is filed until the court has ruled on it, although the judge may permit “specified discovery” if the requesting party provides notice of its request to the other side and can show good cause for it. § 425.16(g).

In ruling on the motion to strike, a California court will first determine whether the defendant established that the lawsuit arose from one of the statutorily defined protected speech or petition activities. Braun v. Chronicle Publ’g Co., 61 Cal. Rptr. 2d 58 (Cal. Ct. App. 1997). If that is the case, the judge will grant the motion unless the plaintiff can show a probability that he will prevail on the claim. Cal. Civ. Proc. Code § 425.16(b)(1). In making this determination, the court will consider the plaintiff’s complaint, the SLAPP defendant’s motion to strike, and any sworn statements containing facts on which the assertions in those documents are based. § 425.16(b)(2).

If the court grants the motion to strike, it must impose attorney’s fees and costs on the plaintiff, except when the basis for the lawsuit stemmed from California’s public records or open meetings laws. Cal. Civ. Proc. Code § 425.16(c)(1)-(2). These laws provide separate provisions for recovering attorney’s fees and costs.

The California anti-SLAPP law also gives a successful defendant who can show that the plaintiff filed the lawsuit to harass or silence the speaker the ability to file a so-called “SLAPPback” lawsuit against his or her opponent. § 425.18. Under this remedy, a SLAPP defendant who won a motion to strike may sue the plaintiff who filed the SLAPP suit to recover damages for abuse of the legal process. Conversely, the defendant must pay the plaintiff’s attorney’s fees and costs if the court finds that the motion to strike was frivolous or brought solely to delay the proceedings. § 425.16(c)(1).

Either party is entitled to immediately appeal the court’s decision on the motion to strike. § 425.16(i). source

Anti Slapp Law Resources:

Anti-SLAPP Law in California

Anti-SLAPP and Free Speech in Defamation & Emotional Distress Cases

Attorney Liability for Meritless Litigation Leading to Harm

Court tosses disbarred lawyer’s suit over newspaper article

California Supreme Court Confirms that the “anti-SLAPP” Statute Applies to Claims of Discrimination and Retaliation

Anti-SLAPP Law Cases – Case Law Summaries & Citings

Free Speech, the First Amendment, and Social Media

How Anti-SLAPP Laws Protect Your Right to Free Speech

Code of Civil Procedure – Section 425.16 California’s Anti-SLAPP Law

Free Speech, the First Amendment, and Social Media

The Truth News — Wed, 13 Aug 2025 01:28:27 +0000

https://goodshepherdmedia.net/wp-content/uploads/2022/11/Fort-Minor-Remember-the-Name.mp3

Free Speech, the First Amendment, and Social Media

by John Bandler

NOTE: This is my original article after the events of 1/6/2021 and is not updated regularly and does not have the newer diagrams. So go read this article here which does not directly refer to those events and is updated more frequently.

Here’s a quick primer on the First Amendment of the United States Constitution, what it means for free speech, and how it applies to social media and other platforms for speech. Misconceptions exist because law can be confusing and some people disseminate inaccurate information. This short piece lays out the basics and ties it into the events of 1/6/2021.

The U.S. Constitution

The United States Constitution is the foundation of all laws in this country. It establishes our system of government and puts limits upon what government can do. It created a system of checks and balances by establishing three branches of government — executive, legislative, and judicial. Our federal government is of limited powers (in theory), and any powers not specifically granted to it are reserved for the states and individuals. The Constitution does not say what private individuals and organizations can or cannot do (though other laws do).

The First Amendment

Within the U.S. Constitution are Amendments, and the first ten are known as the Bill of Rights. These grant rights and freedoms to the people and restrict what the federal government can do. These restrictions have also been applied to state and local governments. Relevant here is the First Amendment, which reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Of course this “freedom of speech” protection extends past the spoken word to other forms of expression, and includes writings, art, and more.

In the centuries since the First Amendment was enacted, courts have weighed in many times about what it means, and legal evolution progressed. Thousands of people have been criminally prosecuted or civilly sued after they said or wrote something, and then they raised a First Amendment defense. Judges made rulings, these rulings were appealed, and then other judges ruled. Occasionally, the U.S. Supreme Court (our country’s highest court) ruled. We now have a significant body of law and analysis — thousands of pages — interpreting those forty five words of the First Amendment.

The law is clear that the government must not violate the First Amendment, nor can the government be a tool to impinge upon rights guaranteed by it. This has implications for criminal and civil proceedings. In criminal proceedings, the full weight of government seeks to punish an individual. In civil proceedings, which are often between private parties, it is government that runs the courts which resolve these disputes.

Three categories of speech

It is helpful to think how particular speech might fall into one of three categories regarding what government can and cannot do:

Fully protected free speech, from which no successful legal action (criminal or civil) can be brought,
Speech that might be civilly actionable (e.g., subject to a successful civil suit for defamation, or invasion of privacy, infliction of emotional distress, etc.),
Speech that might be criminally actionable (subject to a successful criminal prosecution, such as harassment, stalking, menacing, or part of another crime).

Note that these categories are about what government can (or cannot) do. Separate from this are private consequences — what a private party might think or do as a result of what we say. Our speech can always have private consequences, and that falls outside of the First Amendment.

The line between these three categories can be blurry. Any government restrictions upon speech must be “narrowly tailored” and “content neutral” to avoid violating the First Amendment, and not all speech is protected by the First Amendment.

Here are some examples of speech that might be the proper subject of a criminal prosecution:

Menacingly stating “Give me your wallet or I’ll kill you”.
Falsely shouting “Fire!” or “Bomb!” in a crowded theatre causing panic and injury.
Saying words that incite violence or a riot (or perhaps even the storming of the U.S. Capitol).

Civil lawsuits involving speech also face First Amendment scrutiny. A lawsuit (civil action) for defamation (libel or slander) will fail if the speech is true. Public figures face an additional hurdle because they must also show actual malice—that the writer knew the statement was false, or recklessly disregarded whether it might be false. Other civil lawsuits could include for invasion of privacy, depicting someone in a false light, or intentional infliction of emotional distress.

Thus the First Amendment is a limitation on how government can restrict speech. It provides freedoms (from government) to private individuals and entities about what they can say, or choose not to say.

Again, it would be a mistake to say that the First Amendment is a restriction upon what individuals or private organizations can do. And yet it seems that many individuals make this mistake—including some who know better.

Senator Hawley’s book deal

Josh Hawley is a United States Senator from Missouri, a Yale educated lawyer, former state attorney general and law professor. Despite these impressive bona fides, he falsely claimed (shortly after the riotous events of 1/6/2021) that the cancelation of his book contract by Simon & Schuster was a violation of the First Amendment.

He was wrong, because the publisher is a private company, protected by the First Amendment not restricted by it. The publisher has a choice whether to print or not. It is nonsensical to argue that the First Amendment obligates a private company to do a Senator’s bidding. Senator Hawley remained free to find another publisher or self publish his book (he did indeed find another publisher for his book), and any legal claim he might have against Simon & Schuster would need to be grounded in contract law, not constitutional law. His legal claim would likely fail, because chances are good that under the book contract Simon & Schuster had ample cause to cancel publication.

Sen. Hawley surely knew the law around free speech better than he stated. And it is supremely ironic for a government official to claim that a private entity violated their First Amendment right. As a side note, we can evaluate the general credibility of a person when we identify instances where they knowingly tell an untruth. By debunking Sen. Hawley’s smaller untruth about the First Amendment, we can better evaluate his credibility for more serious lies about conspiracy theories and election fraud. A reckless disregard for the truth is evident.

Former president Trump’s social media accounts

On January 8th 2021, Twitter suspended the account of then soon-to-be former president Donald Trump, citing violation of their rules. Facebook did the same.

Some mistakenly claimed this also constituted a First Amendment violation, but that cannot be. Like Simon & Schuster, Twitter, Facebook, and other social media companies are not government actors, but private entities. The First Amendment exists as a shield to protect private entities from government restrictions on speech. In no way could the First Amendment restrict private entities, or make private entities obligated to do a President’s bidding to allow or prohibit certain speech. Trump accepted Twitter’s Terms of Service (as all Twitter users have). Those terms are a contract, he was bound by them, violated them (repeatedly), and was banned according to it. It is not a First Amendment issue (though many other issues do exist).

Social media regulation?

If social media platforms are not restricted by the First Amendment as private entities, are they subject to other laws or regulations? Undoubtedly, but that’s getting more complex and beyond the scope here. But think of the growing field of privacy law (what the social media company can do with personal information about users) and Section 230 of the Communications Decency Act (47 U.S. Code § 230).

Social media platforms bring complicated issues. There is a tension between allowing anyone to say whatever they want, versus creating some rules and moderating the platform. Most would agree such platforms should take reasonable steps to reduce criminal activity, reduce incitement to violence, limit hate speech, and even reduce the spread of conspiracy theories, propaganda, and disinformation. Platforms without any moderations become cesspools of disgusting speech and overt criminality.

Once we agree upon some of the basics, we can have a reasonable debate about how moderation should be done. Conversely, if we cannot agree upon basic facts or basic legal principles, or if we apply them selectively depending on whose side we want to champion, we are not going to have a reasonable debate.

There are also concerns about how social media monetize their platform—how they collect, use, and share user information. Users don’t pay for Twitter, Facebook, Instagram, LinkedIn or any of the other social media platforms, but that doesn’t mean it is free. As the saying goes, “If the service is free, the product is you”. All of these platforms seek to make money based upon information about their users. This is the subject of a growing area of regulation and law, and we should increase our awareness of the privacy policies we agree to, our privacy settings, and the companies who use our information.

Consumers and voters remain the key

Consumers and voters need to exercise their own diligence to obtain facts, and be resistant to appeals to anger and hate, conspiracy theories, propaganda, and lies. Decisions should be made based on facts, logic, and reason. We should vote for candidates who are truthful, and not support those who lie or who are unethical. As consumers, we make decisions about what we buy, click on, or watch, and those decisions should be thoughtful too. You can read more of my thoughts on that here.

Conclusion

While I am a lawyer and I teach about law, I am no expert in First Amendment and Constitutional law. This short article is for your introductory information but is not tailored to your circumstances, nor is it legal advice. Hopefully it makes some foundational concepts clear, and puts you on the road to better understanding.

source

Free Speech, the First Amendment, and Social Media

First Amendment things to know

by John Bandler

Here’s a primer on the First Amendment of the United States Constitution, what it means for free speech, and how it applies to social media and other platforms for speech. Misconceptions exist because law can be confusing and some disseminate false information. This short piece lays out the basics without tying it too closely to individuals or political events.*

Before we get into the details, let’s outline a way to categorize speech, starting with the biggest category (everything) and then smaller and smaller subsets of that.

All speech (any speech)
Annoying speech (annoys at least one person)
Unfriending speech (annoys a person enough that they take some type of action)
Civilly actionable speech (a very small subset of the above)
Criminally actionable speech (a tiny, infinitesimal subset of the above)

This diagram lays it out, though not to scale (see later as I adjust that).

The First Amendment limits the scope of those last two categories, by protecting us from those types of government actions, as we will dive into now.

The U.S. Constitution

The First Amendment

Within the U.S. Constitution are Amendments, and the first ten are known as the Bill of Rights. These grant rights and freedoms to the people and restrict what the federal government can do. These restrictions have also been applied to state and local governments (via the Fourteenth Amendment). Relevant here is the First Amendment, which reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Of course this “freedom of speech” protection extends past the spoken word to other forms of expression, and includes writings, art, and more.

The law is clear that the government must not violate the First Amendment, nor can the government be a tool to impinge upon rights guaranteed by it. This has implications for both criminal and civil proceedings. In criminal proceedings, the full weight of government seeks to punish an individual. In civil proceedings, which are often between private parties, it is government that runs the courts which resolve these disputes. The First Amendment still applies, though to a different degree.

Three categories of speech and government action

It is helpful to think how particular speech might fall into one of three categories regarding what government can and cannot do:

Speech that might be criminally actionable (subject to a successful criminal prosecution, such as harassment, stalking, menacing, or part of another crime).
Speech that might be civilly actionable (e.g., subject to a successful civil suit for defamation, or invasion of privacy, infliction of emotional distress, etc.),
Fully protected free speech, from which no successful legal action (criminal or civil) can be brought,

Note that these categories are about what government can (or cannot) do. Often (but not always) annoying and unfriending speech is protected from government consequences by the First Amendment. The diagram here lays this out roughly and we see how large portions of all speech, annoying speech, and unfriending speech are protected.

Separate from the question of government action are private consequences — what a private party might think or do as a result of what we say. Our speech can always have private consequences, and that falls outside of the First Amendment.

1. Potentially “criminal” speech

This is a very small category of speech. Here are some examples of speech that might be the proper subject of a criminal prosecution:

Menacingly stating “Give me your wallet or I’ll kill you”.
Other words that are part of a criminal act.
Falsely shouting “Fire!” or “Bomb!” in a crowded theatre causing panic and injury.
Saying words that incite violence or a riot.

2. Potentially civilly actionable speech

This is a small category, but larger than the prior. Civil lawsuits involving speech also face First Amendment scrutiny. A lawsuit (civil action) for defamation (libel or slander) will fail if the speech is true. Public figures face an additional hurdle because they must also show actual malice—that the writer knew the statement was false, or recklessly disregarded whether it might be false. Other civil lawsuits could include for invasion of privacy, depicting someone in a false light, or intentional infliction of emotional distress.

An example of potentially civilly actionable speech includes statements made by Alex Jones, for which he is being sued in multiple forums. Also, another potential example includes statements attacking the integrity of certain voting systems, which is also the subject of various lawsuits which claim these statements were false and defamatory.

3. Potentially “free speech” under the First Amendment

Most speech is protected free speech under the First Amendment, including expressions of opinion. By this we mean the government cannot impose any sanction for that speech, either in the criminal courts or civil courts.

Again, it would be a mistake to say that the First Amendment is a restriction upon what individuals or private organizations can do. And yet it seems that many individuals make this mistake—including some who probably know better.

4. The prior diagrams were not to scale

The prior diagrams were not to scale at all, I wanted my text to be visible and show the general overlap.

Now it is worth emphasizing that the vast majority of speech is protected by the First Amendment. A small sliver could be subject to valid civil claims, and a really tiny piece could be criminally punished. Here I show it in a slightly better scale (still not perfect) and criminal speech is just a tiny dot.

All speech can have a private consequence

I mentioned this above and created this section just to make sure the point comes across.

Any speech or expression could have many consequences from private individuals and organizations, but this would not implicate The First Amendment. The First Amendment limits government interference with speech, it protects speech, and does not limit private reaction to that speech.

Private book deals can be cancelled based on one’s speech

Imagine a book deal an author has with a publisher. They have a contract, and the contract has many terms, and the publisher is a private company.

The author commits an act or says something that is inconsistent with the publisher’s values, or perhaps inconsistent with the publisher’s bottom line if they feel the books will not sell. The contract probably has a clause to address this (perhaps called a “morals clause”).

The publisher cancels the deal and the author claims a violation of their First Amendment rights.

The author is wrong, because the publisher is a private company, protected by the First Amendment not restricted by it. The publisher has a choice whether to print or not. The First Amendment does not obligate a private company to do someone else’s bidding.

Any legal claim against the publisher would need to be grounded in contract law, not constitutional law. And as indicated, it is probable the publisher inserted a clause in the contract allowing cancellation for certain circumstances.

If the author was also a government official, their claim of First Amendment violation would make even less sense. Since the First Amendment protects us from government interference, it would make no sense to claim it allows government officials to dictate what can or cannot be published.

Social media accounts can be suspended or terminated based on one’s speech

Users of social media such as Twitter and Facebook have complained that their First Amendment rights were violated following social media platform suspension or termination. Sometimes these users are government officials, even powerful ones.

Like a book publisher, Twitter, Facebook, and other social media companies are not government actors, but private entities. The First Amendment exists as a shield to protect private entities from government restrictions on speech. The First Amendment does not restrict private entities, or make private entities obligated to do certain things.

A claim of First Amendment violation is more ironic when it is a government official seeking to direct a private platform to allow or prohibit certain speech.

Platform users accept the Terms of Service and should abide by them. Most people agree that social media platforms should have some rules about what speech is acceptable, and what speech is not, and that there should be consequences for speech that falls outside of what is allowed.

These terms are a contract, and some users may be suspended or banned if they violate them.

It is not a First Amendment issue, though many other issues do exist. Hopefully we can have reasonable debate about (1) what the platform rules should be, and (2) how those rules should be enforced.

Social media regulation?

Consumers and voters remain the key

Consumers and voters need to exercise their own diligence to obtain facts. Be resistant to anger and hate, conspiracy theories, propaganda and lies. Decisions should be made based on facts, logic, and reason. We should vote for candidates who are truthful, and not support those who lie or who are unethical. As consumers, we make decisions about what we buy, click, watch, or scroll. All of those decisions are monetized and should be thoughtful. You can read more of my thoughts on that here.

Conclusion

This short article is for your introductory information but is not tailored to your circumstances, nor is it legal advice. Hopefully it makes some foundational concepts clear, and puts you on the road to better understanding.

Books have been written about the First Amendment, some people specialize in it, as do some law courses. This does not pretend to be the last word, feel free to continue your research.

Additional reading

First Amendment things to know
Building Better Consumers and Voters My short article about what we need to do to get better at learning facts, putting aside disinformation, and making better choices about who leads our country.
U.S. Constitution
Students, Learning, and Teaching
Communications Decency Act 47 U.S. Code § 230 – Protection for private blocking and screening of offensive material, https://www.law.cornell.edu/uscode/text/47/230
Cornell LII Wex on First Amendment, https://www.law.cornell.edu/wex/first_amendment
I walk through the diagrams in the embedded video below (or find it on YouTube at https://youtu.be/Rl-QqR7lNsE)
* The original version of this article tied First Amendment to the events of 1/6/2021 and remains here, but is not updated as frequently, lacks the diagrams, and I name names and include my opinion.

sourced

First Amendment Q&A

What is the highest law in the U.S. regarding government’s restriction of speech and expression?
- The First Amendment of the U.S. Constitution
What does the First Amendment protect against?
- The First Amendment is a limit on the powers of government to restrict speech, expression, and religion.
If a judge decides police obtained evidence unlawfully, what might the judge do?
- Suppress (exclude) the evidence pursuant to the exclusionary rule and the Fourth Amendment.
What document contains the fundamental principles underlying all U.S. laws?
- U.S. Constitution
Why are case decisions important?
- They establish law, precedent (stare decisis)
What concept describes the weight given to a prior decision by a court?
- Legal precedent (stare decisis, authority)
The First Amendment was ratified in 1791, thus is couldn’t possibly be applied to the complicated issues we face today regarding online speech. True/False
- False
The First Amendment only says what Congress cannot do, but the the Executive and Judicial branches can do whatever they want. True/False
- False

The First Amendment

Here’s the First Amendment (I added the line breaks to separate each phrase).

Congress shall make no law respecting an establishment of religion,

or prohibiting the free exercise thereof;

or abridging the freedom of speech,

or of the press;

or the right of the people peaceably to assemble,

and to petition the Government for a redress of grievances.

Interesting 1st Amendment facts and conclusions by John

Ratified 1791
Word count: 45
Words unchanged since 1791 (232 years)
Number of words written since 1791 about what these 45 words mean? Millions and probably billions!
The phrase “free speech” means totally different things to different people.
To be more precise, instead of talking about “free speech”, first consider what the First Amendment protects.
The First Amendment protects from government limitations upon speech.
Government limitations upon speech could be criminal (e.g. an arrest and criminal prosecution based on speech or expression)
Government limitations upon speech could be civil (e.g. using the power of the civil courts to make someone pay money because of their speech or expression, such as in a defamation lawsuit (libel, slander).
One of my frequent corrections is reminding students to capitalize First Amendment, since it is a proper noun.

Speech categories and my diagrams

Let’s outline a way to categorize speech, starting with the biggest category (everything) and then smaller and smaller subsets of that.

I think my diagrams help categorize different types of speech, and what consequences might result from that speech. Think of these six categories.

All speech (any speech or expression)
Annoying speech (speech that annoys at least one person)
Unfriending speech (speech that annoys a person enough that they take some type of action, like their speaking, unfriending, boycotting, etc.)
Protected speech (speech that is protected by the First Amendment in some way)
Civilly actionable speech (a very small subset of the above, speech that someone could sue for and make the person pay money in damages)
Criminally actionable speech (a tiny, infinitesimal subset of the above, speech that could get someone arrested and prosecuted).

Within those six categories, three relate to government consequence, or not:

Protected speech
Civilly actionable speech
Criminally actionable speech.

John’s diagram part 1 – the categories

Here we show the five main categories, but they are not to scale, they are big enough so you can see the color scheme, the labels, and a little bit of description.

The categories are:

All speech
Annoying speech (might annoy someone)
Unfriending speech
Civilly actionable speech
Criminally actionable speech

John’s diagram part 2 – “Protected speech”

Now we are highlighting “protected speech” with this diagram.

Of course, this is a bit of a simplification.

Note that certain speech might be “protected” from any criminal prosecution, but fair game for a civil litigation.

Remember the key point which is protection from government interference.

Just because speech is protected from government interference does not mean the speech can be made without any type of consequences at all. People might protest, boycott, and etc.

We can debate “cancel culture”, but if we are talking about the First Amendment, we need to remember the First Amendment is about what government can do, not about what “society” and individuals can or should do.

John’s diagram part 3 – closer to scale!

This diagram is a little bit closer to scale.

The main takeaway here is the vast majority of speech is protected by the First Amendment. A small sliver could be subject to valid civil claims, and a really tiny piece could be criminally punished.

Let’s get lawyerly

[This section is a work in progress]

Court decisions and the law need a process for deciding whether statements are criminally actionable or civilly actionable. And for deciding whether a government action regarding speech is lawful or violates the First Amendment.

So here are some principles.

Is the government restriction on speech “content neutral” or “content based”?
- Content neutral means the restriction does not depend on what the content of the speech is
- Content based means the restriction is about certain types of speech
Certain speech restrictions will get “strict scrutiny” by the courts
If the government restriction on speech is not content neutral, it needs to be narrowly tailored to serve a significant government interest, and will get strict scrutiny
Government may restrict or punish speech that presents a “clear and present danger” or “imminent” danger
“Fighting words” are not protected speech. Fighting words are words that inflict injury or tend to incite an immediate breach of the peace. (Chaplinksy v. New Hampshire, 1942)
Defamation: A civil cause of action for defamation. Defamation can include libel (written speech) or slander (spoken). A plaintiff must establish that the defendant said something false, and that it caused financial harm (damages). If the plaintiff is a public figure, they must also show actual malice.

First Amendment Chronology and Case Progression

[This section is a work in progress]

An evolution of law and interpretation.

First Amendment ratified in 1791

Interesting concepts and cases that touch upon the First Amendment

New York Times Co. v. Sullivan, 376 U.S. 254 (1964). In this civil defamation case, the U.S. Supreme Court provides greater protection for speech about public officials and public figures, requiring a defamation case to show “actual malice”. Actual malice meaning the person knew what they said was false, or said it with a reckless disregard for whether it was false.

Brandenburg v. Ohio, 395 U.S. 444 (1969). In this criminal case, the U.S. Supreme Court limits what speech can be charged criminally as an incitement to violence, requiring intent and a likelihood of imminent lawless action.

There is a lot of speech out there

There is a lot of speech out there, and a lot of it contains false information, conspiracy theories, hateful speech, criminal speech, and more. Whether for profit, political gain, nation-state advantage or simple ignorance, there is lots of propaganda, misinformation, and disinformation. source

Anti Slapp Law Resources:

Anti-SLAPP Law in California

Anti-SLAPP and Free Speech in Defamation & Emotional Distress Cases

Attorney Liability for Meritless Litigation Leading to Harm

Court tosses disbarred lawyer’s suit over newspaper article

California Supreme Court Confirms that the “anti-SLAPP” Statute Applies to Claims of Discrimination and Retaliation

Anti-SLAPP Law Cases – Case Law Summaries & Citings

Free Speech, the First Amendment, and Social Media

How Anti-SLAPP Laws Protect Your Right to Free Speech

Code of Civil Procedure – Section 425.16 California’s Anti-SLAPP Law

Epic SCOTUS Decisions

The Truth News — Fri, 24 Jan 2025 07:33:11 +0000

https://goodshepherdmedia.net/wp-content/uploads/2022/08/Tom-Petty-And-The-Heartbreakers-I-Wont-Back-Down.mp3

Epic SCOTUS Decisions

To learn more about the awesome new ruling that allows for going after a tyrant government office or government officer read below 2022 ruling!!!!

20-659 Thompson v. Clark (04-04-2022) – Suing the Government Officially Personally tapping into their financial life legally

NOW, AS OF APRIL 4, 2022 YOU HAVE A RIGHT UNDER FEDERAL LAW TO SUE FOR YOUR MALICIOUS CRIMINAL PROSECUTION.
FEDERAL MALICIOUS PROSECUTION LAW FROM 1994 TO 2017

Pro$ecutor‘$ Duty to the citizen

20-659 Thompson v. Clark (04-04-2022) – Suing the Government Officially Personally tapping into their financial life legally

In its landmark decision, Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), the U.S. Supreme Court held that federal officials can be sued personally for money damages for on-the-job conduct that violates the Constitution. Cases in which federal employees face personal liability cut across everything the government does in all three branches of government. Whether they are engaging in every-day law enforcement, protecting our borders, addressing national security, or implementing other critical government policies and functions, federal employees of every rank face the specter of personal liability.

This ruling has a complexity to it, that does not favor a malicious prosecutor or police force. it holds them accountable! New Supreme Court Ruling makes it easier to sue police when criminal charges are dropped or dismissed. This hold the prosecutor accountable because an attorney has a fiduciary duty to his client, meaning that a relation “exist[s] between parties to a transaction wherein one of the parties is duty bound to act with the utmost good faith in the benefit of the other party. Such a relation ordinarily arises when a confidence is reposed by one person in the integrity of another, and in such a relation the party in whom the confidence is reposed, if he [or she] voluntarily accepts or assumes to accept the confidence, can take no advantage from his [or her] acts relating to the interest of the other party without the latter’s knowledge or consent. . . . ”

An attorney may not seek, accept or continue employment where it is not substantiated by probable cause, thus an attorney may not prosecute any case that is not well – 1 Cal. Rules Prof. Conduct, Rule 1-400. 2 Id. 3 McKinnery State Bar, 62 Cal.2d 194, 196 (1964); Culter v. State Bar of California, 71 Cal.2d 241, 249 (1969); see also Coulello v. State of California, 45 Cal.2d 57 (1955); Hallinan v. State Bar of California, 33 Cal.2d 246 (1948). Clearly, this duty applies not only with reference to the client but also with regard to the court, opposing counsel. 4 Cal. Rules Prof. Conduct, Rule 3 -200; Cal. Bus. & Prof. Code

6068(c). The ABA Model Rules of Professional Conduct, Rule 3.1 & 4.4, also impose a duty to the legal system which requires both that the
attorney bring only meritorious claims and that they not use inappropriate means in the representation of their client that embarrass, bur den, delay or violate legal rights.

Barbara A. v. John G., 145 Cal.App.3d 369 (1983) (citing Herbert v. Lankershim, 9 Cal.2d 409, 483 (1937); Bacon v. Soule, 19 Cal.App. 428, 434 (1912)

Zamos v. Stroud

California Supreme Court, 2004
32 Cal.4th 958, 12 Cal.Rptr.3d 54, 87 P.3d 802

The tort of malicious prosecution includes continuing to prosecute a lawsuit discovered to lack probable cause. (This decision expands the tort, which previously was limited to commencing an action without probable cause.) Evidence to this effect is sufficient to defeat a special motion to strike a complaint for malicious prosecution.

learn about how NOT TO violate your employers rights, after all civil servants work for the people, the tax payer. Got it DA Federal Civil Right$ $tatute$

Thompson vs Clark new-supreme-court-ruling-makes-it-easier-to-sue-police/

California Supreme Court Rules: Text Messages Sent on Private Government Employees Lines $ubject to Open Records Requests

Other Pro$ecutor Caselaw:

NOW, AS OF APRIL 4, 2022 YOU HAVE A RIGHT UNDER FEDERAL LAW TO SUE FOR YOUR MALICIOUS CRIMINAL PROSECUTION.

FEDERAL MALICIOUS PROSECUTION LAW FROM 1994 TO 2017

THE NINTH CIRCUIT COMES TO THE RESCUE AND REFUSES TO FOLLOW THE CALIFORNIA COURTS OF APPEAL IN THEIR AD NAUSEUM EXPANSION OF MALICIOUS PROSECUTION IMMUNITY UNDER SECTION 821.6.

On July 5, 2016, the Ninth Circuit handed down the seminal case of Garmon v. Cty. of Los Angeles, 828 F.3d 837, 847 (9th Cir. 2016), which rejected the California Court of Appeal’s ad nauseam expansion of Section 821.6 immunity and refused to immunize police officers pursuant to that section. In that Opinion, the Ninth Circuit held that they are only bound to follow state law on state law issues when either the highest court in a state (i.e. the California Supreme Court on California law) has decided that issue, or, when the state Courts of Appeals have decided an issue and the federal court finds that the state Supreme Court would have held otherwise. In reaching that holding that Ninth Circuit Court of Appeals held that the California Supreme Court already interpreted [California Government Code] section 821.6 as ‘confining its reach to malicious prosecution actions.’ “Sullivan v. County of Los Angeles, 12 Cal.3d 710, 117 Cal.Rptr. 241, 527 P.2d 865, 871 (1974), and that in their opinion, the California Supreme Court would adhere to Sullivan, notwithstanding many Opinions of the California Courts of Appeal holding otherwise. Accordingly, the state of the law is that if you have the same case with the same parties and your case is in a California state court, that Section 821.6 immunizes many actions of peace officers other than malicious prosecution, but if you are in federal court, Section 821.6 immunity only immunizes claims for malicious prosecution under California state law.

NOW, AS OF APRIL 4, 2022 YOU HAVE A RIGHT UNDER FEDERAL LAW TO SUE FOR YOUR MALICIOUS CRIMINAL PROSECUTION.

FEDERAL MALICIOUS PROSECUTION LAW FROM 1994 TO 2017

On the basis of dicta expressed by the plurality opinion in Albright v. Oliver, 510 U.S. 266 (1994), there has been a political and practical acceptance of a federal constitutional right to be free of a malicious criminal prosecution; a frame-up by state actors.

In Albright v. Oliver, 510 U.S. 266 (1994), the U.S. Supreme Court held that although a malicious criminal prosecution is not a 14th Amendment substantive due process violation, that is might be considered an unreasonable seizure of one’s person under the 4th Amendment to the U.S. Constitution, if the subsequent malicious prosecution was accompanied by the actual physical arrest of the person.

In reality, these words were crafted by the Supreme Court to permit persons who are falsely and maliciously accused of a crime by the police that resulted in a bogus criminal prosecution, to sue the police who attempted to frame them. It’s judicial “newspeak“.

If there is anything that would constitute what the courts call substantive due process (i.e. outrageous police conduct that shocks the conscience), attempting to frame an innocent is it. However, the Supreme Court could not agree on whether a malicious criminal prosecution was a substantive due process violation in Albright v. Oliver, but the Justices did not want to leave one who the police attempted to frame without a remedy.

Accordingly, in Manuel v. City, of Joliett, 580 U.S. _____ (2017), the Supreme Court held that one who was physically arrested and confined in custody by way of the false arrest of a police officer, can obtain damages under 42 U.S.C. § 1983 for that person’s continued confinement in jail, after the point in time when the District Attorney (prosecutor) formally filed criminal charges against the person. In other words, the accused person can collect damages for being kept in jail before trial, pursuant to criminal charges, filed by the prosecutor, that were procured by the arresting police officer having authored a false police report, that the prosecutor relied upon in deciding to file the very criminal charges that kept the false accused person in jail before trial.

However, this still didn’t establish a Naked Constitutional Tort of a Malicious Criminal Prosecution; only a damages remedy for a false arrest, and for confinement in jail after the point in time when the prosecutor formally filed criminal charges against the confined person.

Following both Albright v. Oliver and Manuel v. City of Joliet, most United States District Courts and the United States Courts of Appeals (the federal intermediate level appellate courts) permitted a Section 1983 remedy for a malicious criminal prosecution by a peace officer. The First, Second, and Eleventh Circuits composed the “Tort Circuits,” wherein plaintiffs pleading malicious prosecution claims under Section 1983, were required to satisfy the common law elements of a malicious prosecution claim in addition to proving a constitutional violation. The “Constitutional Circuits”—the Fourth, Fifth, Seventh, and Tenth— concentrated on whether a constitutional violation exists.

Most of the Circuits of the United States Courts of Appeals, allowed for an aggrieved person the right to sue for being subjected to a malicious criminal prosecution, federal remedy for the same, via 42 U.S.C. § 1983. They did so, on various theories, since the right to be free from a malicious criminal prosecution is not described in the federal Constitution, but the pure evil and outrageousness of such government action compels appellate judges to find some Constitutional foundation for that right, in order to allow a person who the government attempted to frame, some sort of remedy.

Although sister circuits categorized the Third Circuit as a “Tort Circuit”, the Third Circuit more recently acknowledged that “[o]ur law on this issue is unclear”; however, it continued to encourage plaintiffs to address each common law element. Similarly, the Sixth Circuit has avoided defining the required elements of a claim, although it appears to recognize a Fourth Amendment right against malicious prosecution and continued detention without probable cause. The Ninth Circuit lies on both sides of the divide; seemingly turning on whether they want the malicious prosecution plaintiff to prevail.

In Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002.) held that a malicious criminal prosecution was a naked constitutional tort, and was actionable under 42 U.S.C. § 1983 under the 4th Amendment. They just said it, basically out of thin air.

The Ninth Circuit also continued its pre-Galbraith malicious prosecution jurisprudence and held that in in addition to constituting a 4th Amendment violation, that one could sue for a malicious criminal prosecution if the prosecution was brought to deprive the innocent of some other constitutional right, such as attempting to frame an innocent in retaliation for protected exercise of First Amendment free speech, or, as a naked constitutional tort. See, Awabdy v. City of Adelanto, 368 F.3d 1062, 1069–72 (9th Cir. 2004.) i

FEDERAL LAW NOW PROVIDES A REMEDY FOR A MALICIOUS CRIMINAL PROSECUTION.

In Thompson v. Clark, 596 U.S. _______ (April 4, 2022) for the first time in the history of the Americann Republic, the U.S. Supreme Court finally held that there is a Constitutional Tort of Malicious Criminal Prosecution. The Supreme Court also went on to hold that in order to sue for a Malicious Criminal Prosecution, that the underlying criminal action only need not result in a conviction of the accused for the accused (and now plaintiff), for the underlying criminal case to be considered to be “favorably terminated”; a “favorable termination” of the underlying criminal case being a required element of that claim.

Although under California law you may not recover damages for your malicious criminal prosecution because of immunity provided in Cal. Gov’t Code § 821.6 (See, Asgari v. City of Los Angeles, 15 Cal. 4th 744 (1997), at least now there is a federal remedy for the police attempting to frame you; finally.

https://steeringlaw.com/police-misconduct-articles/can-you-sue-the-police-for-malicious-criminal-prosecutions/

Constitutional Tort Law and Legal Definition

Constitutional torts are violation of one’s constitutional rights by a government servant. Constitutional tort actions are brought under 42 USCS § 1983 against government employees seeking damages for the violation of federal constitutional right, particularly those arising under the Fourteenth Amendment and the Bill of Rights.

42 USCS § 1983 reads as follows:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the U.S. or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.”

Introducing the DA’s & Cops TEXTs & EMAIL as Digital Evidence

California Supreme Court Rules: Text Messages Sent on Private Government Employees Lines Subject to Open Records Requests

City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government Employees

Employer$ Beware: La $upreme Court Open$ Line for Direct Negligence Claim$ from Employee Action$

Malicious Prosecution / Prosecutorial Misconduct – Know What it is!

New Supreme Court Ruling Makes it easier to Sue PROSECUTORS & POLICE

42 U.S.C.A. Sec. 1983.” Trezevant v. City of Tampa (1984) 741 F.2d 336, hn. 5 Mattox v. U.S., 156 US 237,243. (1895) “We are bound to interpret the Constitution in the light of the law as it existed at the time it was adopted.”

S. Carolina v. U.S., 199 U.S. 437, 448 (1905).“The Constitution is a written instrument. As such, its meaning does not alter. That which it meant when it was adopted, it means now.”

SHAPIRO vs. THOMSON, 394 U. S. 618 April 21, 1969 .Further, the Right to TRAVEL by private conveyance for private purposes upon the Common way can NOT BE INFRINGED. No license or permission is required for TRAVEL when such TRAVEL IS NOT for the purpose of [COMMERCIAL] PROFIT OR GAIN on the open highways operating under license IN COMMERCE.

Murdock v. Penn., 319 US 105, (1943) “No state shall convert a liberty into a privilege, license it, and attach a fee to it.”

Shuttlesworth v. Birmingham, 373 US 262, (1969) “If the state converts a liberty into a privilege, the citizen can engage in the right with impunity.”

Miranda v. Arizona, 384 U.S. 436, (1966) “Where rights secured by the Constitution are involved, there can be no rule making or legislation, which would abrogate them.”

Norton v. Shelby County, 118 U.S. 425, (1886) “An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed.” Miller v. U.S., 230 F.2d. 486 ,489 “The claim and exercise of a Constitutional right cannot be converted into a crime.”

Brady v. U.S., 397 U.S. 742, 748,(1970) “Waivers of Constitutional Rights, not only must they be voluntary, they must be knowingly intelligent acts done with sufficient awareness.”

Brady v. Maryland, 373 U.S. 83, 87 (1963); Giglio v. United States, 405 U.S. 150, 154 (1972). The law requires the disclosure of exculpatory and impeachment evidence when such evidence is material to guilt or punishment. Brady, 373 U.S. at 87; Giglio, 405 U.S. at 154. Because they are Constitutional obligations, Brady and Giglio evidence must be disclosed regardless of whether the defendant makes a request for exculpatory or impeachment evidence.

Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401 (1958). “No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it.” The constitutional theory is that we the people are the sovereigns, the state and federal officials only our agents.”

Alexander v.Bothsworth, 1915. “Party cannot be bound by contract that he has not made or authorized. Free consent is an indispensable element in making valid contracts.”

Hale v. Henkel 201 U.S. 43 at 89 (1906) HALE v. HENKEL 201 U.S. 43 at 89 (1906) Hale v. Henkel was decided by the united States Supreme Court in 1906. The opinion of the court states: “The “individual” may stand upon “his Constitutional Rights“ as a CITIZEN. He is entitled to carry on his “private” business in his own way. “His power to contract is unlimited.” He owes no duty to the State or to his neighbors to divulge his business, or to open his doors to an investigation, so far as it may tend to incriminate him. He owes no duty to the State, since he receives nothing there from, beyond the protection of his life and property. “His rights” are such as “existed” by the Law of the Land (Common Law) “long antecedent” to the organization of the State”, and can only be taken from him by “due process of law”, and “in accordance with the Constitution.” “He owes nothing” to the public so long as he does not trespass upon their rights.”

Hale v. Henkel 201 U.S. 43 at 89 (1906) Hale v. Henkel is binding on all the courts of the United States of America until another Supreme Court case says it isn’t. No other Supreme Court case has ever overturned Hale v. Henkel None of the various issues of Hale v. Henkel has ever been overruled Since 1906, Hale v. Henkel has been cited by the Federal and State Appellate Court systems over 1,600 times! In nearly every instance when a case is cited, it has an impact on precedent authority of the cited case. Compared with other previously decided Supreme Court cases, no other case has surpassed Hale v. Henkel in the number of times it has been cited by the courts. Basso v. UPL, 495 F. 2d 906 Brook v. Yawkey, 200 F. 2d 633

None of the various issues of Hale v. Henkel has ever been overruled Since 1906, Hale v. Henkel has been cited by the Federal and State Appellate Court systems over 1,600 times! In nearly every instance when a case is cited, it has an impact on precedent authority of the cited case. Compared with other previously decided Supreme Court cases, no other case has surpassed Hale v. Henkel in the number of times it has been cited by the courts. Basso v. UPL, 495 F. 2d 906 Brook v. Yawkey, 200 F. 2d 633

Elliot v. Piersol, 1 Pet. 328, 340, 26 U.S. 328, 340 (1828) Under federal Law, which is applicable to all states, the U.S. Supreme Court stated that “if a court is without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void, and form no bar to a recovery sought, even prior to a reversal in opposition to them. They constitute no justification and all persons concerned in executing such judgments or sentences are considered, in law, as trespassers.” Griffin v. Mathews, 310 Supp. 341, 423 F. 2d 272 Hagans v. Lavine, 415 U.S. 528 Howlett v. Rose, 496 U.S. 356 (1990) Federal Law and Supreme Court Cases apply to State Court Cases. Sims v. Aherns, 271 SW 720 (1925) ”

20-659 Thompson v. Clark (04-04-2022) – Suing the Government Officially Personally tapping into their financial life legally

thompson-v-clark-364-f-supp-3d-178/

thompson-v-clark-holds-fourth-amendment-claim-under-%c2%a7-1983-for-malicious-prosecution

Sullivan v. County of Los Angeles – 12 Cal.3d 710 – Mon, 11_04_1974 – MALICIOUS PROSECUTOR & OFFICER

Section 815.2 provides: "(a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity
within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee
or his personal representative.

[8] Malicious prosecution "consists of initiating or procuring the arrest and prosecution of another under lawful process,
    but from malicious motives and without probable cause. ... [Italics in original.] The test is whether the defendant was
    actively instrumental in causing the prosecution." (4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 242, pp. 2522-2523.)
    Cases dealing with actions for malicious prosecution against private persons require that the defendant has at least sought
    out the police or prosecutorial authorities and falsely reported facts to them indicating that plaintiff has committed a crime.
    (Rupp v. Summerfield (1958) 161 Cal.App.2d 657, 663 [326 P.2d 912]; Centers v. Dollar Markets (1950) 99 Cal.App.2d 534, 544-545 [222 P.2d 136].)
    Similarly the suits against government employees or entities cited by the Senate Committee in commenting upon section 821.6
    all involve the government employees' acts in filing charges or swearing out affidavits of criminal activity against the plaintiff.
    fn. 9 No case has predicated a finding of malicious prosecution on the holding of a person in jail beyond his term or beyond the completion
    of all criminal proceedings against him.United States v. Wiltberger

cited https://goodshepherdmedia.net/sullivan-v-county-of-los-angeles/

Bias – Removal of Prosecutor People v. Superior Court (Greer)

Abuse – Removal of Prosecutor People v. Superior Court (Greer)

Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,

403 U.S. 388 (1971), the U.S. Supreme Court held that federal officials can be sued personally for money damages for on-the-job 
conduct that violates the Constitution. Cases in which federal employees face personal liability cut across everything the government
does in all three branches of government. Whether they are engaging in every-day law enforcement, protecting our borders,
addressing national security, or implementing other critical government policies and functions, federal employees of every rank face the
specter of personal liability.

Spencer v. Peters

After several unsuccessful appeals, the relevant facts of which will be discussed throughout this order, Mr. Spencer's prison 
sentence was commuted to community supervision in 2004 by then Governor Locke. Dkt. 63-18. Following his release from prison.

This is a great hearing you click below you can hear the proceedings audio and discussion. This an excellent source for young hungry new attorneys! good luck in your career, work hard, good ethics, good nature, respect God in your work and doings just as you steer clear of harming attorney client privilege respect the attorney God privilege and do right by him! use your fantastic mind to work around the obstacles while still respecting God and his expectations he has for all of us. Live right, you only live once! YOLO is not a reason to go nuts, its a reason to straighten ones morals inline with the creator before your time is up. Now that is a lottery ticket you don’t want to forget buy, heaven beats anything you get here…. and you pay for it by doing good here now for God!
spencer-v-peters/

Gerardo Rodarte v. Joseph Gutierrez – arises from the arrest and pretrial detention

you can read more on this gerardo-rodarte-v-joseph-gutierrez/

Griffin v. Mathews, 310 Supp. 341, 423 F. 2d 272 Hagans v. Lavine, 415 U.S. 528 Howlett v. Rose, 496 U.S. 356 (1990) Federal Law and Supreme Court Cases apply to State Court Cases. Sims v. Aherns, 271 SW 720 (1925) “The practice of law is an occupation of common right.”

Employers Beware: La Supreme Court Opens Line for Direct Negligence Claims from Negligent Employee Actions

read case Martin v. Thomas et al. 2022 – Opens Line for Direct Negligence Claims from Employee Actions

Excerpts taken from SCOTUS around Robin v. Hardaway

Supreme court cases from digging around Robin v. Hardaway 1790.
Biblical Law at “Common Law” supersedes all laws, and “Christianity is custom, custom is Law.”

Griffin v. Mathews, 310 Supp. 341, 423 F. 2d 272 Hagans v. Lavine, 415 U.S. 528 Howlett v. Rose, 496 U.S. 356 (1990) Federal Law and Supreme Court Cases apply to State Court Cases. Sims v. Aherns, 271 SW 720 (1925) “The practice of law is an occupation of common right.”

424 F.2d 1021 US v. Horton R. PRUDDEN,No. 28140. . United States Court of Appeals, Fifth Circuit.April 1970 Silence can only be equated with fraud where there is a legal or moral duty to speak or where an inquiry left unanswered would be intentionally misleading.

DA Caitlyn Harrington did this to me above she is the dumb cunt i called her

U.S. v. Tweel, 550 F. 2d. 297, 299, 300 (1977) Silence can only be equated with fraud when there is a legal and moral duty to speak or when an inquiry left unanswered would be intentionally misleading. We cannot condone this shocking conduct… If that is the case we hope our message is clear. This sort of deception will not be tolerated and if this is routine it should be corrected immediately.

Morrison v. Coddington, 662 P. 2d. 155, 135 Ariz. 480(1983). Fraud and deceit may arise from silence where there is a duty to speak the truth, as well as from speaking an untruth. In regard to courts of inferior jurisdiction, “if the record does not show upon its face the facts necessary to give jurisdiction, they will be presumed not to have existed.”

NAFFE v. FREY It is uncontested that Naffe is domiciled in Massachusetts, Frey is domiciled in California, and the County of Los Angeles is a citizen of California for purposes of diversity jurisdiction, see Moor v. Alameda Cnty., 411 U.S. 693, 717–18, 721–22 (1973). The parties are thus “completely diverse.” See Strawbridge v. Curtiss, 7 U.S. 267, 267–68 (1806).

Norman v. Zieber, 3 Or at 202-03 US v Will, 449 US 200,216, 101 S Ct, 471, 66 LEd2nd 392, 406 (1980) Cohens V Virginia, 19 US (6 Wheat) 264, 404, 5LEd 257 (1821) “When a judge acts where he or she does not have jurisdiction to act, the judge is engaged in an act or acts of treason.”

“The state citizen is immune from any and all government attacks and procedure, absent contract.” see, Dred Scott vs. Sanford, 60 U.S. (19 How.) 393 or as the Supreme Court has stated clearly, “…every man is independent of all laws, except those prescribed by nature. He is not bound by any institutions formed by his fellowmen without his consent.” CRUDEN vs. NEALE, 2 N.C. 338 2 S.E. 70

FRAUD$ BY GOVERNMENT

McNally v. U.S., 483 U.S. 350, 371-372 (1987), McNally v. U.S., 483 U.S. 350, 371-372 (1987), Quoting U.S. v. Holzer, 816 F.2d. 304, 307: “Fraud in its elementary common law sense of deceit – and this is one of the meanings that fraud bears in the statute, see United States v. Dial, 757 F.2d 163, 168 (7th Cir. 1985) – includes the deliberate concealment of material information in a setting of fiduciary obligation. A public official is a fiduciary toward the public, including, in the case of a judge, the litigants who appear before him, and if he deliberately conceals material information from them he is guilty of fraud. BURDEN OF PROOF ”

The law creates a presumption, where the burden is on a party to prove a material fact peculiarly within his knowledge and he fails without excuse to testify, that his testimony, if introduced, would be adverse to his interests.” citing Meier v. CIR, 199 F 2d 392, 396 (8th Cir. 1952) quoting 20 Am Jur, Evidence, Sec 190, page 193 Notification of legal responsibility is “the first essential of due process of law”. See also:U.S. v. Tweel, 550 F.2d.297. “Silence can only be equated with fraud where there is a legal or moral duty to speak or when an inquiry left unanswered would be intentionally misleading.” Clearfield Doctrine “Governments descend to the Level of a mere private corporation, and take on the characteristics of a mere private citizen…where private corporate commercial paper [Federal Reserve Notes] and securities [checks] is concerned. … For purposes of suit, such corporations and individuals are regarded as entities entirely separate from government.”

Please feel Free to read the excellent pamphlet to help you secure your RIGHT to contracts!

FREEDOM OF CONTRACT by David E. Bernstein, George Mason University School of Law

and here is the Amendment to OUR US LAW that GRANTS YOU THESE RIGHTS

Overview of Contract Clause

Lochner v. New York The general right to make a contract in relation to his business is part of the liberty protected by the Fourteenth Amendment, and this includes the right to purchase and sell labor, except as controlled by the State in the legitimate exercise of its police power.Lochner v. New York The general right to make a contract in relation to his business is part of the liberty protected by the Fourteenth Amendment, and this includes the right to purchase and sell labor, except as controlled by the State in the legitimate exercise of its police power.

In Leiberg v. Vitangeli, 70 Ohio App. 479, 47 N.E. 2d 235, 238-39 (1942) “These constitutional provisions employ the word ‘person,’ that is. anyone whom we have permitted to peaceably reside within our borders may resort to our courts for redress of an injury done him in his land, goods, person or reputation. The real party plaintiff for whom the nominal plaintiff sues is not shown to have entered our land in an unlawful manner. We said to her, you may enter and reside with us and be equally protected by our laws so long as you conform thereto. You may own property and our laws will protect your title. “We, as a people, have said to those of foreign birth that these constitutional guaranties shall assure you of our good faith. They are the written surety to you of our proud boast that the United States is the haven of refuge of the oppressed of all mankind.” Court will assign to common-law terms their common-law meaning unless legislature directs otherwise.

People v. Young (1983) 340 N.W.2d 805,418 Mich. 1. Common law, by constitution, is law of state.

Beech Grove Inv. Co. v. Civil Rights Com’n (1968) 157 N.W.2d 213, 380 Mich. 405. “Common law” is but the accumulated expressions of various judicial tribunals in their efforts to ascertain what is right and just between individuals in respect to private disputes. Semmens v. Floyd Rice Ford, Inc. (1965) 136 N.W.2d 704,1 Mich.App. 395.

The common law is in force in Michigan, except so far as it is repugnant to, or inconsistent with, the Constitution or statutes of the state. Stout v. Keyes (1845) 2 Doug. 184, 43 Am. Dec. 465.

“The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution, provided such limitations and restrictions on the powers of its particular government, as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes. If these propositions be correct, the fifth amendment must be understood as restraining the power of the general government, not as applicable to the states.” Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another. seems to be intolerable on any country where freedom prevails, as being the essence of slavery itself. See: Yick Wo v. Hopkins ,118 U.S. 356 (1886).

“He is not to substitute even his juster will for theirs; otherwise it would not be the ‘common will’ which prevails, and to that extent the people would not govern.” See: Speech by Judge Learned Hand at the Mayflower Hotel in Washington, D.C. May 11,1919, entitled, “Is there a Common Will?”

“… The Congress cannot revoke the Sovereign power of the people to override itself as thus declared.” See: Perry v. United States , 294 U.S. 330, 353 (1935).

“In the United States, Sovereignty resides in the people, who act through the organs established by the Constitution.” See: Chisholm v. Georgia, 2 Dall 419, 471; Penhallow v. Doane’s Administrators, 3 Dall 54, 93; McCullock v. Maryland, 4 Wheat 316, 404, 405; Yick Wo v. Hopkins ,118 U.S. 356, 370 (1886).

“As men whose intentions require no concealment, generally employ the words which most directly and aptly express the ideas they intent to convey; the enlightened patriots who framed our constitution and the people who adopted it must be understood to have employed the words in their natural sense, and to have intended what they have said.” See: Gibbons v. Ogden, 27 U.S. 1

No legislature can bargain away the public health or the public morals. The people themselves cannot do it. much less their servants. See: New Orleans Gas Co v. Louisiana Light Co ,115 U.S. 650 (1885).

People are supreme, not the state. See: Waring v. the Mayor of Savannah, 60 Georgia at 93.

Strictly speaking, in our republican form of government, the absolute sovereignty of the nation is in the people of the nation: and the residuary sovereignty of each state, not granted to any of its public functionaries, is in the people of the state. See: 2 Dall. 471; Bouv. Law Diet. (1870). The theory of the American political system is that the ultimate sovereignty is in the people, from whom all legitimate authority springs, and the people collectively, acting through the medium of constitutions, create such governmental agencies, endow them with such powers, and subject them to such limitations as in their wisdom will best promote the common good. See: First Trust Co. v. Smith, 134 Neb.; 277 SW 762.

What is a constitution? It is the form of goverState v. Suttonnment, delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established.” See: Vanhorne’s Lessee v. Dorrance , 2 U.S. 304(1795).

A constitution is designated as a supreme enactment, a fundamental act of legislation by the people of the state. A constitution is legislation direct from the people acting in their sovereign capacity, while a statute is legislation from their representatives, subject to limitations prescribed by the superior authority. See: Ellingham v. Dye, 178 Ind. 336; 99 NE 1; 231 U.S. 250; 58 L. Ed. 206; 34 S. Ct. 92; Sage v. New York, 154 NY 61; 47 NE 1096.

The question is not what power the federal government ought to have, but what powers, in fact, have been given by the people…. The federal union is a government of delegated powers. It has only such as are expressly conferred upon it, and such as are reasonably to be implied from those granted. In this respect, we differ radically from nations where all legislative power, without restriction of limitation, is vested in a parliament or other legislative body subject to no restrictions except the discretion of its members. See: U.S. v. William M. Butler, 297 U.S. 1.

But it cannot be assumed that the framers of the Constitution and the people who adopted it did not intent that which is the plain import of the language used. When the language of the Constitution is positive and free from all ambiguity, all courts are not at liberty, by a resort to the refinements of legal learning, to restrict its obvious meaning to avoid hardships of particular cases, we must accept the Constitution as it reads when its language is unambiguous, for it is the mandate of the sovereign powers. See: State v. Sutton, 63 Minn. 147, 65 WX N.W., 262,101, N.W. 74; Cook v. Iverson, 122, N.M. 251.

The people themselves have it in their power effectually to resist usurpation, without being driven to an appeal in arms. An act of usurpation is not obligatory: It is not law; and any man may be justified in his resistance. Let him be considered as a criminal by the general government: yet only his fellow citizens can convict him. They are his jury, and if they pronounce him innocent, not all powers of congress can hurt him; and innocent they certainly will pronounce him, if the supposed law he resisted was an act of usurpation. See: 2 Elliot’s Debates, 94; 2 Bancroft, History of the Constitution, 267.

In this state, as well as in all republics, it is not the legislation, however transcendent its powers, who are supreme— but the people— and to suppose that they may violate the fundamental law is, as has been most eloquently expressed, to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves: that the men acting by virtue of delegated powers may do. not only what then- powers do not authorize, but what they forbid. See: Warning v. the Mayor of Savannah, 60 Georgia, P. 93.

There have been powerful hydraulic pressures throughout our history that bear heavily on the court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today. Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can “seize” and “search” him hi their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country. See: Terry v. Ohio. 392 U.S. 39 (1967).

“Personal liberty, or the Right to enjoyment of life and liberty, is one of the fundamental or natural Rights, which has been protected by its inclusion as a guarantee in the various constitutions, which is not derived from, or dependent on, the U.S. Constitution, which may not be submitted to a vote and may not depend on the outcome of an election. It is one of the most sacred and valuable Rights, as sacred as the Right to private property … and is regarded as inalienable.” 16 C.J.S., Constitutional Law, Sect.202, p.987

Sovereignty itself is. of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails., as being the essence of slavery itself.

(Yick Wo vs. Hopkins, U.S. 356 (1886). “…The Congress cannot revoke the Sovereign power of the people to override their will as thus declared.” Perry v. United States, 294 U.S. 330, 353 (1935). “In the United States, Sovereignty resides in the people, who act through the organs established by the Constitution.” Chisholm v. Georgia, 2 Dall 419, 471; Penhallow v. Doane’s Administrators, 3 Dall 54, 93; McCullock v. Maryland, 4 Wheat 316,404,405; Yick Yo v. Hopkins, 118 U.S. 356, 370.” The rights of the individuals are restricted only to the extent that they have been voluntarily surrendered by the citizenship to the agencies of government.” City of Dallas v Mitchell, 245 S.W. 944

Supreme Court Justice Bandeis eloquently affirmed his condemnation of abuses practiced by Government officials, who were defendants, acting as Government officials. In the case of Olmstead vs. U.S. 277 US 438, 48 S.Ct. 564, 575; 72 L ED 944 (1928) he declared: “Decency, security, and liberty alike demand that Government officials shall be subjected to the same rules of conduct that are commands to the Citizen. In a government of laws, existence of the government will be imperiled if it fails to obsereve the laws scruplously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a law-breaker, it breads contempt for law; it invites every man to become a law unto himself. It invites anarchy. To declare that, in the administration of the law, the end justifies the means would bring a terrible retribution. Against that pernicious doctrine, this Court should resolutely set its face.” To declare that in the administration of criminal laws the end justifies the means to declare that the government may commit crimes in order to secure the conviction of a private criminal—would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face. …And so should every law enforcement student, practitioner, supervisor, and administrator ”

State v. Manuel, North Carolina, Vol. 20, Page 121 (1838) The sovereignty has been transferred from one man to the collective body of the people – and he who before was a “subject of the king” is now “a citizen of the State”. “The People of a State are entitled to all rights which formerly belonged to the King by his prerogative.”

“In the United States the People are sovereign and the government cannot sever its relationship to the People by taking away their citizenship.” Afroyim v. Rusk, 387 U.S. 253 (1967).

“The People of a State are entitled to all rights which formerly belonged to thePiper v. PearsonKing by his prerogative.” Lansing v. Smith, 4 Wendell 9, 20 (1829)

In Europe, the executive is synonymous with the sovereign power of a state…where it is too commonly acquired by force or fraud or both…In America, however the case is widely different. Our government is founded upon Compact. Sovereignty was, and is, in the People. Glass v. The Sloop Betsy, 3 Dall 6.(1794)

It is a Maxim {an established principle} of the Common Law that when an act of Parliament is made for the public good, the advancement of religion and justice, and to prevent injury and wrong, the King shall be bound by such an act, though not named; but when a Statute is general, and any prerogative Right, title or interest would be divested or taken from the King (or the People) in such case he shall not be bound. The People vs. Herkimer, 15 Am. Dec. 379, 4 Cowen 345 (N.Y. 1825).

Chisholm v. Georgia, Dallas Supreme Court Reports, Vol. 2, Pages 471, 472 (1793) “It will be sufficient to observe briefly, that the sovereignties in Europe, and particularly in England, exist on feudal principles. That system considers the prince as the sovereign, and the people as his subjects; it regards his person as the object of allegiance… No such ideas obtain here; at the revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects… and have none to govern but themselves…”

Ex parte – Frank Knowles, California Reports, Vol. 5, Page 302 (1855) “A citizen of any one of the States of the Union, is held to be, and called a citizen of the United States, although technically and abstractly there is no such thing. To conceive a citizen of the United States who is not a citizen of some one of the States, is totally foreign to the idea, and inconsistent with the proper construction and common understanding of the expression as used in the Constitution, which must be deduced from its various other provisions.”

Manchester v. Boston, Massachusetts Reports, Vol. 16, Page 235 (1819) “The term, citizens of the United States, must be understood to intend those who were citizens of a state, as such, after the Union had commenced, and the several states had assumed their sovereignties. Before this period there was no citizens of the United States…”

Butler v. Farnsworth, Federal Cases, Vol. 4, Page 902 (1821) “A citizen of one state is to be considered as a citizen of every other state in the union.”

Douglass, Adm’r., v. Stephens, Delaware Chancery, Vol. 1, Page 470 (1821) “When men entered into a State they yielded a part of their absolute rights, or natural liberty, for political or civil liberty, which is no other than natural liberty restrained by human laws, so far as is necessary and expedient for the general advantage of the public. The rights of enjoying and defending life and liberty, of acquiring and protecting reputation and property, – and, in general, of attaining objects suitable to their condition, without injury to another, are the rights of a citizen; and all men by nature have them.”

Allodial Land Barker v Dayton 28 Wisconsin 367 (1871): “All lands within the state are declared to be allodial, and feudal tenures are prohibited. On this point counsel contended, first, that one of the principal elements of feudal tenures was, that the feudatory could not independently alien or dispose of his fee; and secondly, that the term allodial describes free and absolute ownership, … independent ownership, in like manner as personal property is held; the entire right and dominion; that it applies to lands held of no superior to whom the owner owes homage or fealty or military service, and describes an estate subservient to the purposes of commerce, and alienable at the will of the owner; the most ample and perfect interest which can be owned in land.”

[Bowers v. DeVito, U.S. Court of Appeals, Seventh Circuit, 686F.2d 616 (1882)“… there is no constitutional right to be protected by the state against being murdered by criminals or madmen. It is monstrous if the state fails to protect its residents against such predators but it does not violate the due process clause of the Fourteenth Amendment or, we suppose, any other provision of the Constitution. The Constitution is a charter of negative liberties: it tells the state to let people alone; it does not require the federal government or the state to provide services, even so elementary a service as maintaining law and order.”

Income taxes Gregory v. Helverging, 293 U.S. 465, 1935 “The legal Right of a taxpayer to decrease the amount of what otherwise would be his taxes, or altogether avoid them, by means which the law permits, cannot be doubted” 1895: In Pollock vs Farmers’ Loan & Trust Co, the Supreme Court rules that general income taxes are unconstitutional because they are unapportioned direct taxes. To this day, the ruling has not been overturned. January 24, 1916: In Brushaber vs. Union Pacific Railroad, the Supreme Court ruled: that the 16th Amendment doesn’t over-rule the Court’s ruling in the Pollock case which declared general income taxes unconstitutional; The 16th Amendment applies only to gains and profits from commercial and investment activities: The 16th Amendment only applies to excises taxes; The 16th Amendment did not Amend the U.S. Constitution; The 16th Amendment only clarified the federal governments existing authority to create excise taxes without apportionment. …the [16th] Amendment contains nothing repudiating or challenging the ruling in the Pollock Case that the word direct had a broader significance since it embraced also taxes levied directly on personal property because of its ownership, and therefore the Amendment at least impliedly makes such wider significance a part of the Constitution — a condition which clearly demonstrates that the purpose was not to change the existing interpretation except to the extent necessary to accomplish the result intended, that is, the prevention of the resort to the sources from which a taxed income was derived in order to cause a direct tax on the income to be a direct tax on the source itself and thereby to take an income tax out of the class of excises, duties and imposts and place it in the class of direct taxes… Indeed in the light of the history which we have given and of the decision in the Pollock Case and the ground upon which the ruling in that case was based, there is no escape from the Conclusion that the Amendment was drawn for the purpose of doing away for the future with the principle upon which the Pollock Case was decided, that is, of determining whether a tax on income was direct not by a consideration of the burden placed on the taxed income upon which it directly operated, but by taking into view the burden which resulted on the property from which the income was derived, since in express terms the Amendment provides that income taxes, from whatever source the income may be derived, shall not be subject to the regulation of apportionment… 1939: Congress passes the Public Salary tax, taxing the wages of federal employees.

1940: Congress passes the Buck Act authorizing the federal government to tax federal workers living in the States. 1942, Congress passes the Victory Tax under Constitutional authority to support the WWII effort. President Roosevelt proposes a voluntary tax withholding program allowing workers across the nation to pay the tax in installments. The program is a success and the number of tax payers increases from 3 percent to 62 percent of the U.S. population. 1944: The Victory Tax and Voluntary Withholding laws are repealed as required by the U.S. Constitution, however, the federal government continues to collect the tax claiming it’s authority under the 1913 income tax and the 16th Amendment. Erie Railroad v. Tompkins, 1938 Supreme Court of the United States had decided on the basis of Commercial (Negotiable Instruments) Law: that Tompkins was not under any contract with the Erie Railroad, and therefore he had no standing to sue the company. Under the Common Law, he was damaged and he would have had the right to sue. Hence, all courts since 1938 are operating in an Admiralty Jurisdiction and not Common Law courts because lawful money (silver or gold coin) does not exist. Courts of Admiralty only has jurisdiction over maritime contracts on the high seas ad navigable water ways. In Blockburger v. U.S., 284 U.S. 299 (1932), the Supreme Court held that punishment for two statutory offenses arising out of the same criminal act or transaction does not violate the Double Jeopardy Clause if ‘each provision requires proof of an additional fact which the other does not.’ Id. at 304.

Boyd v. United, 116 U.S. 616 at 635 (1885) Justice Bradley, “It may be that it is the obnoxious thing in its mildest form; but illegitimate and unconstitutional practices get their first footing in that way; namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of persons and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of the Courts to be watchful for the Constitutional Rights of the Citizens, and against any stealthy encroachments thereon. Their motto should be Obsta Principiis.”

Downs v. Bidwell, 182 U.S. 244 (1901) “It will be an evil day for American Liberty if the theory of a government outside supreme law finds lodgement in our constitutional jurisprudence. No higher duty rests upon this Court than to exert its full authority to prevent all violations of the principles of the Constitution.”

Duncan v. Missouri, 152 U.S. 377, 382 (1894) Due process of law and the equal protection of the laws are secured if the laws operate on all alike, and do not subject the individual to an arbitrary exercise of the powers of government.”

Giozza v. Tiernan, 148 U.S. 657, 662 (1893), Citations Omitted “Undoubtedly it (the Fourteenth Amendment) forbids any arbitrary deprivation of life, liberty or property, and secures equal protection to all under like circumstances in the enjoyment of their rights… It is enough that there is no discrimination in favor of one as against another of the same class. …And due process of law within the meaning of the [Fifth and Fourteenth] amendment is secured if the laws operate on all alike, and do not subject the individual to an arbitrary exercise of the powers of government.”

Kentucky Railroad Tax Cases, 115 U.S. 321, 337 (1885) “The rule of equality… requires the same means and methods to be applied impartially to all the constitutents of each class, so that the law shall operate equally and uniformly upon all persons in similar circumstances”.

Butz v. Economou, 98 S. Ct. 2894 (1978); United States v. Lee, 106 U.S. at 220, 1 S. Ct. at 261 (1882) “No man [or woman] in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government from the highest to the lowest, are creatures of the law, and are bound to obey it.”

Olmstad v. United States, (1928) 277 U.S. 438 “Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”

Mallowy v. Hogan, 378 U.S. 1 “All rights and safeguards contained in the first eight amendments to the federal Constitution are equally applicable.”

U.S. v. Lee, 106 U.S. 196, 220 1 S. Ct. 240, 261, 27 L. Ed 171 (1882) “No man in this country is so high that he is above the law. No officer of the law may set that law at defiance, with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law are bound to obey it.” “It is the only supreme power in our system of government, and every man who, by accepting office participates in its functions, is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes on the exercise of the authority which it gives.”

Ableman v. Booth, 21 Howard 506 (1859) “No judicial process, whatever form it may assume, can have any lawful authority outside of the limits of the jurisdiction of the court or judge by whom it is issued; and an attempt to enforce it beyond these boundaries is nothing less than lawless violence.”

U.S. v. Dixon, 113 S.Ct. 2849, 2856 (1993), the Court clarified the use of the ‘same elements test’ set forth in Blockburger when it over-ruled the ‘same conduct’ test announced in Grady v. Corbin, 495 U.S. 508 (1990), and held that the Double Jeopardy Clause bars successive prosecutions only when the previously concluded and subsequently charged offenses fail the ‘same elements’ test articulated in Blockburger. See also Gavieres v. U.S., 220 U.S. 338, 345 (1911)

(early precedent establishing that in a subsequent prosecution ‘[w]hile it is true that the conduct of the accused was one and the same, two offenses resulted, each of which had an element not embraced in the other’).

ENGLISH TORT LAW 61. Ashby v. White, (1703) 92 Eng. Rep. 126 (K.B.); BLACKSTONE, supra note 59, at 23. 62. 5 U.S. (1 Cranch) 137, 163-66 (1803) (“It is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law, whenever that right is invaded . . . . [F]or it is a settled and invariable principle in the laws of England, that every right, when withheld, must have a remedy, and every injury its proper redress.”).

ENGLISH TORT LAW Ashby v. White, (1703) 92 Eng. Rep. Facts Mr Ashby was prevented from voting at an election by the misfeasance of a constable, Mr White, on the apparent pretext that he was not a settled inhabitant. At the time, the case attracted considerable national interest, and debates in Parliament. It was later known as the Aylesbury election case. In the Lords, it attracted the interest of Peter King, 1st Baron King who spoke and maintained the right of electors to have a remedy at common law for denial of their votes, against Tory insistence on the privileges of the Commons. Sir Thomas Powys (c. 1649-1719) defended William White in the House of Lords. The argument submitted was that the Commons alone had the power to determine election cases, not the courts. Judgment Holt CJ was dissenting in his judgment in the High Court, but this was upheld by the House of Lords. He said at pp 273-4: “ “If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it, and, indeed it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal… And I am of the opinion that this action on the case is a proper action. My brother Powell indeed thinks that an action on the case is not maintainable, because
there is no hurt or damage to the plaintiff, but surely every injury imports a damage, though it does not cost the party one farthing, and it is impossible to prove the contrary; for a damage is not merely pecuniary but an injury imports a damage, when a man is thereby hindered of his rights. To allow this action will make publick officers more careful to observe the constitution of cities and boroughs, and not to be so partial as they commonly are in all elections, which is indeed a great and growing mischief, and tends to the prejudice of the peace of the nation.

[U.S. v. Rogers, 23 F. 658 (D.C.Ark. 1885)] In a criminal proceeding lack of subject matter jurisdiction cannot be waived and may be asserted at any time by collateral attack.

[U.S. v. Gernie, 228 F.Supp. 329 (D.C.N.Y. 1964)] Jurisdiction of court may be challenged at any stage of the proceeding, and also may be challenged after conviction and execution of judgment by way of writ of habeas corpus.

[U.S. v. Anderson, 60 F.Supp. 649 (D.C.Wash. 1945)] The United States District Court has only such jurisdiction as Congress confers. [Eastern Metals Corp. v. Martin] [191 F.Supp 245 (D.C.N.Y. 1960)]

City of Canton v. Harris, 498 U.S. 378 (1989) “failure to train” train its officers adequately with respect to implementing the following Department policies:

FLYER & NEWS WEBSITE LAW

Flyers US constitutional rights, Freedom of Speech & Press

There shall be no Law passed to abridge or restrain freedom of speech or the press. Freedom of speech encompasses all manner of expression, both verbal and non-verbal

U.S. Supreme Court

Miller v. US, 230 F 486 at 489 The claim and exercise of a Constitutional right cannot be converted into a crime.
Marbury v. Madison Chief Justice John Marshall Marbury v. Madison, 5 US (1Cranch) 137, 174, 176 (1803) All laws which are repugnant to the Constitution are null and void.
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), was a landmark U.S. Supreme Court case that established the principle of judicial review in the United States, meaning that American courts have the power to strike down laws and statutes that they find to violate the Constitution of the United States. Marbury v. Madison, 5 US 137,(1803) “The Constitution of these United States is the supreme law of the land. Any law that is repugnant to the Constitution is null and void of law.” Marbury v. Madison, 5 U.S. (2 Cranch) 137, 180 (1803) “… the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument.”
Since the 14th Amendment to the Constitution states “NO State (Jurisdiction) shall make or enforce any law which shall abridge the rights, privileges, or immunities of citizens of the United States nor deprive any citizens of life, liberty, or property, without due process of law, … or equal protection under the law”, this renders judicial immunity unconstitutional. “In declaring what shall be the supreme law of the land, the Constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank”. “All law (rules and practices) which are repugnant to the Constitution are VOID”. Since the 14th Amendment to the Constitution states “NO State (Jurisdiction) shall make or enforce any law which shall abridge the rights, privileges, or immunities of citizens of the United States nor deprive any citizens of life, liberty, or property, without due process of law, … or equal protection under the law”, this renders judicial immunity unconstitutional.
State v. Sutton, 63 Min 147, 65 NW 262, 30 LRA630, AM ST 459 When any court violates the clean and unambiguous language of the Constitution, a fraud is perpetuated, and no one is bound to obey it.
Norton vs. Shelby County, 118 US 425 p. 442. “An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed.”
Bell v. Hood, 71 F.Supp., 813, 816 (1947) U.S.D.C. — So. Dist. CA. History is clear that the first ten amendments to the Constitution were adopted to secure certain common law rights of the people, against invasion by the Federal Government.”
SIMMONS v US, supra. “We find it intolerable that one constitutional right should have to be surrendered in order to assert another”
Sable Communications of California v. Federal Communications Commission (1989)
When Congress acted to restrict this growing industry, Sable Communications filed suit in federal district court seeking an injunction against enforcement of the obscene and indecent portions of Section 223(b). The district court denied the injunction, upheld the obscenity portion, and struck down the indecency section of Section 223(b).
United States Supreme Court Rosenfeld v. New Jersey (1972) it is well understood that the right of free speech is not absolute at all times and under all circumstances. overly broad and violative of the First Amendment” State v. Rosenfeld 62 N.J. 594 (1973) 303 A.2d 889
Miranda vs Arizona, 384 U.S. 436 p. 491 “Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.”
Cohen v. California (1971) 403 U.S. 15 (1971), The Supreme Court established that the government generally cannot criminalize the display of profane words in public places. The Court rejected a fighting words application to a young man who wore a leather jacket with the words “fuck the draft” on it in a public courthouse.
Held: Absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display of this single four-letter expletive a criminal offense. Pp. 403 U. S. 22-26. Cohen v. California, 403 U.S. 15 (1971)1 Cal. App. 3d 94, 81 Cal. Rptr. 503, reversed.

HARLAN, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, STEWART, and MARSHALL, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which BURGER, C.J., and BLACK, J., joined, and in which WHITE, J., joined in part, post, p. 403 U. S. 27.

People v. Boomer (Mich. Ct. App.) (2002) “Allowing a prosecution where one utters ‘insulting’ language could possibly subject a vast percentage of the populace to a misdemeanor conviction,”
A.V v St Paul 1992 Justices ruled as unconstitutional a St. Paul ordinance classifying as hate speech words “that insult, or provoke violence, ‘on the basis of race, color, creed, religion or gender.’ ”
Karlan v. City of Cincinnati (1974) Police officers cannot use “fighting words,” as an excuse to abuse because police officers are trained to exercise a higher degree of constraint than the average citizen.
Reno v. American Civil Liberties Union (1997)
speech on the Internet is entitled to the same high degree of First Amendment protection extended to the print media as opposed to the reduced level given the broadcast media.
Bible Believers v. Wayne County (6th Cir.) (2015)
The case stands for the principle that the First Amendment protects unpopular speech and that government officials should not sanction a heckler’s veto.
Albert Krantz v. City of Fort Smith
A 1998 decision by the Eighth Circuit Court of Appeals concerning the distribution and posting of flyers and leaflets. In this ruling informed by the First Amendment’s protection of freedom of expression.
Lucas v. Arkansas (1974)416 U.S. 919 (1974)
The single-sentence Supreme Court decision in Lucas v. Arkansas, 416 U.S. 919 (1974), vacated and remanded this case, along with Kelly v. Ohio, Rosen v. California, and Karlan v. City of Cincinnati, to a state court for further consideration in light of the Court’s opinion in Lewis v. City of New Orleans (1974). Court remanded convictions after saying ordinance prohibiting fighting words violated First Amendment
Uzuegbunam v. Preczewski (2021) authorities asked him to stop on the basis that others had complained and that the college prohibited any such speech that “disturbs the peace and/or comfort of person(s).”
Lewis v. City of New Orleans (1974) The U.S. Supreme Court in 1974 overturned a woman’s conviction for cursing at police. Lewis had overturned a New Orleans ordinance on the basis that it violated the First and Fourteenth Amendments by being overbroad in its attempt to prohibit vulgar and offensive speech and “fighting words,” as recognized in Chaplinsky v. New Hampshire (1942) and Gooding v. Wilson (1972).
City of Houston v. Hill (1987) In City of Houston v. Hill, 482 U.S. 451 (1987), the Supreme Court found a city ordinance prohibiting verbal abuse of police officers to be unconstitutionally overbroad and a criminalization of protected speech.
STATE of Nebraska, appellee, v. Darren J. DRAHOTA – Darren Drahota sent a couple of anonymous insulting emails to William Avery, Drahota’s former political science professor, who was running for the Nebraska Legislature at the time. (Avery was eventually elected and served two terms.) Drahota was convicted of disturbing the peace for sending those emails, but the conviction was reversed in 2010 by the Nebraska Supreme Court. (I have a soft spot in my heart for this case, because it was the first First Amendment case I ever argued in court.)
STATE of Iowa, Appellee, v. William James FRATZKE, Appellant – William Fratzke was convicted of harassment “because he wrote a nasty letter to a state highway patrolman to protest a speeding ticket.” The Iowa Supreme Court (1989) reversed, on First Amendment grounds.
State of Wisconsin v. Thomas G. Smith – Thomas Smith was convicted of disorderly conduct and “unlawful use of a computerized communication system” for leaving two vulgar, insulting comments on a police department’s Facebook page. A one-judge Wisconsin Court of Appeals decision (2014) reversed. (Note that such insults aren’t unprotected “fighting words” because they aren’t face-to-face and thus aren’t likely to lead to an immediate fight.)
Commonwealth v. Bigelow – Harvey Bigelow sent two letters to Michael Costello, an elected town council member; both were insulting, and one was vulgar. Bigelow was convicted of criminal harassment, but the Massachusetts high court (2016) reversed: “Because these letters were directed at an elected political official and primarily discuss issues of public concern — Michael’s qualifications for and performance as a selectman — the letters fall within the category of constitutionally protected political speech at the core of the First Amendment.” And this was true even though the letters were sent to him at home. the case law link was above, but you can actually read the newspaper article of his exact doings here
People v. Powers, (2011) 193 Cal.App.4th 158,166. (“We conclude that the recordings appellant left on the customer service line cannot constitute substantial evidence that appellant violated section 653m, subdivision (a) [California’s annoying phone calls law]. The messages are annoying rants concerning customer service. It is reasonable for someone to be annoyed by appellant’s language. But the vulgarities uttered cannot be described as obscene, especially in the context of a customer service line maintained to take complaints. Except in extreme cases, we doubt that a person whose job it is to receive consumer complaints has a right to privacy against unwanted intrusion.”) THE PEOPLE, v. DAVID THOMAS POWERS determined although they may be a little annoying they were NOT ILLEGAL!
Ion Popa left seven messages containing racist insults on the answering machine of the head federal prosecutor in D.C. — Eric Holder, who eventually became attorney general. He was convicted of telephone harassment, which banned all anonymous calls made “with intent to annoy, abuse, threaten, or harass.”

But the D.C. Circuit (1989) expressly held that the First Amendment prevented the statute from applying to “public or political discourse,”
such as condemnation of political officials (even left expressly for that official).
Vermont’s Top Court Weighs: Are KKK Fliers 1st Amendment Protected Speech? see also Vermont v. Schenk 2015

Watch this different display of US RIGHTS in a JERSEY OFFICIAL MEETING by ANGRY CONSTITUTIONALIST https://www.youtube.com/watch?v=0wUH7GJjlYQ

It doesn’t look like our constitutional right of freedom of the press is going away any time soon.

FREEDOM OF THE PRESS DEFINITION

The freedom of communication and expression through media and/or published material. Flyers are communication and expression through published media material.

HANDBILL DEFINITION

A single page leaflet advertising events, services or other activities. Flyers are typically used by individuals or business’ to promote their product or services.

They are a form of mass marketing or small scale community communication. Information News Flyers are a legal form of community communication handbills by definition. A Website is a Digital Handbill of leaflet, it is the digital form of handing them out, how else could one get a peacefully assembly organized in todays society 2022

LITTER DEFINITION

Litter consists of waste products
Information News Flyers (same as LA Times or LA Weekly or other Leaflet Information/News) are not waste products or litter by legal definition and to claim or mislead holds no water to the law.
Flyers are not trash by legal definition and to mislead and claim they are would hold no water to the law.

TRASH DEFINITION

Unwanted or undesired waste material.

Freedom of the Press – Flyers, Newspaper, Leaflets, Peaceful Assembly. “The press was to serve the governed, not the governors.” —U.S. Supreme Court Justice Hugo Black in New York Times Co. v. United States (1971)

excerpts taken from NO Law requires you to record / pledge your private automobile

“Men are endowed by their Creator with certain unalienable rights, -‘life, liberty, and the pursuit of happiness;’ and to ‘secure,’ not grant or create, these rights, governments are instituted. That property which a man has honestly acquired he retains full control of, subject to these limitations: first, that he shall not use it to his neighbor’s injury, and that does not mean that he must use it for his neighbor’s benefit: second, that if he devotes it to a public use, he gives to the public a right to control that use; and third, that whenever the public needs require, the public may take it upon payment of due compensation.” Budd v. People of State of New York, 143 U.S. 517 (1892).

There should be no arbitrary deprivation of life or liberty, or arbitrary spoilation of property. (Police power, Due Process) Barber v. Connolly, 113 U.S. 27, 31; Yick Yo v. Hopkins, 118 U.S. 356.

To Wit:

“As general rule men have natural right to do anything which their inclinations may suggest, if it be not evil in itself, and in no way impairs the rights of others.” In Re Newman (1858), 9 C. 502.

Constitutional Law § 101 – right to travel – 5. The nature of the Federal Union and constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of the United States uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement. 6. Although not explicitly mentioned in the Federal Constitution, the right freely to travel from one state to another is a basic right

Under the US Constitution.

Constitutional Law § 101 – law chilling assertion of rights – 7. If a law has no other purpose than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it is patently unconstitutional. Shapiro v Thompson, 394 US 618, 22 L Ed 2d 600, 89 S Ct 1322.

So with all of that in mind, cite/deliver the cases above and

you have given the agency, etc. knowledge!

Under USC Title 42 §1986. Action for neglect to prevent …, it states: Every person who, having knowledge that any wrongs conspired or to be done… and having power to prevent or aid in preventing … Neglects or refuses so to do … shall be liable to the party injured… and; The means of “knowledge”, especially where it consists of public record is deemed in law to be “knowledge of the facts“. As the means of “knowledge” if it appears that the individual had notice or information of circumstances which would put him on inquiry, which, if followed, would lead to “knowledge”, or that the facts were presumptively within his knowledge, he will have deemed to have had actual knowledge of the facts and may be subsequently liable for any damage or injury. You, therefore, have been given “knowledge of the facts” as it pertains to this conspiracy to commit a fraud against me.

I state now that I will NOT waive any fundamental Rights as:
“waivers of fundamental Rights must be knowing, intentional, and voluntary acts, done with sufficient awareness of the relevant circumstances and likely consequences. U.S. v. Brady, 397 U.S. 742 at 748 (1970); U.S.v. O’Dell, 160 F.2d 304 (6th Cir. 1947)”.

And that the agency committed fraud, deceit, coercion, willful intent to injure another, malicious acts, RICO activity and conspired by; Unconscionable “contract” – “One which no sensible man not under delusion, or duress, or in distress would make, and such as no honest and fair man would accept.”; Franklin Fire Ins. Co. v. Noll, 115 Ind. App. 289, 58 N.E.2d 947, 949, 950. and; “Party cannot be bound by contract that he has not made or authorized.” Alexander v. Bosworth (1915), 26 C.A. 589, 599, 147 P.607.

The State cannot diminish rights of the people. Hurtado v. California, 110 U.S. 516.

“A state MAY NOT impose a charge for the enjoyment of a right granted (sic) by the Federal Constitution.” MURDOCK v PENNSYLVANIA, 319 US 105.

U.S. adopted Common laws of England with the Constitution. Caldwell vs. Hill, 178 SE 383 (1934).

“The phrase ‘common law‘ found in this clause, is used in contradistinction to equity, and admiralty, and maritime jurisprudence.” Parsons v. Bedford, et al, 3 Pet 433, 478-9.

“If the common law can try the cause, and give full redress, that alone takes away the admiralty jurisdiction.” Ramsey v. Allegrie, supra, p. 411.

Inferior Courts – The term may denote any court subordinate to the chief tribunal in the particular judicial system; but it is commonly used as the designation of a court of special, limited, or statutory jurisdiction, whose record must show the existence and attaching of jurisdiction in any given case, in order to give presumptive validity to its judgment. In re Heard’s Guardianship, 174 Miss. 37, 163, So. 685.

The high Courts have further decreed, that Want of Jurisdiction makes “…all acts of judges, magistrates, U.S. Marshals, sheriffs, local police, all void and not just voidable.” Nestor v. Hershey, 425 F2d 504.

The binding shackles of Government is the Constitution, to wit:

If the state were to be given the power to destroy rights through taxation, then the framers of our constitutions wrote said documents in vain. A republic is not an easy form of government to live under, and when the responsibility of citizenship is evaded, democracy decays and authoritarianism takes over. Earl Warren, “A Republic, If You Can Keep It”, p 13.

It is a fundamental principle in our institutions, indispensable to the preservation of public liberty, that one of the separate departments of government shall not usurp powers committed by the Constitution to another department. Mugler v. Kansas, 123 U.S. 623, 662.

An unconstitutional law is not a law, it confers no rights, imposes no duties, and affords no protection. Norton vs. Shelby County, 118 US 425.

“Primacy of position in our state constitution is accorded the Declaration of Rights; thus emphasizing the importance of those basic and inalienable rights of personal liberty and private property which are thereby reserved and guaranteed to the people and protected from arbitrary invasion or impairment from any governmental quarter. The Declaration of Rights constitutes a limitation upon the powers of every department of the state government. State ex rel. Davis v. Stuart. 64 A.L.R. 1307, 97 Fla. 69, 120 So. 335.

“The rights of the individual are not derived from governmental agencies, either municipal, state, or federal, or even from the Constitution. They exist inherently in every man, by endowment of the Creator, and are merely reaffirmed in the Constitution, and restricted only to the extent that they have been voluntarily surrendered by the citizenship to the agencies of government. The people’s rights are not derived from the government, but the government’s authority comes from the people. The Constitution but states again these rights already existing, and when legislative encroachment by the nation, state, or municipality invade these original and permanent rights, it is the duty of the courts to so declare, and to afford the necessary relief. City of Dallas, et al. v. Mitchell, 245 S. W. 944, 945-46 (1922).

The US Constitution is designated as a supreme enactment, a fundamental act of legislation by the people of the state. The constitution is legislation direct from the people acting in their sovereign capacity, while a statute is legislation from their representatives, subject to limitations prescribed by the superior authority. Ellingham v. Dye, 178 Ind. 336; NE 1; 231 U.S. 250; 58 L. Ed. 206; 34 S. Ct. 92; Sage v. New York, 154 NY 61; 47 NE 1096.

“Owner has constitutional right to use and enjoyment of his property.” Simpson v. Los Angeles(1935), 4 C.2d 60, 47 P.2d 474.

“We find it intolerable that one constitutional right should have to be surrendered in order to assert another”. SIMMONS v US, supra.

“When rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.” Miranda vs. Arizona, 384 US 436 p. 491.

“The claim and exercise of a Constitutional right cannot be converted into a crime.” Miller v. U.S. 230 F 2d 486, 489.

History is clear that the first ten amendments to the Constitution were adopted to secure certain common law rights of the people, against invasion by the Federal Government.” Bell v. Hood, 71 F.Supp., 813, 816 (1947) U.S.D.C. — So. Dist. CA.

Economic necessity cannot justify a disregard of cardinal constitutional guarantee. Riley v. Certer, 165 Okal. 262; 25 P.2d 666; 79 ALR 1018.

When any court violates the clean and unambiguous language of the Constitution, a fraud is perpetrated and no one is bound to obey it. (See 16 Ma. Jur. 2d 177, 178) State v. Sutton, 63 Minn. 147, 65 NW 262, 30 L.R.A. 630 Am. 459.

“The ‘liberty’ guaranteed by the constitution must be interpreted in the light of the common law, the principles and history of which were familiar and known to the framers of the constitution. This liberty denotes the right of the individual to engage in any of the common occupations of life, to locomote, and generally enjoy those rights long recognized at common law as essential to the orderly pursuit of happiness by free men.” Myer v. Nebraska, 262 U .S. 390, 399; United States v. Kim Ark, 169 U.S. 649, 654.

“An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed.” Norton vs. Shelby County, 118 US 425 p. 442. “The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it.

“No one is bound to obey an unconstitutional law and no courts are bound to enforce it.” 16 Am Jur 2nd, Sec 177 late 2d, Sec 256.

All laws which are repugnant to the Constitution are null and void. Chief Justice Marshall, Marbury vs Madison, 5, U.S. (Cranch) 137, 174, 176 (1803).

It cannot be assumed that the framers of the constitution and the people who adopted it, did not intend that which is the plain import of the language used. When the language of the constitution is positive and free of all ambiguity, all courts are not at liberty, by a resort to the refinements of legal learning, to restrict its obvious meaning to avoid the hardships of particular cases. We must accept the constitution as it reads when its language is unambiguous, for it is the mandate of the sovereign power. Cook vs Iverson, 122, N.M. 251.

“Right of protecting property, declared inalienable by constitution, is not mere right to protect it by individual force, but right to protect it by law of land, and force of body politic.” Billings v. Hall (1857), 7 C. 1.

“Constitution of this state declares, among inalienable rights of each citizen, that of acquiring, possessing and protecting property. This is one of primary objects of government, is guaranteed by constitution, and cannot be impaired by legislation.” Billings v. Hall (1857), 7 C. 1.

State Constitution – “The state constitution is the mandate of a sovereign people to its servants and representatives. Not one of them has a right to ignore or disregard these mandates...” John F. Jelko Co. vs. Emery, 193 Wisc. 311; 214 N.W. 369, 53 A.L.R., 463; Lemon vs. Langlin, 45 Wash. 2d 82, 273 P.2d 464.

The People are the Sovereign!

People are supreme, not the state. Waring vs. the Mayor of Savannah, 60 Georgia at 93.

The people of the State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created. (Added Stats. 1953, c. 1588, p.3270, sec. 1.)

The people are the recognized source of all authority, state or municipal, and to this authority it must come at last, whether immediately or by circuitous route. Barnes v. District of Columbia, 91 U.S. 540, 545 [23: 440, 441]. p 234.

“the government is but an agency to the state,” — the state being the sovereign people. State v. Chase, 175 Minn, 259, 220 N.W. 951, 953.

Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power.

“…The Congress cannot revoke the Sovereign power of the people to override their will as thus declared.” Perry v. United States, 294 U.S. 330, 353 (1935). “The Doctrine of Sovereign Immunity is one of the Common-Law immunities and defenses that are available to the Sovereign…” Citizen of Minnesota. Will v. Michigan Dept. of State Police, (1988) 491 U.S. 58, 105 L.Ed. 2d. 45, 109 S.Ct. 2304. “The people of the state, as the successors of its former sovereign, are entitled to all the rights which formerly belonged to the king by his own prerogative.” Lansing v. Smith, (1829) 4 Wendell 9, (NY).

Private Corporate State / Municipality Policy Enforcement Officer
a.k.a Police Officer Duties and limitations of power

“Nothing is gained in the argument by calling it ‘police power.’” Henderson v. City of New York, 92 U.S. 259, 2771 (1875); Nebbia v. New York, 291 U.S. 501 (1934).

“An officer who acts in violation of the Constitution ceases to represent the government.” Brookfield Const. Co. v. Stewart, 284 F.Supp. 94.

Failure to obey the command of a police officer constitutes a traditional form of breach of the peace. Obviously, however, one cannot be punished for failing to obey the command of an officer if that command is itself violative of the constitution. Wright v. Georgia, 373 U.S. 284, 291-2.

That an officer or employee of a state or one of its subdivisions is deemed to be acting under “color of law” as to those deprivations of right committed in the fulfillment of the tasks and obligations assigned to him. Monroe v. Page, 1961, 365 U.S. 167. (Civil law)

Actions by state officers and employees, even if unauthorized or in excess of authority, can be actions under “color of law.” Stringer v. Dilger, 1963, Ca. 10 Colo., 313 F.2d 536. (Civil law)

“The police power of the state must be exercised in subordination to the provisions of the U.S. Constitution.” Bacahanan vs. Wanley, 245 US 60; Panhandle Eastern Pipeline Co. vs. State Highway Commission, 294 US 613.

Section 242 of Title 18 makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States. For the purpose of Section 242, acts under “color of law” include acts not only done by federal, state, or local officials within their lawful authority, but also acts done beyond the bounds of that official’s lawful authority, if the acts are done while the official is purporting to or pretending to act in the performance of his/her official duties. Persons acting under color of law within the meaning of this statute include police officers, prisons guards and other law enforcement officials, as well as judges, care providers in public health facilities, and others who are acting as public officials. It is not necessary that the crime be motivated by animus toward the race, color, religion, sex, handicap, familial status or national origin of the victim.

“With regard particularly to the U.S. Constitution, it is elementary that a Right secured or protected by that document cannot be overthrown or impaired by any state police authority.” Donnolly vs. Union Sewer Pipe Co., 184 US 540; Lafarier vs. Grand Trunk R.R. Co., 24 A. 848; O’Neil vs. Providence Amusement Co., 108 A. 887.

Call Recording In California

Improperly filed no facts and filed as felony it can only be a misdemeanor

objectively reasonable expectation that the conversation is not being overheard or recorded. Flanagan v. Flanagan (2002) 27 Cal.4th 766, 768, 774–776; Vera v. O’Keefe (S.D.Cal.2011) 791 F.Supp.2d 959; 1396;. Whether there exists a reasonable expectation that no one is secretly recording or listening to a phone conversation is generally a question of fact. See Kight v. CashCall, Inc. (4th Dist. 2011) 200 Cal.App.4th 1377, 1396-97; Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, 169.

Frio v. Superior Court (1988) 203 Cal.App.3d 1480, 1488 (citation omitted). A person’s subjective belief that the call should not be recorded or monitored is not the test.

Courts that have analyzed the issue of whether a communication is confidential under § 632 have considered the totality of the surrounding circumstances to determine whether the parties had an objectively reasonable expectation that the conversation would not be recorded or overheard. Kight, supra, 200 Cal.App.4th at 1397.

Factors relevant to determining whether an objectively reasonable expectation of privacy exists (that is, that no one is secretly recording or listening to a phone conversation) include, but are not limited to:

who initiated the call,
the purpose and duration of the call,
the customer’s prior relationships, experiences and communications,
whether confidential information was conveyed, and, or course
whether an admonition/disclosure/warning was given during the call at the outset, or otherwise. See Kight, supra, 200 Cal.App.4th at 1397 (citing Kearney); see also Flanagan, supra, 27 Cal.4th at 776–77 (remanding for consideration whether son had objectively reasonable expectation that his private telephone conversations with his father were not being recorded by the father’s wife); Nissan Motor Co., Ltd. v. Nissan Computer Corp. (C.D.Cal.2002) 180 F.Supp.2d 1089, 1093–94 (conversations between counsel concerning litigation related matters were deemed confidential communications within the meaning of Section 632); People v. Pedersen (1978) 86 Cal.App.3d 987, 994 (“The nature of the meeting and the manner in which it was carried out are such that the court could reasonably conclude that it was no different than other business meetings of the parties that were not”).

The supposed victim did not have a reasonable expectation that his or her call would not be overheard or recorded. Kearney, supra, 39 Cal.4th at 117-118.

As a corollary to this element, obtaining consent to record or monitor is its own defense, but, of course, notification and consent also undermine the expectation of privacy element. See Kearney, supra, 39 Cal.4th at 100, 118.

plaintiff probably needs not to have suffered appreciable, compensable, or even nominal “damage” to assert a viable claim. But compare FAA v. Cooper (2012) ___ U.S.____, 132 S.Ct. 144

“The statute of limitations in which to commence an action for invasion of privacy is one year.” Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 880. The statute of limitations on a cause of action under Penal Code § 632 commences when the plaintiff knew, or should have known, of the defendant’s unlawful acts. Montalti v. Catanzariti (1987) 191 Cal.App.3d 96, 97-98.

Where a caller is made aware that the call or conversation was, or is, being monitored or recorded, there is no violation of § 632 because there is no objectively reasonable expectation of privacy. Id. at 100, 118; Weiner, supra, 2012 WL 3632025 at *3, fn. 2.Moreover, by continuing with the conversation after being so warned, consent is given by implication. See Kearney, supra, 39 Cal.4th at 100, 118.

In any event, where the plaintiff knows the call is being recorded and goes forward without objection and participates anyway, consent should be implied. See Kearney, supra, 39 Cal.4th at 100, 118.

Under restricted circumstances, even an illegal recording can be used in a court of law. While it could not be used to present affirmative evidence in the case or to prove a point, it can be used to prevent perjury of a witness. In Frio v Superior Court (1988) 203 Cal.App.3e 1480, the Court of Appeal held that any testifying witness cannot use the exclusionary provisions of Penal Code Section 632 as a shield for perjury.

the limits on use of that evidence. In People v Crow (1994), the court stated, “Evidence of confidential conversations obtained by eavesdropping or recording in violation of Penal Code Section 632 is generally inadmissible in any proceeding…but can be used to impeach inconsistent testimony by those seeking to exclude the evidence..”

Prior decisions in Sanders v. American Broadcasting Cos. (1999) 20 Cal.4th 907 explain that “while privacy expectations may diminish significantly in the workplace, in the workplace, they are not lacking altogether.” Sanders v. American Broadcasting Cos.

My workplace cameras record 24/7 in safe workplace areas

https://goodshepherdmedia.net/a-brief-overview-of-call-recording-in-california/

learn more

Right to Truth – Victims’ Bill of Rights – Prop 8 1982

Government / Public Servants / Officers / Judges Not Immune from suit!

“The officers of the law, in the execution of process, are required to know the requirements of the law, and if they mistake them, whether through ignorance or design, and anyone is harmed by their error, they must respond in damages.” Roger v. Marshall (United States use of Rogers v. Conklin), 1 Wall. (US) 644, 17 Led 714.

“It is a general rule that an officer, executive, administrative, quasi-judicial, ministerial, or otherwise, who acts outside the scope of his jurisdiction, and without authorization of law may thereby render himself amenable to personal liability in a civil suit.” Cooper v. O`Conner, 69 App DC 100, 99 F (2d)

“Public officials are not immune from suit when they transcend their lawful authority by invading constitutional rights. “AFLCIO v. Woodard, 406 F 2d 137 t.

“Immunity fosters neglect and breeds irresponsibility while liability promotes care and caution, which caution and care is owed by the government to its people.” (Civil Rights) Rabon vs Rowen Memorial Hospital, Inc. 269 N.S. 1, 13, 152 SE 1 d 485, 493.

Government Immunity – “In Land v. Dollar, 338 US 731 (1947), the court noted, “that when the government entered into a commercial field of activity, it left immunity behind.” Brady v. Roosevelt, 317 US 575 (1943); FHA v. Burr, 309 US 242 (1940); Kiefer v. RFC, 306 US 381 (1939).

The high Courts, through their citations of authority, have frequently declared, that “…where any state proceeds against a private individual in a judicial forum it is well settled that the state, county, municipality, etc. waives any immunity to counters, cross claims and complaints, by direct or collateral means regarding the matters involved.” Luckenback v. The Thekla, 295 F 1020, 226 Us 328; Lyders v. Lund, 32 F2d 308;

“When enforcing mere statutes, judges of all courts do not act judicially (and thus are not protected by “qualified” or “limited immunity,” – SEE: Owen v. City, 445 U.S. 662; Bothke v. Terry, 713 F2d 1404)

– – “but merely act as an extension as an agent for the involved agency — but only in a “ministerial” and not a “discretionary capacity…” Thompson v. Smith, 154 S.E. 579, 583; Keller v. P.E., 261 US 428; F.R.C. v. G.E., 281, U.S. 464.

Thompson v. Clark 2022 Holding: Larry Thompson’s showing that his criminal prosecution ended without a conviction satisfies the requirement to demonstrate a favorable termination of a criminal prosecution in a Fourth Amendment claim under Section 1983 for malicious prosecution; an affirmative indication of innocence is not needed.

Immunity for judges does not extend to acts which are clearly outside of their jurisdiction. Bauers v. Heisel, C.A. N.J. 1966, 361 F.2d 581, Cert. Den. 87 S.Ct. 1367, 386 U.S. 1021, 18 L.Ed. 2d 457 (see also Muller v. Wachtel, D.C.N.Y. 1972, 345 F.Supp. 160; Rhodes v. Houston, D.C. Nebr. 1962, 202 F.Supp. 624 affirmed 309 F.2d 959, Cert. den 83 St. 724, 372 U.S. 909, 9 L.Ed. 719, Cert. Den 83 S.Ct. 1282, 383 U.S. 971, 16 L.Ed. 2nd 311, Motion denied 285 F.Supp. 546).

“Judges not only can be sued over their official acts, but could be held liable for injunctive and declaratory relief and attorney’s fees.” Lezama v. Justice Court, A025829.

“The immunity of judges for acts within their judicial role is beyond cavil.” Pierson v. Ray, 386 U.S. 547 (1957). Keyword within their role, outside of that role they are not.

At least seven circuits have indicated affirmatively that there is no immunity bar to such relief, and in situations where in their judgment an injunction against a judicial officer is necessary to prevent irreparable injury to a petitioner’s constitutional rights, courts will grant that relief. “There is no common law judicial immunity.” Pulliam v. Allen, 104S.Ct. 1970; cited in Lezama v. Justice Court, A025829.

“Judges, members of city council, and police officers as well as other public officials, may utilize good faith defense of action for damages under 42-1983, but no public official has absolute immunity from suit under the 1871 civil rights statute.” (Samuel vs University of Pittsburg, 375 F.Supp. 1119, ‘see also, White vs Fleming 374 Supp. 267.)

NO IMMUNITY
“Sovereign immunity does not apply where (as here) government is a lawbreaker or jurisdiction is the issue.” Arthur v. Fry, 300 F.Supp. 622

“Knowing failure to disclose material information necessary to prevent statement from being misleading, or making representation despite knowledge that it has no reasonable basis in fact, are actionable as fraud under law.” Rubinstein v. Collins, 20 F.3d 160, 1990

[a] “Party in interest may become liable for fraud by mere silent acquiescence and partaking of benefits of fraud.” Bransom v. Standard Hardware, Inc., 874 S.W.2d 919, 1994

Ex dolo malo non oritur actio. Out of fraud no action arises; fraud never gives a right of action. No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act. As found in Black’s Law Dictionary, Fifth Edition, page 509.

“Fraud destroys the validity of everything into which it enters,” Nudd v. Burrows, 91 U.S 426.

“Fraud vitiates everything” Boyce v. Grundy, 3 Pet. 210

“Fraud vitiates the most solemn contracts, documents and even judgments.” U.S. v. Throckmorton, 98 US 61

U.S. v. Lee, 106 U.S. 196, 220 1 S. Ct. 240, 261, 27 L. Ed 171 (1882) “No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. “

When a Citizen challenges the acts of a federal or state official as being illegal, that official cannot just simply avoid liability based upon the fact that he is a public official. In United States v. Lee, 106 U.S.196, 220, 221, 1 S.Ct. 240, 261, the United States claimed title to Arlington, Lee’s estate, via a tax sale some years earlier, held to be void by the Court. In so voiding the title of the United States, the Court declared:
“No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives. “Shall it be said… that the courts cannot give remedy when the citizen has been deprived of his property by force, his estate seized and converted to the use of the government without any lawful authority, without any process of law, and without any compensation, because the president has ordered it and his officers are in possession? If such be the law of this country,
it sanctions a tyranny which has no existence in the monarchies of Europe, nor in any other government which has a just claim to well-regulated liberty and the protection of personal rights.”

See Pierce v. United States (“The Floyd Acceptances”), 7 Wall. (74 U.S.) 666, 677 (“We have no officers in this government from the President down to the most subordinate agent, who does not hold office under the law, with prescribed duties and limited authority”);
Cunningham v. Macon, 109 U.S. 446, 452, 456, 3 S.Ct. 292, 297 (“In these cases he is not sued as, or because he is, the officer of the government, but as an individual, and the court is not ousted of jurisdiction because he asserts authority as such officer. To make out his defense he must show that his authority was sufficient in law to protect him… It is no answer for the defendant to say I am an officer of the government and acted under its authority unless he shows the sufficiency of that authority”); and Poindexter v. Greenhow, 114 U.S. 270, 287, 5 S.Ct. 903, 912

WHEREAS, officials and even judges have questioned immunity (See, Owen vs. City of Independence, 100 S Ct. 1398; Maine vs. Thiboutot, 100 S. Ct. 2502; and Hafer vs. Melo, 502 U.S. 21; officials and judges are deemed to know the law and sworn to uphold the law; officials and judges cannot claim to act in good faith in willful deprivation of law, they certainly cannot plead ignorance of the law, even the Citizen cannot plead ignorance of the law, the courts have ruled there is no such thing as ignorance of the law, it is ludicrous for learned officials and judges to plead ignorance of the law therefore there is no immunity, judicial or otherwise, in matters of rights secured by the Constitution for the United States of America. See: Title 42 U.S.C. Sec. 1983.

“When lawsuits are brought against federal officials, they must be brought against them in their “individual” capacity not their official capacity. When federal officials perpetrate constitutional torts, they do so ultra vires (beyond the powers) and lose the shield of immunity.” Williamson v. U.S. Department of Agriculture, 815 F.2d. 369, ACLU Foundation v. Barr, 952 F.2d. 457, 293 U.S. App. DC 101, (CA DC 1991).

“Personal involvement in deprivation of constitutional rights is prerequisite to award of damages, but defendant may be personally involved in constitutional deprivation by direct participation, failure to remedy wrongs after learning about it, creation of a policy or custom under which unconstitutional practices occur or gross negligence in managing subordinates who cause violation.” (Gallegos v. Haggerty, N.D. of New York, 689 F. Supp. 93 (1988).

“The law requires proof of jurisdiction to appear on the record of the administrative agency and all administrative proceedings.” Hagans v. Lavine, 415 U. S. 533

“If you’ve relied on prior decisions of the Supreme Court you have a perfect defense for willfulness.” U.S. v. Bishop, 412 U.S. 346

Before we place the stigma of a criminal conviction upon any such citizen the legislative mandate must be clear and unambiguous. Accordingly that which Chief Justice Marshall has called ‘the tenderness of the law Page 11 of 48 for the rights of individuals’ [FN1] entitles each person, regardless of economic or social status, to an unequivocal warning from the legislature as to whether he is within the class of persons subject to vicarious liability. Congress cannot be deemed to have intended to punish anyone who is not ‘plainly and unmistakably’ within the confines of the statute. United States v. Lacher, 134 U.S. 624, 628, 10 S. Ct. 625, 626, 33 L. Ed. 1080; United States v. Gradwell, 243 U.S. 476,485, 37 S. Ct. 407, 61 L. Ed. 857. FN1 United States v. Wiltberger, 5 Wheat. 76, 95, 5 L.Ed. 37.

We do not overlook those constitutional limitations which, for the protection of personal rights, must necessarily attend all investigations conducted under the authority of Congress. Neither branch of the legislative department, still less any merely administrative body, established by Congress, possesses, or can be invested with, a general power of making inquiry into the private affairs of the citizen. Kilbourn v. Thompson, 103 U. S. 168,196 [26: 377, 386].
We said in Boyd v. United States, 116 U. S. 616, 630 [29: 746, 751]—and it cannot be too often repeated—that the principles that embody the essence of constitutional liberty and security forbid all invasions on the part of the government and its employes of the sancity of a man’s home, and the privacies of his life.
As said by Mr. Justice Field in Re Pacific R. Commission, 32 Fed. Rep. 241,250, “of all the rights of the citizen, few are of greater importance or more essential to his peace and happiness than the right of personal security, and that involves, not merely protection of his person from assault, but exemption of his private affairs, books, and papers from the inspection and scrutiny of others. Without the enjoyment of this right, all others would lose half their value.”

Zeller v. Rankin, 101 S.Ct. 2020, 451 U.S. 939, 68 L.Ed 2d 326 When a judge knows that he lacks jurisdiction, or acts in the face of clearly valid statutes expressly depriving him of jurisdiction, judicial immunity is lost.

JURISDICTION NOTE: It is a fact of law that the person asserting jurisdiction must, when challenged, prove that jurisdiction exists; mere good faith assertions of power and authority (jurisdiction) have been abolished.

Albrecht v. U.S. Balzac v. People of Puerto Rico, 258 U.S. 298 (1922) “The United States District Court is not a true United States Court, established under Article 3 of the Constitution to administer the judicial power of the United States therein conveyed. It is created by virtue of the sovereign congressional faculty, granted under Article 4, 3, of that instrument, of making all needful rules and regulations respecting the territory belonging to the United States. The resemblance of its jurisdiction to that of true United States courts, in offering an opportunity to nonresidents of resorting to a tribunal not subject to local influence, does not change its character as a mere territorial court.”

“Jurisdiction of court may be challenged at any stage of the proceeding, and also may be challenged after conviction and execution of judgment by way of writ of habeas corpus.” [U.S. v. Anderson, 60 F.Supp. 649 (D.C.Wash. 1945)]

Stump v. Sparkman, id., 435 U.S. 349. Some Defendants urge that any act “of a judicial nature” entitles the Judge to absolute judicial immunity. But in a jurisdictional vacuum (that is, absence of all jurisdiction) the second prong necessary to absolute judicial immunity is missing. A judge is not immune for tortious acts committed in a purely Administrative, non-judicial capacity.

Piper v. Pearson, 2 Gray 120, cited in Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872) “Where there is no jurisdiction, there can be no discretion, for discretion is incident to jurisdiction.”

Chandler v. Judicial Council of the 10th Circuit, 398 U.S. 74, 90 S. Ct. 1648, 26 L. Ed. 2d 100 Justice Douglas, in his dissenting opinion at page 140 said, “If (federal judges) break the law, they can be prosecuted.” Justice Black, in his dissenting opinion at page 141) said, “Judges, like other people, can be tried, convicted and punished for crimes… The judicial power shall extend to all cases, in law and equity, arising under this Constitution“.

Davis v. Burris, 51 Ariz. 220, 75 P.2d 689 (1938) A judge must be acting within his jurisdiction as to subject matter and person, to be entitled to immunity from civil action for his acts.

“Jurisdiction, once challenged, cannot be assumed and must be decided.” Maine v. Thiboutot, 100 S. Ct. 250

JUDICIAL IMMUNITY: See also, 42 USC 1983 – Availability of Equitable Relief Against Judges.

Note: [Copied verbiage; we are not lawyers.] Judges have given themselves judicial immunity for their judicial functions. Judges have no judicial immunity for criminal acts, aiding, assisting, or conniving with others who perform a criminal act or for their administrative/ministerial duties, or for violating a citizen’s constitutional rights. When a judge has a duty to act, he does not have discretion – he is then not performing a judicial act; he is performing a ministerial act. Nowhere was the judiciary given immunity, particularly nowhere in Article III; under our Constitution, if judges were to have immunity, it could only possibly be granted by amendment (and even less possibly by legislative act), as Art. I, Sections 9 & 10, respectively, in fact expressly prohibit such, stating, “No Title of Nobility shall be granted by the United States” and “No state shall… grant any Title of Nobility.” Most of us are certain that Congress itself doesn’t understand the inherent lack of immunity for judges. Article III, Sec. 1, “The Judicial Power of the United States shall be vested in one supreme court, and in such inferior courts, shall hold their offices during good behavior.”

Tort & Insurance Law Journal, Spring 1986 21 n3, p 509-516, “Federal tort law: judges cannot invoke judicial immunity for acts that violate litigants’ civil rights.” – Robert Craig Waters.

TAKE DUE NOTICE ALL GOVERNMENT OFFICIALS, SERVANTS, JUDGES, LAYERS, CLERKS, EMPLOYEES:

“Ignorance of the law does not excuse misconduct in anyone, least of all in a sworn officer of the law.” In re McCowan (1917), 177 C. 93, 170 P. 1100.

“All are presumed to know the law.” San Francisco Gas Co. v. Brickwedel (1882), 62 C. 641; Dore v. Southern Pacific Co. (1912), 163 C. 182, 124 P. 817; People v. Flanagan (1924), 65 C.A. 268, 223 P. 1014; Lincoln v. Superior Court (1928), 95 C.A. 35, 271 P. 1107; San Francisco Realty Co. v. Linnard (1929), 98 C.A. 33, 276 P. 368.

“It is one of the fundamental maxims of the common law that ignorance of the law excuses no one.” Daniels v. Dean (1905), 2 C.A. 421, 84 P. 332.

Jurisdiction challenged to all, at any and all times

“Judge acted in the face of clearly valid statutes or case law expressly depriving him of (personal) jurisdiction would be liable.” Dykes v. Hosemann, 743 F.2d 1488 (1984). “In such case the judge has lost his judicial function, has become a mere private person, and is liable as a trespasser for damages resulting from his unauthorized acts.”

“Where there is no jurisdiction there is no judge; the proceeding is as nothing. Such has been the law from the days of the Marshalsea, 10 Coke 68;
also Bradley v. Fisher, 13 Wall 335,351.” Manning v. Ketcham, 58 F.2d 948.

“A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter any authority exercised is a usurped authority and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible.” Bradley v.Fisher,13 Wall 335, 351, 352.

The laws of nature are the laws of God, whose authority can be superseded by no power on earth. A legislature must not obstruct our obedience to him from whose punishments they cannot protect us. All human constitutions which contradict his cannot protect us. All human constitutions which contradict his (God’s) laws, we are in conscience bound to disobey. 1772, Robin v. Hardaway, 1 Jefferson 109. Supreme court cases from digging around Robin v. Hardaway 1790. Biblical Law at “Common Law” supersedes all laws, and “Christianity is custom, custom is Law.”

(I, Me, Myself am a “state”, with standing, standing in “original jurisdiction” know as the common law, Gods Law, a neutral traveling in itinerary, demanding all of my rights under God’s Natural Law, recorded in part in the Bible, which law is recognized in US Public Law 97-280 as “the word of God and all men are admonished to learn and apply it” so I demand anyone and everyone to notice God’s Laws, which are My Makers Laws and therefore My Laws!)

– Article 1 of the Bill of Rights – guarantees freedom of religion-
Constitution for the United States of America ARTICLE IV, sect. 1, Full faith and credit among states. (Self-executing constitutional provisions) Section 1. Full faith and Credit shall be given in each state to the public Acts, Records, and judicial Proceedings of every other state.

And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

for true knowledge of how sophisticated the legal minds of our forefathers were read how intricate their minds worked absent of all modern inventions including modern internet free schooling.

California Civil Code Section 52.1 California Civil Code Section 52.1 – The Bane Act

Interference by threat, intimidation or coercion with exercise or enjoyment of individual rights The Bane Civil Rights Act (California Civil Code Section 52.1) forbids anyone from interfering by force or by threat of violence with your federal or state constitutional or statutory rights. The acts forbidden by these civil laws may also be criminal acts, and can expose violators to criminal penalties. California Civil Code Section 52.1 – Interference by threat, intimidation or coercion with exercise or enjoyment of individual rights read here california-civil-code-section-52-1/

Civil Code Section 52.1, the Tom Bane Civil Rights Act, authorizes suit against anyone who by threats, intimidation, or coercion interferes with the exercise or enjoyment of rights secured by the state or federal Constitutions or laws without regard to whether the victim is a member of a protected class. (Civ. Code § 52.1.)

42 U.S. Code § 1983 – Civil action for deprivation of rights

Every person who, under color of any statute, ordinance, subjects, or causes to be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

to read the full statute click link below
cited

42-us-code-1983-civil-action-for-deprivation-of-rights/

Recoverable Damages Under 42 U.S.C. Section 1983

Section 1983 Lawsuit – How to Bring a Civil Rights Claim

18 U.S. Code § 242 – Deprivation of rights under color of law

18 U.S. Code § 241 – Conspiracy against rights

9.3 Section 1983 Claim Against Defendant in Individual Capacity —Elements and Burden of Proof

How to file a complaint of Police or other Government Official Misconduct Click Here

Penal Code §§ 146 [unlawful detention or arrest by peace officer] 149 [beating / torturing prisoners], 236 [false imprisonment], 192 [manslaughter], 187 [murder] and 245 [assault with deadly weapon / by means resulting in great bodily injury]), civil liability (i.e. federal civil remedy for violation of federal and statutory rights under color of state law [42 U.S.C. § 1983]), and California state law claims for battery, assault, false arrest / false imprisonment, wrongful death, violation of Cal. Civil Code § 52.1 (retaliation for exercise of, or in attempt to, dissuade prevent another from exercising Constitutional rights), or administrative discipline (i.e. reprimand, suspension, rank reduction, and termination.)

Notwithstanding the absurd and cruel creation of immunity for peace officers that went well beyond the literal wording and clear meaning of Section 821.6 by the California Courts of Appeal, in 2061 in Tort claims are typically matters of state law, raising no federal question. However, the conduct complained of may also violate the federal Constitution. In such a case, relief may be available in a federal court under 42 U.S.C. § 1983, which authorizes “constitutional torts”, by creating a private right of action in federal court (Congress even allowing federal claims in a state court), against any person who, “under color of [state law],” causes injuries by violating an individual’s federal Constitutional or statutory rights. Section 1983, however, “is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979.) Therefore, in order to bring a malicious prosecution claim under Section 1983, a malicious criminal prosecution must be deemed a deprivation of a right “secured by the Constitution.” 42 U.S.C. § 1983.

THE NINTH CIRCUIT COMES TO THE RESCUE AND REFUSES TO FOLLOW THE CALIFORNIA COURTS OF APPEAL IN THEIR AD NAUSEUM EXPANSION OF MALICIOUS PROSECUTION IMMUNITY UNDER SECTION 821.6.

The Ninth Circuit also continued its pre-Galbraith malicious prosecution jurisprudence and held that in in addition to constituting a 4th Amendment violation, that one could sue for a malicious criminal prosecution if the prosecution was brought to deprive the innocent of some other constitutional right, such as attempting to frame an innocent in retaliation for protected exercise of First Amendment free speech, or, as a naked constitutional tort. See, Awabdy v. City of Adelanto, 368 F.3d 1062, 1069–72 (9th Cir. 2004.) i

FEDERAL LAW NOW PROVIDES A REMEDY FOR A MALICIOUS CRIMINAL PROSECUTION.

In Thompson v. Clark, 596 U.S (April 4, 2022) for the first time in the history of the Americann Republic, the U.S. Supreme Court finally held that there is a Constitutional Tort of Malicious Criminal Prosecution. The Supreme Court also went on to hold that in order to sue for a Malicious Criminal Prosecution, that the underlying criminal action only need not result in a conviction of the accused for the accused (and now plaintiff), for the underlying criminal case to be considered to be “favorably terminated”; a “favorable termination” of the underlying criminal case being a required element of that claim.

To learn more about SB 2 Police Decertification Process – Changes to Government Code – senate-bill-2-police-decertification-process/
SB 2, Expanding Civil Liability Exposure – sb-2-expanding-civil-liability-exposure/

Pro Se Case Law

Bruce Baldinger v. Antonio Ferri, No. 12-4529 (3d Cir. 2013)

Haines v. Kerner, 404 U.S. 520 (1971)
Plaintiff-inmate filed pro se complaint against prison seeking compensation for damages sustained while placed in solitary confinement. In finding plaintiff’s complaint legally sufficient, Supreme Court found that pro se pleadings should be held to “less stringent standards” than those drafted by attorneys.

Ellis v. Maine, 448 F.2d 1325, 1328 (1st Cir. 1971)
Pro se petitioner who asserted complete ignorance of the law subsequently presented a brief that was manifestly written by a person with legal knowledge. Court held that a brief prepared in any substantial part by a member of the bar must be signed by that member.

Nichols v. Keller, 19 Cal.Rptr.2d 601 (1993)
Plaintiff who consulted defendants’ law firms regarding workers’ compensation claim was not advised of potential for additional third party claim before statue of limitations expired. Defendants argued that plaintiff’s representation was limited only to filing workers’ compensation claim and no duty existed to advise plaintiff in any other matter. Court found that representation was not limited solely to workers compensation claim, and defendants should have advised plaintiff regarding third party claim.

Johnson v. Board of County Comm’rs, 868 F.Supp. 1226 (D. Colo. 1994)
Former sheriff department workers bring sexual harassment suit against county sheriff in his individual and official capacities. Attorney representing sheriff enters limited appearance on behalf of his official capacity. Court finds that attorney cannot enter limited appearance on behalf of sheriff’s official capacity. Attorney representing sheriff must act for the entire person, including individual and official capacities. Entering such limited appearance is not competent and zealous representation as required by ethical rules as it leaves officer undefended on individual capacity claims. Court further finds that ghostwriting of documents for pro se litigants may subject lawyers to contempt of court. Ghostwriting gives litigants unfair advantage in that pro se pleadings are construed liberally and pro se litigants are granted greater latitude in hearings and trials. Ghostwriting also results in evasion of obligations imposed on attorneys by statute, code, and rule, and involves lawyers in litigants’ misrepresentation of pro se status in violation of ethical rules.

Laremont-Lopez v. Southeastern Tidewater Opportunity Ctr., 968 F.Supp. 1075 (E.D. Va. 1997)
Over a period of time, pro se plaintiffs submitted pleadings that had been written by attorneys pursuant to discrete-task representation contracts. The attorneys did not sign the pleadings, and in most cases did not appear as counsel of record. When ordered to show cause by the court as to why they should not be held in contempt of court, attorneys argued that the professional relationships created with the litigants ended once they had drafted the pleadings. Court held that there was insufficient evidence to show that the attorneys knowingly misled the court or intentionally violated ethical or procedural rules and declined to impose sanctions. However, court stated that the practice of ghostwriting pleadings without acknowledging authorship and without asking court approval to withdraw from representation was inconsistent with Fed. R. Civ. P. 11 and Rule 83.1(G) of the Local Rules for the United States District Court for the Eastern District of Virginia. Court stated that allowing attorneys to ghostwrite pleadings for pro se plaintiffs abused additional leeway given to pro se filings.

U.S. v. Eleven Vehicles, 966 F.Supp. 361 (E.D.Pa. 1997)
Court finds that ghostwriting by attorney for a pro se litigant implicates an attorney’s duty of candor to the court, interferes with the court’s ability to supervise the litigation, and misrepresents the litigant’s right to more liberal construction as a pro se litigant.

Wesley v. Don Stein Buick, Inc., 987 F.Supp. 884 (D.Kan. 1997)
In suit brought by pro se plaintiff, defendants sought order requiring plaintiff to disclose whether she was an attorney or received the assistance of a lawyer. In expressing legal and ethical concerns regarding the ghostwriting of pleadings by attorneys, the court held the defendants were entitled to the order.

Ricotta v. California, 4 F.Supp.2d 961 (S.D. Cal. 1998)
Attorney licensed in the State of California did not violate procedural, substantive, and professional rules of a federal court by lending some assistance to friends, family members, and others with whom she shared specialized knowledge. Attorney performed research and prepared rough drafts of portions of pro se litigant’s pleadings in an action against various official defendants, but did not sign the documents. Because attorney did not gather and anonymously present legal arguments with the actual or constructive knowledge that plaintiff would use them in court, and because attorney did not engage in extensive, undisclosed participation that permitted plaintiff to falsely appear as being without professional assistance, attorney had not violated any rules.

Ostrovsky v. Monroe (In re Ellingson), 230 B.R. 426 (Bankr.D.Mont. 1999)
Paralegal who helped a business draft and file bankruptcy papers was found to be engaged in the unauthorized practice of law. Court notes that if an attorney acted in the same manner as paralegal, that person would be guilty of “ghost writing,” which is described as the act of undisclosed attorney who assists a self-represented litigant by drafting his or her pleadings as part of “unbundled” or limited legal services. Court also notes that ghostwriting violates court rules, particularly Fed.R.Civ.P. 11, as well as ABA Standing Committee Opinion 1414 in Ethics and Professional Responsibility.

Jones v. Bresset, 2000 W: 3311607 (47 Pa. D. & C 4th 60)
Defendant was an attorney hired by plaintiff in the midst of plaintiff’s bankruptcy proceedings. The plaintiff had already obtained counsel of record, and hired defendant solely for the purpose of securing an accounting in the bankruptcy proceeding. The defendant alerted plaintiff of limited scope of his representation, advising plaintiff that problems may arise outside the scope of his representation. Plaintiff commenced a legal malpractice suit against his attorney of record stating negligence, and included the defendant in the claim. The court found that since the defendant distinctly limited the scope of his representation and urged the plaintiff to hire separate counsel for other matters, the defendant had no legal duty to investigate or advise plaintiff on existence of malpractice by attorney of record.

Ostevoll v. Ostevoll, 2000 WL 1611123 (S.D. Ohio)
Respondent argues that the Petition should be stricken pursuant to Fed.R.Civ.P. 11 because, although allegedly filed pro se, petitioner clearly received substantial assistance from counsel in the preparation and filing of the Petition. Court finds that if a pleading is prepared in any substantial part by a member of the bar, it must be signed by that attorney to avoid misrepresentation.

Streit v. Covington & Crowe, 82 Cal.App. 4th 441 (2000)
In a lawsuit, plaintiff’s counsel of record requested that another firm make a “special appearance” at a summary judgment motion, appearing on behalf of counsel of record. Plaintiff filed a legal malpractice suit after a summary judgment was entered against her, arguing that the special appearance created an attorney-client relationship. The appellate court found that an attorney making a special appearance represents the client’s interests and has a professional attorney-client relationship with the client. Further, the voluntary appearance created a limited representation status and not a true “special appearance”.

Armor v. Lantz, 207 W. VA 672, 535 S.E.2d 737 (2000)
Appellants brought legal malpractice suit against local attorney retained by Ohio lawyer in products liability case. Appellants claimed that West Virginia lawyer who acted as local counsel was liable for malpractice of Ohio lawyer. Court found that, while it was difficult to clearly define the role of local counsel according to West Virginia rules, the local attorney had effectively entered a limited representation agreement and was therefore not responsible for all aspects of the case or for the Ohio lawyer’s conduct.

Duran v. Carris, 238 F.3d 1268 (10th Cir. 2001)
Lawyer participated in ghostwriting appellate brief for a pro se litigant. Court holds that participation by an attorney in drafting otherwise pro se appellate brief is per se substantial legal assistance, and must be acknowledged by signature. An attorney must refuse to provide ghostwriting assistance unless purported pro se client specifically commits to disclose attorney’s assistance to the court upon filing.

Lynne v. Laufer, No. A-2079-01T2, (N.J. Super. App. Div. Apr. 8, 2003)
Attorney, with matrimonial client’s consent after consultation, limited the scope of his representation to a review of the terms of a mediated agreement without going outside its four corners. Court holds that it is not a breach of the standard of care for an attorney under a signed precisely drafted consent agreement to limit the scope of representation to not perform such services in the course of representing a matrimonial client that he or she might otherwise perform absent such a consent.

Melvin Finance, Inc. v. Artis, 157 N.C. App. 716, 2003 WL 21153426 (N.C.App.)
Defendant retained an attorney on a limited basis, following an action filed by the plaintiff to recover costs on a defaulted loan. Limited representation attorney agreed to file responsive pleadings and negotiate a settlement agreement, and filed a notice of limited appearance. While the defendant received notice of a scheduled hearing and forwarded it to his limited representation attorney, neither defendant nor attorney appeared at the hearing and, consequently, an arbitration award was entered for the plaintiff. Defendant filed a motion to set aside judgment, which was denied. On appeal, the defendant claimed the limited representation attorney’s failure to appear at the hearing amounted to excusable neglect and that the judgment should be set aside. The court found that since the defendant received notice of the hearing and had retained the attorney on a limited basis, that the limited representation attorney’s conduct did not constitute excusable neglect. The lower court decision was affirmed.

Sharp v. Sharp, 2006 WL 3088067 (Va.Cir.Court)
Complainant and respondent were co-tenants of real estate property. The respondent appeared pro se during a hearing before the commissioner in chancery, but then hired an attorney who appeared in a limited capacity at several other hearings. On appeal, the court sought to determine whether or not the attorney could appear in a limited capacity and whether the attorney’s appearance qualified him as official “attorney of record”. The court found that it was not bound by agreements made between client and attorney and that a court may “require more of an attorney than mere compliance with the ethical constraints of the Rules of Professional Conduct”. The court found that the attorney could make a motion to withdraw once he completed the tasks agreed upon, but that the court had ultimate discretion in granting the withdrawal.

Discover Bank v. McCullough, 2008 W: 248975 (Tenn. Ct. App.)
In a dispute over a bank card balance, cardholders chose to represent themselves after card issuer filed suit. The self-represented litigants mailed a response to court but then failed to appear at the hearing, which prompted the court to grant a default judgment to the card issuer. During the appeals process, the self represented filed papers not known within the jurisdiction. When the case reached the appellate court, the Court found that it did not have subject matter jurisdiction because the self represented litigants failed to file a court recognized notice. The court found that while it appreciated the difficulties encountered by self-represented litigants, it could not “abdicate its role as an impartial, neutral arbiter and become an advocate for the self-represented litigant”.

Burgess v. Vitola, 2008 WL 821539 (N.C.Super.)
In a legal dispute that surfaced over an alleged invasion of personal property, the plaintiff resided in North Carolina and the defendant resided in California. The defendant filed papers with the assistance of a California attorney but, on record, represented herself. The plaintiff sought recourse, arguing that assistance from counsel amounted to the unauthorized practice of law since the attorney was not licensed in North Carolina. As the Rules of Professional Conduct do not require an attorney who has provided drafting assistance to make an appearance as counsel of record, the court found that it had no authority to sanction the California attorney. It did, however, require that the defendant file an affidavit that she intended to proceed pro se and not seek legal assistance unless the attorney is licensed to practice in North Carolina.

Future Lawn, Inc v. Steinberg, 2008 Ohio 4127
Attorney was hired by appellant to handle a legal malpractice claim. The attorney was referred by appellant’s general counsel, to act in a in a matter concerning the handling of an environmental report in a real estate transaction several years prior. A settlement was reached in the matter and around the same time, general counsel was replaced. Following a dispute regarding unpaid legal fees, appellants were sued by former general counsel. Appellants responded with a separate suit, alleging counsel had committed malpractice. They implicated the limited representation attorney, suggesting the attorney had an obligation to advise them of issues surrounding claims of general counsel’s malpractice. The court found that representation by attorney was expressly limited to the original malpractice claim, and that no requirement existed for client consultation before limited the scope of representation. The attorney had no duty to investigate actions of general counsel.

Elmore v. McCammon (1986) 640 F. Supp. 905
“… the right to file a lawsuit pro se is one of the most important rights under the constitution and laws.”

Jenkins v. McKeithen, 395 U.S. 411, 421 (1959); Picking v. Pennsylvania R. Co., 151 Fed 2nd 240; Pucket v. Cox, 456 2nd 233
Pro se pleadings are to be considered without regard to technicality; pro se litigants’ pleadings are not to be held to the same high standards of perfection as lawyers.

Maty v. Grasselli Chemical Co., 303 U.S. 197 (1938)
“Pleadings are intended to serve as a means of arriving at fair and just settlements of controversies between litigants. They should not raise barriers which prevent the achievement of that end. Proper pleading is important, but its importance consists in its effectiveness as a means to accomplish the end of a just judgment.”

Puckett v. Cox, 456 F. 2d 233 (1972) (6th Cir. USCA)
It was held that a pro se complaint requires a less stringent reading than one drafted by a lawyer per Justice Black in Conley v. Gibson (see case listed above, Pro Se Rights Section).

Picking v. Pennsylvania Railway, 151 F.2d. 240, Third Circuit Court of Appeals
The plaintiff’s civil rights pleading was 150 pages and described by a federal judge as “inept”. Nevertheless, it was held “Where a plaintiff pleads pro se in a suit for protection of civil rights, the Court should endeavor to construe Plaintiff’s Pleadings without regard to technicalities.”

Roadway Express v. Pipe, 447 U.S. 752 at 757 (1982)
“Due to sloth, inattention or desire to seize tactical advantage, lawyers have long engaged in dilatory practices… the glacial pace of much litigation breeds frustration with the Federal Courts and ultimately, disrespect for the law.”

Sherar v. Cullen, 481 F. 2d 946 (1973)
“There can be no sanction or penalty imposed upon one because of his exercise of Constitutional Rights.”

Schware v. Board of Examiners, United State Reports 353 U.S. pages 238, 239.
“The practice of law cannot be licensed by any state/State.”

Sims v. Aherns, 271 SW 720 (1925)
“The practice of law is an occupation of common right.”

CITED http://caught.net/prose/proserulings.htm

Pro Se Forms and Forms Information (Tort Claim Forms here as well)

Introducing Digital Evidence in California State Courts

Click Here to Read Supreme Court Rulings and Laws Regarding the Introduction of Digital Evidence in California

Mandated Reporting Laws

Mandated Reporter Laws – Nurses, District Attorney’s, and Police should listen up

https://goodshepherdmedia.net/wp-content/uploads/2022/11/laws-EVERYONE-should-know-especially-cops.mp4

https://www.youtube.com/@DonutOperator

California Constitution
Article VI – Judicial
Section 13.

Universal Citation: CA Constitution art VI § 13

SEC. 13.No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.

(Sec. 13 added Nov. 8, 1966, by Prop. 1-a. Res.Ch. 139, 1966 1st Ex. Sess.)

To Learn More…. Read MORE Below and click the links Below

Abuse & Neglect – The Mandated Reporters (Police, D.A & Medical & the Bad Actors)

Mandated Reporter Laws – Nurses, District Attorney’s, and Police should listen up
If You Would Like to Learn More About: The California Mandated Reporting LawClick Here

To Read the Penal Code § 11164-11166 – Child Abuse or Neglect Reporting Act – California Penal Code 11164-11166Article 2.5. (CANRA) Click Here

Mandated Reporter formMandated ReporterFORM SS 8572.pdf – The Child Abuse

ALL POLICE CHIEFS, SHERIFFS AND COUNTY WELFARE DEPARTMENTS INFO BULLETIN:
Click Here Officers and DA’s for (Procedure to Follow)

It Only Takes a Minute to Make a Difference in the Life of a Child learn more below

You can learn more here California Child Abuse and Neglect Reporting Law its a PDF file

Learn More About Police, The Government Officials and You….

$$ Retaliatory Arrests and Prosecution $$

Anti-SLAPP Law in California

Freedom of Assembly – Peaceful Assembly – 1st Amendment Right

Supreme Court sets higher bar for prosecuting threats under First Amendment 2023 SCOTUS

We also have the Brayshaw v. City of Tallahassee – 1st Amendment – Posting Police Address

We also have the Publius v. Boyer-Vine –1st Amendment – Posting Police & Civilians real Address

We also have the Lozman v. City of Riviera Beach, Florida (2018) – 1st Amendment – Retaliatory Police Arrests

We also have the Nieves v. Bartlett (2019) – 1st Amendment – Retaliatory Police Arrests

We also have the Hartman v. Moore (2006) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

We also have the Reichle v. Howards (2012) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

Can You Annoy the Government? – 1st Amendment

Freedom of the Press – Flyers, Newspaper, Leaflets, Peaceful Assembly – 1$t Amendment – Learn More Here

Vermont’s Top Court Weighs: Are KKK Fliers – 1st Amendment Protected Speech

We also have the Insulting letters to politician’s home are constitutionally protected, unless they are ‘true threats’ – Letters to Politicians Homes – 1st Amendment

We also have the First Amendment Encyclopedia very comprehensive – 1st Amendment

Paglia & Associates Construction v. Hamilton – Public Internet Posts & Public Criticisms – Bad Reviews – 1st Amendment

Right to Record Government Officials Engaged in the Exercise of their Official Duties

CITIZENS UNITED v. FEDERAL ELECTION COMMISSION – 1st Amendment

American Civil Liberties Union of Illinois v. Alvarez – 1st Amendment

Illinois Supreme Court Strikes Down Eavesdropping Statute as Unconstitutional – 1st Amendment

303 Creative LLC v. Elenis – 1st Amendment

Texas v. Johnson – Offensive? – 1st Amendment

Snyder v. Phelps (2011) – Offensive? – 1st Amendment

The Consumer Review Fairness Act – What It Is & Why It Matters

Learn More About True Threats Here below….

Counterman v. Colorado – Supreme Court sets higher bar for prosecuting threats under First Amendment

We also have the The Brandenburg v. Ohio (1969) – 1st Amendment

CURRENT TEST = We also have the The ‘Brandenburg test’ for incitement to violence – 1st Amendment

We also have the The Incitement to Imminent Lawless Action Test– 1st Amendment

We also have the True Threats – Virginia v. Black is most comprehensive Supreme Court definition – 1st Amendment

We also have the Watts v. United States – True Threat Test – 1st Amendment

We also have the Clear and Present Danger Test – 1st Amendment

We also have the Gravity of the Evil Test – 1st Amendment

We also have the Elonis v. United States (2015) – Threats – 1st Amendment

Speech Is Not Violence and Violence Is Not Speech

Learn More About What is Obscene…. be careful about education it may enlighten you

We also have the Miller v. California – 3 Prong Obscenity Test (Miller Test) – 1st Amendment

We also have the Obscenity and Pornography – 1st Amendment

Mi$Conduct – Pro$ecutorial Mi$Conduct Prosecutor$

Attorney Rule$ of Engagement – Government (A.K.A. THE PRO$UCTOR) and Public/Private Attorney

What is a Fiduciary Duty; Breach of Fiduciary Duty

The Attorney’s Sworn Oath

Malicious Prosecution / Prosecutorial Misconduct – Know What it is!

New Supreme Court Ruling – makes it easier to sue police

Possible courses of action Prosecutorial Misconduct

Misconduct by Judges & Prosecutor – Rules of Professional Conduct

Functions and Duties of the Prosecutor – Prosecution Conduct

Standards on Prosecutorial Investigations – Prosecutorial Investigations

Information On Prosecutorial Discretion

Why Judges, District Attorneys or Attorneys Must Sometimes Recuse Themselves

Fighting Discovery Abuse in Litigation – Forensic & Investigative Accounting – Click Here

Criminal Motions § 1:9 – Motion for Recusal of Prosecutor

Pen. Code, § 1424 – Recusal of Prosecutor

Removing Corrupt Judges, Prosecutors, Jurors and other Individuals & Fake Evidence from Your Case

National District Attorneys Association puts out its standards
National Prosecution Standards – NDD can be found here

The Ethical Obligations of Prosecutors in Cases Involving Postconviction Claims of Innocence

ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

Prosecutor’s Duty Duty to Disclose Exculpatory Evidence Fordham Law Review PDF

Chapter 14 Disclosure of Exculpatory and Impeachment Information PDF

Selected Issues in Malicious Prosecution Cases

Mi$Conduct – Judicial Mi$Conduct Judge$

Prosecution Of Judges For Corrupt Practice$

Code of Conduct for United States Judge$

Disqualification of a Judge for Prejudice

Judicial Immunity from Civil and Criminal Liability

Recusal of Judge – CCP § 170.1 – Removal a Judge – How to Remove a Judge

l292 Disqualification of Judicial Officer – C.C.P. 170.6 Form

How to File a Complaint Against a Judge in California?

Commission on Judicial Performance – Judge Complaint Online Form

Why Judges, District Attorneys or Attorneys Must Sometimes Recuse Themselves

Removing Corrupt Judges, Prosecutors, Jurors and other Individuals & Fake Evidence from Your Case

DUE PROCESS READS>>>>>>

Due Process vs Substantive Due Process learn more HERE

Understanding Due Process – This clause caused over 200 overturns in just DNA alone Click Here

Mathews v. Eldridge – Due Process – 5th, & 14th Amendment

Mathews Test – 3 Part Test– Amdt5.4.5.4.2 Mathews Test

“Unfriending” Evidence – 5th Amendment

At the Intersection of Technology and Law

We also have the Introducing TEXT & EMAIL Digital Evidence in California Courts – 1st Amendment
so if you are interested in learning about Introducing Digital Evidence in California State Courts
click here for SCOTUS rulings

Right to Travel freely – When the Government Obstructs Your Movement – 14th Amendment & 5th Amendment

What is Probable Cause? and.. How is Probable Cause Established?

Misuse of the Warrant System – California Penal Code § 170 – Crimes Against Public Justice – 4th, 5th, & 14th Amendment

What Is Traversing a Warrant (a Franks Motion)?

Dwayne Furlow v. Jon Belmar – Police Warrant – Immunity Fail – 4th, 5th, & 14th Amendment

Obstruction of Justice and Abuse of Process

What Is Considered Obstruction of Justice in California?

ARE PEOPLE LYING ON YOU?
CAN YOU PROVE IT? IF YES…. THEN YOU ARE IN LUCK!

Penal Code 115 PC – Filing a False Document in California

Penal Code 118 PC – California Penalty of “Perjury” Law

Federal Perjury – Definition by Law

Penal Code 132 PC – Offering False Evidence

Penal Code 134 PC – Preparing False Evidence

Crimes Against Public Justice

Penal Code 118.1 PC – Police Officer$ Filing False Report$

Spencer v. Peters– Police Fabrication of Evidence – 14th Amendment

Lying Cop or Citizen – PC 129 – Preparing False Statement or Report Under Oath

Penal Code 132 PC – Offering False Evidence

Penal Code 134 PC – Preparing False Evidence

Penal Code 135 PC – Destroying or Concealing Evidence

Lying Cop or Citizen – PC 129 – Preparing False Statement or Report Under Oath

Penal Code 141 PC – Planting or Tampering with Evidence in California

Penal Code 142 PC – Peace Officer Refusing to Arrest or Receive Person Charged with Criminal Offense

PC 146 Penal Code – False Arrest

Penal Code 148.5 PC – Making a False Police Report in California

Misuse of the Warrant System – California Penal Code § 170

Penal Code 182 PC – “Criminal Conspiracy” Laws & Penalties

Penal Code § 236 PC – False Imprisonment

Penal Code 664 PC – “Attempted Crimes” in California

Penal Code 31 PC – Aiding and Abetting Laws

Penal Code 32 PC – Accessory After the Fact

What is Abuse of Process?

What is a Due Process Violation? – 4th Amendment & 14th Amendment

What’s the Difference between Abuse of Process, Malicious Prosecution and False Arrest?

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

The Use and Abuse of Power by Prosecutors (Justice for All)

Misconduct by Government Know Your Rights Click Here

Under 42 U.S.C. $ection 1983 – Recoverable Damage$

42 U.S. Code § 1983 – Civil Action for Deprivation of Right$

18 U.S. Code § 242 – Deprivation of Right$ Under Color of Law

18 U.S. Code § 241 – Conspiracy against Right$

Section 1983 Lawsuit – How to Bring a Civil Rights Claim

Suing for Misconduct – Know More of Your Right$

Police Misconduct in California – How to Bring a Lawsuit

How to File a complaint of Police Misconduct? (Tort Claim Forms here as well)

Deprivation of Rights – Under Color of the Law

What is Sua Sponte and How is it Used in a California Court?

Removing Corrupt Judges, Prosecutors, Jurors
and other Individuals & Fake Evidence from Your Case

Anti-SLAPP Law in California

Freedom of Assembly – Peaceful Assembly – 1st Amendment Right

How to Recover “Punitive Damages” in a California Personal Injury Case

Pro Se Forms and Forms Information(Tort Claim Forms here as well)

What is Tort?

Tort Claims Form
File Government Claim for Eligible Compensation

Complete and submit the Government Claim Form, including the required $25 filing fee or Fee Waiver Request, and supporting documents, to the GCP.

See Information Guides and Resources below for more information.

Tort Claims – Claim for Damage, Injury, or Death (see below)

Federal – Federal SF-95 Tort Claim Form Tort Claim online here or download it here or here from us

California – California Tort Claims Act – California Tort Claim Form Here or here from us

Complaint for Violation of Civil Rights (Non-Prisoner Complaint) and also UNITED STATES DISTRICT COURT PDF

Taken from the UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA Forms source

WRITS and WRIT Types in the United States

Everything you need to know about a Defamation Case

How do I submit a request for information?

To submit a request send the request via mail, fax, or email to the agency. Some agencies list specific departments or people whose job it is to respond to PRA requests, so check their websites or call them for further info. Always keep a copy of your request so that you can show what you submitted and when.

Templates for Sample Requests

Incident Based Request: Use this template if you want records related to a particular incident, like the investigative record for a specific police shooting, an arrest where you believe an officer may have been found to have filed a false report, or to find out whether complaint that an officer committed sexual assault was sustained.
ACLU Download Word document | ACLU Download PDF

or from us Download Word document | or from us Download PDF

Officer Based Request: Use this template if you want to find any public records of misconduct related to a particular officer or if he or she has been involved in past serious uses of force.
ACLU Download Word document | ACLU Download PDF

or from us Download Word document | or from us Download PDF

The First Amendment Coalition also has some useful information to help explain the PRA process.

Sample Letter | SB 1421 & SB 16 Records

Download Word document | Download PDF

Appealing/Contesting Case/Order/Judgment/Charge/ Suppressing Evidence

First Things First: What Can Be Appealed and What it Takes to Get Started – Click Here

Options to Appealing– Fighting A Judgment Without Filing An Appeal Settlement Or Mediation

Cal. Code Civ. Proc. § 1008 Motion to Reconsider

Penal Code 1385 – Dismissal of the Action for Want of Prosecution or Otherwise

Penal Code 1538.5 – Motion To Suppress Evidence in a California Criminal Case

CACI No. 1501 – Wrongful Use of Civil Proceedings

Penal Code “995 Motions” in California – Motion to Dismiss

WIC § 700.1 – If Court Grants Motion to Suppress as Evidence

Suppression Of Exculpatory Evidence / Presentation Of False Or Misleading Evidence – Click Here

Notice of Appeal — Felony (Defendant) (CR-120) 1237, 1237.5, 1538.5(m) – Click Here

California Motions in Limine – What is a Motion in Limine?

Petition for a Writ of Mandate or Writ of Mandamus (learn more…)

PC 1385 – Dismissal of the Action for Want of Prosecution or Otherwise

Retrieving Evidence / Internal Investigation Case

Pitchess Motion & the Public Inspection of Police Records

Conviction Integrity Unit (“CIU”) of the Orange County District Attorney OCDA – Click Here

Fighting Discovery Abuse in Litigation – Forensic & Investigative Accounting – Click Here

Orange County / LA County Data, BodyCam, Police Report, Incident Reports,
and all other available known requests for data below:

SEARCH SB-1421 SB-16 Incidents of LA County, Oakland

California Senate Bill 16 (SB 16) – 2023-2024 – Peace officers: Release of Records

APPLICATION TO EXAMINE LOCAL ARREST RECORD UNDER CPC 13321 Click Here

Learn About Policy 814: Discovery Requests OCDA Office – Click Here

Request for Proof In-Custody Form Click Here

Request for Clearance Letter Form Click Here

Application to Obtain Copy of State Summary of Criminal HistoryForm Click Here

Request Authorization Form Release of Case Information – Click Here

Texts / Emails AS EVIDENCE: Authenticating Texts for California Courts

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

California Supreme Court Rules:
Text Messages Sent on Private Government Employees Lines
Subject to Open Records Requests

case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

Rules of Admissibility – Evidence Admissibility

Confrontation Clause – Sixth Amendment

Exceptions To The Hearsay Rule – Confronting Evidence

Prosecutor’s Obligation to Disclose Exculpatory Evidence

Successful Brady/Napue Cases – Suppression of Evidence

Cases Remanded or Hearing Granted Based on Brady/Napue Claims

Unsuccessful But Instructive Brady/Napue Cases

ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

Frivolous, Meritless or Malicious Prosecution – fiduciary duty

Section 832.7 – Peace officer or custodial officer personnel records

Senate Bill No. 1421 – California Public Records Act

Assembly Bill 748 Makes Video Evidence Captured by Police Agencies Subject to Disclosure as Public Records

SB 2, Creating Police Decertification Process and Expanding Civil Liability Exposure

The Right To Know: How To Fulfill The Public’s Right Of Access To Police Records

How Access to California Police Records

Los Angeles County Sheriff’s Department SB-1421 Records

SB1421 – Form Access to California Police Records

California Statewide CPRA Requests Submit a CPRA Request

Electronic Audio Recording Request of OC Court Hearings

CPRA Public Records Act Data Request – Click Here

Here is the Public Records Service Act Portal for all of CALIFORNIA Click Here

Police BodyCam Footage Release

Cleaning Up Your Record

Tossing Out an Inferior Judgement – When the Judge Steps on Due Process – California Constitution Article VI – Judicial Section 13

Penal Code 851.8 PC – Certificate of Factual Innocence in California

Petition to Seal and Destroy Adult Arrest Records – Download the PC 851.8 BCIA 8270 Form Here

SB 393: The Consumer Arrest Record Equity Act – 851.87 – 851.92 & 1000.4 – 11105 – CARE ACT

Expungement California – How to Clear Criminal Records Under Penal Code 1203.4 PC

How to Vacate a Criminal Conviction in California – Penal Code 1473.7 PC

Seal & Destroy a Criminal Record

Cleaning Up Your Criminal Record in California (focus OC County)

Governor Pardons –What Does A Governor’s Pardon Do

How to Get a Sentence Commuted (Executive Clemency) in California

How to Reduce a Felony to a Misdemeanor – Penal Code 17b PC Motion

PARENT CASE LAW

RELATIONSHIP WITH YOUR CHILDREN &
YOUR CONSTITUIONAL RIGHT$ + RULING$

YOU CANNOT GET BACK TIME BUT YOU CAN HIT THOSE IMMORAL NON CIVIC MINDED PUNKS WHERE THEY WILL FEEL YOU = THEIR BANK

Family Law Appeal – Learn about appealing a Family Court Decision Here

Amdt5.4.5.6.2 – Parental and Children’s Rights“> – 5th Amendment this CODE PROTECT$ all US CITIZEN$

9.32 – Interference with Parent / Child Relationship – 14th Amendment this CODE PROTECT$ all US CITIZEN$

Father’s Rights and Parents Rights THE CONSTITUTIONAL FRAMEWORK OF FATHERS’ RIGHTS

9.3 Section 1983 Claim Against Defendant as (Individuals) — 14th Amendment this CODE PROTECT$ all US CITIZEN$

California Civil Code Section 52.1 – The Bane ActInterference with exercise or enjoyment of individual rights

Parent’s Rights & Children’s Bill of Rights
SCOTUS RULINGS FOR YOUR PARENT RIGHTS

SEARCH of our site for all articles relating for PARENTS RIGHTS Help!

Child’s Best Interest in Custody Cases

Are You From Out of State (California)? FL-105 GC-120(A)
Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

Learn More:Family Law Appeal

Necessity Defense in Criminal Cases

Can You Transfer Your Case to Another County or State With Family Law? – Challenges to Jurisdiction

Venue in Family Law Proceedings

GRANDPARENT CASE LAW

Do Grandparents Have Visitation Rights? If there is an Established Relationship then Yes

Third “PRESUMED PARENT” Family Code 7612(C) – Requires Established Relationship Required

Cal State Bar PDF to read about Three Parent Law –
The State Bar of California family law news issue4 2017 vol. 39, no. 4.pdf

Distinguishing Request for Custody from Request for Visitation

Troxel v. Granville, 530 U.S. 57 (2000) – Grandparents – 14th Amendment

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

9.32 Particular Rights – Fourteenth Amendment – Interference with Parent / Child Relationship

Child’s Best Interest in Custody Cases

When is a Joinder in a Family Law Case Appropriate? – Reason for Joinder

Joinder In Family Law Cases – CRC Rule 5.24

GrandParents Rights To Visit
Family Law Packet OC Resource Center
Family Law Packet SB Resource Center

Motion to vacate an adverse judgment

Mandatory Joinder vs Permissive Joinder – Compulsory vs Dismissive Joinder

When is a Joinder in a Family Law Case Appropriate?

Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848

Punsly v. Ho (2001) 87 Cal.App.4th 1099

Zauseta v. Zauseta (2002) 102 Cal.App.4th 1242

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

Ian J. v. Peter M

Family Treatment Court Best Practice Standards

Download Here this Recommended Citation

Sanctions and Attorney Fee Recovery for Bad Actors

FAM § 3027.1 – Attorney’s Fees and Sanctions For False Child Abuse Allegations – Family Code 3027.1 – Click Here

FAM § 271 – Awarding Attorney Fees– Family Code 271 Family Court Sanction Click Here

Awarding Discovery Based Sanctions in Family Law Cases – Click Here

FAM § 2030 – Bringing Fairness & Fee Recovery – Click Here

Zamos v. Stroud – District Attorney Liable for Bad Faith Action – Click Here

Malicious Use of Vexatious Litigant – Vexatious Litigant Order Reversed

Epic Criminal / Civil Right$ SCOTUS Help – Click Here

Epic Parents SCOTUS Ruling – Parental Right$ Help – Click Here

Judge’s & Prosecutor’s Jurisdiction– SCOTUS RULINGS on

Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors

Please take time to learn new UPCOMING

The PROPOSED Parental Rights Amendment
to the US CONSTITUTION Click Here to visit their site

The proposed Parental Rights Amendment will specifically add parental rights in the text of the U.S. Constitution, protecting these rights for both current and future generations.

The Parental Rights Amendment is currently in the U.S. Senate, and is being introduced in the U.S. House.

Why Make a Federal Case Out of It?

The Truth News — Tue, 05 Nov 2024 09:18:19 +0000

Why Make a Federal Case Out of It?

U.S. Const. art. III, § 2; 28 U.S.C. §§ 1331-1332, 1367.
- U.S. Constitution Article III, Section 2, and 28 U.S.C. §§ 1331, 1332, and 1367 relate to the jurisdiction of federal courts in the United States:
  - U.S. Constitution Article III, Section 2 Grants the judicial power to the federal courts to hear cases arising under the Constitution, laws, and treaties of the United States. It also grants the Supreme Court original jurisdiction over cases involving ambassadors, public ministers, and consuls, and cases where a state is a party.
  - 28 U.S.C. § 1331 Grants federal district courts original jurisdiction over civil actions that arise under the Constitution, laws, or treaties of the United States. The well-pleaded complaint rule determines if a case “arises under” federal law.
  - 28 U.S.C. § 1332 Grants federal courts jurisdiction over civil actions between citizens of different states, or between a citizen of a state and a subject of a foreign state, if the amount in controversy exceeds $75,000. This is known as diversity jurisdiction.
  - 28 U.S.C. § 1367 Grants federal district courts supplemental jurisdiction over claims that are related to claims in an action over which the court already has jurisdiction. It also tolls the period of limitations for claims while they are pending and for 30 days after they are dismissed.
see U.S. Const. amend. IV, § 1; International Show Co. V. Washington, 326 U.S. 310, 316 (1945)
- Personal jurisdiction is constitutional when a defendant has minimum contacts with the state where a lawsuit is brought such that notions of fair play and substantial justice would not be offended.
see 28 U.S.C. § 1391 Venue generally
1. Applicability of Section.—Except as otherwise provided by law—
  
  (1)this section shall govern the venue of all civil actions brought in district courts of the United States; and
  
  (2)the proper venue for a civil action shall be determined without regard to whether the action is local or transitory in nature.
2. Venue in General.—A civil action may be brought in—
  
  (1)a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;
  
  (2)a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or
  
  (3)if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action.
3. Residency.—For all venue purposes—
  
  (1)a natural person, including an alien lawfully admitted for permanent residence in the United States, shall be deemed to reside in the judicial district in which that person is domiciled;
  
  (2)an entity with the capacity to sue and be sued in its common name under applicable law, whether or not incorporated, shall be deemed to reside, if a defendant, in any judicial district in which such defendant is subject to the court’s personal jurisdiction with respect to the civil action in question and, if a plaintiff, only in the judicial district in which it maintains its principal place of business; and
  
  (3)a defendant not resident in the United States may be sued in any judicial district, and the joinder of such a defendant shall be disregarded in determining where the action may be brought with respect to other defendants.\
4. Residency of Corporations in States With Multiple Districts.— For purposes of venue under this chapter, in a State which has more than one judicial district and in which a defendant that is a corporation is subject to personal jurisdiction at the time an action is commenced, such corporation shall be deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State, and, if there is no such district, the corporation shall be deemed to reside in the district within which it has the most significant contacts.\
5. Actions Where Defendant Is Officer or Employee of the United States.—
  
  (1)In general.— A civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, or the United States, may, except as otherwise provided by law, be brought in any judicial district in which (A) a defendant in the action resides, (B) a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (C) the plaintiff resides if no real property is involved in the action. Additional persons may be joined as parties to any such action in accordance with the Federal Rules of Civil Procedure and with such other venue requirements as would be applicable if the United States or one of its officers, employees, or agencies were not a party.
  
  (2)Service.— The summons and complaint in such an action shall be served as provided by the Federal Rules of Civil Procedure except that the delivery of the summons and complaint to the officer or agency as required by the rules may be made by certified mail beyond the territorial limits of the district in which the action is brought.
6. Civil Actions Against a Foreign State.—A civil action against a foreign state as defined in section 1603(a) of this title may be brought—
  
  (1)in any judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated;
  
  (2)in any judicial district in which the vessel or cargo of a foreign state is situated, if the claim is asserted under section 1605(b) of this title;
  
  (3)in any judicial district in which the agency or instrumentality is licensed to do business or is doing business, if the action is brought against an agency or instrumentality of a foreign state as defined in section 1603(b) of this title; or
  
  (4)in the United States District Court for the District of Columbia if the action is brought against a foreign state or political subdivision thereof.
7. Multiparty, Multiforum Litigation.— A civil action in which jurisdiction of the district court is based upon section 1369 of this title may be brought in any district in which any defendant resides or in which a substantial part of the accident giving rise to the action took place.
  
  (June 25, 1948, ch. 646, 62 Stat. 935; Pub. L. 87–748, § 2, Oct. 5, 1962, 76 Stat. 744; Pub. L. 88–234, Dec. 23, 1963, 77 Stat. 473; Pub. L. 89–714, §§ 1, 2, Nov. 2, 1966, 80 Stat. 1111; Pub. L. 94–574, § 3, Oct. 21, 1976, 90 Stat. 2721; Pub. L. 94–583, § 5, Oct. 21, 1976, 90 Stat. 2897; Pub. L. 100–702, title X, § 1013(a), Nov. 19, 1988, 102 Stat. 4669; Pub. L. 101–650, title III, § 311, Dec. 1, 1990, 104 Stat. 5114; Pub. L. 102–198, § 3, Dec. 9, 1991, 105 Stat. 1623; Pub. L. 102–572, title V, § 504, Oct. 29, 1992, 106 Stat. 4513; Pub. L. 104–34, § 1, Oct. 3, 1995, 109 Stat. 293; Pub. L. 107–273, div. C, title I, § 11020(b)(2), Nov. 2, 2002, 116 Stat. 1827; Pub. L. 112–63, title II, § 202, Dec. 7, 2011, 125 Stat. 763.)

Civil Resource Manual

45. Removal

When suit has been brought against the government, or an officer or agency thereof, in a state or local court, an important threshold question is whether the action should be removed to the United States district court. In suits brought against the United States under 28 U.S.C. § 2410 (see USAM 4-4.540), removal will be left to the discretion of the USA, absent a specific request from the Civil Division concerning whether or not to remove. In determining whether or not to remove such cases or to recommend the removal of other cases, the USA should consider:

The likelihood of a fair disposition in the state or local court
Whether federal statutes, regulation or decisional law may be challenged in the litigation
The preference for taking appeals through the federal court system particularly When an open legal issue is involved
The relative convenience of handling the case for the U.S. Attorney
Whether the party suing the United States is attempting to secure a federal forum by bringing a facially jurisdictionally invalid suit against the United States

As noted in USAM 4-2.100, the United States may not be sued in state court at all, absent express statutory consent. Formerly, removal to the federal court of such an unconsented suit did not cure the jurisdictional defect, even in a situation in which the federal court would have had jurisdiction if the action had originally been instituted there. See Minnesota v. United States, 305 U.S. 382, 388-389 (1939); Gleason v. United States, 458 F.2d 171, 174 (3d Cir. 1972). This doctrine of “derivative jurisdiction” was abolished by section 3 of the Judicial Improvements Act of 1985, codified at 28 U.S.C. § 1441(e). See Lewis v. Windsor Door Co., 926 F.2d 729, 730 n.2 (8th Cir. 1991).

In other civil suits against government officers, employees, service personnel, and agencies, and particularly in cases in which personal injury, death, a significant federal interest, or property damage is involved, care should be taken to remove to the United States district court. Most of these actions will have to be removed within the thirty days specified in 28 U.S.C. § 1446(b). However, removal of tort suits under the provisions of the Federal Employees Liability Reform and Tort Compensation Act of 1988, 28 U.S.C. § 2679(d)(2), may be effected any time prior to trial, as may most suits against a member of the armed forces on account of an act done under color of office or status. See 28 U.S.C. § 1442a. Garnishment actions against the government seeking child support or alimony payments pursuant to 42 U.S.C. § 659 ordinarily should be removed unless the client agency will honor the garnishment writ or order.

The statute generally authorizing removal of state court suits against federal officers for acts under color of office, see 28 U.S.C. § 1442(a)(1), does not permit removal by federal agencies. Int’l Primate Protection League v. Adm’rs of Tulane Educational Fund, 500 U.S. 72, 76 (1991) [Editor’s Note: 28 U.S.C. § 1442 was amended in 1996 to allow agencies to remove cases to federal court].

[updated September 2000] [cited in USAM 4-2.400] source

28 U.S. Code § 1446 – Procedure for removal of civil actions

Generally.—A defendant or defendants desiring to remove any civil action from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.
Requirements; Generally.—
1. The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.
2. 1. When a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action.
  2. Each defendant shall have 30 days after receipt by or service on that defendant of the initial pleading or summons described in paragraph (1) to file the notice of removal.
  3. If defendants are served at different times, and a later-served defendant files a notice of removal, any earlier-served defendant may consent to the removal even though that earlier-served defendant did not previously initiate or consent to removal.
3. Except as provided in subsection (c), if the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.
Requirements; Removal Based on Diversity of Citizenship.—
1. A case may not be removed under subsection (b)(3) on the basis of jurisdiction conferred by section 1332 more than 1 year after commencement of the action, unless the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action.
2. If removal of a civil action is sought on the basis of the jurisdiction conferred by section 1332(a), the sum demanded in good faith in the initial pleading shall be deemed to be the amount in controversy, except that—
  1. the notice of removal may assert the amount in controversy if the initial pleading seeks—
    1. nonmonetary relief; or
    2. a money judgment, but the State practice either does not permit demand for a specific sum or permits recovery of damages in excess of the amount demanded; and
  2. removal of the action is proper on the basis of an amount in controversy asserted under subparagraph (A) if the district court finds, by the preponderance of the evidence, that the amount in controversy exceeds the amount specified in section 1332(a).
3. 1. If the case stated by the initial pleading is not removable solely because the amount in controversy does not exceed the amount specified in section 1332(a), information relating to the amount in controversy in the record of the State proceeding, or in responses to discovery, shall be treated as an “other paper” under subsection (b)(3).
  2. If the notice of removal is filed more than 1 year after commencement of the action and the district court finds that the plaintiff deliberately failed to disclose the actual amount in controversy to prevent removal, that finding shall be deemed bad faith under paragraph 1).
Notice to Adverse Parties and State Court.—Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.
Counterclaim in 337 Proceeding.—With respect to any counterclaim removed to a district court pursuant to section 337(c) of the Tariff Act of 1930, the district court shall resolve such counterclaim in the same manner as an original complaint under the Federal Rules of Civil Procedure, except that the payment of a filing fee shall not be required in such cases and the counterclaim shall relate back to the date of the original complaint in the proceeding before the International Trade Commission under section 337 of that Act
 [1] Where the civil action or criminal prosecution that is removable under section 1442(a) is a proceeding in which a judicial order for testimony or documents is sought or issued or sought to be enforced, the 30-day requirement of subsection (b) of this section and paragraph (1) of section 1455(b) is satisfied if the person or entity desiring to remove the proceeding files the notice of removal not later than 30 days after receiving, through service, notice of any such proceeding.

(June 25, 1948, ch. 646, 62 Stat. 939; May 24, 1949, ch. 139, § 83, 63 Stat. 101; Pub. L. 89–215, Sept. 29, 1965, 79 Stat. 887; Pub. L. 95–78, § 3, July 30, 1977, 91 Stat. 321; Pub. L. 100–702, title X, § 1016(b), Nov. 19, 1988, 102 Stat. 4669; Pub. L. 102–198, § 10(a), Dec. 9, 1991, 105 Stat. 1626; Pub. L. 103–465, title III, § 321(b)(2), Dec. 8, 1994, 108 Stat. 4946; Pub. L. 104–317, title VI, § 603, Oct. 19, 1996, 110 Stat. 3857; Pub. L. 112–51, § 2(c), Nov. 9, 2011, 125 Stat. 545; Pub. L. 112–63, title I, §§ 103(b), 104, Dec. 7, 2011, 125 Stat. 760, 762.)

The What, When, How, and Why of Removing to Federal Court Before a Defendant Is “Properly Joined and Served”

Defendants often seek to move their cases to federal court after being sued in state court for reasons such as procedural consistency, efficient docket management, and reduced liability.
“Snap removal” is a procedural play where both forum and out-of-state defendants can remove a case to federal court before any in-state, forum defendant is formally served, allowing them to assert federal question or diversity jurisdiction.
While snap removals have been controversial, four federal circuit courts of appeals have upheld the practice, emphasizing the plain meaning of the removal statute and its effectiveness in discouraging fraudulent attempts to make lawsuits removal-proof.

Defendants, including individuals and corporate entities, often want to remove their cases to federal court after being sued in state court. There are frequently manifold reasons for doing so. Federal courts can provide consistency in procedure, more efficient docket management, increased opportunities for final resolution of asserted claims through motion practice, and reduced liability in the case of adverse judgments. But the strict metes and bounds of a federal court’s subject matter jurisdiction and the statutory requirements of removal under 28 U.S.C. §§ 1441 and 1446 limit a defendant’s ability to proceed in federal court once an action has been filed in state court. Courts normally defer to a plaintiff’s choice of forum and endeavor to prevent forum shopping between state and federal systems. Moreover, federal courts are courts of limited jurisdiction—unlike state courts, which have general jurisdiction—and they have an affirmative and ongoing obligation to ensure that the cases before them are based on federal question or diversity jurisdiction. See 28 U.S.C. §§ 1331, 1332; Fed. R. Civ. P. 12(h)(3). How then can defendants desiring to have a federal court assess their defenses and potential counterclaims navigate these barriers to entry? An answer lies in the oft-debated but readily available procedural play of “snap removal.”

Federal Courts’ Limited Jurisdiction

Congress has broadly authorized federal courts to exercise subject matter jurisdiction over all civil actions “arising under the Constitution, laws, or treaties of the United States,” 28 U.S.C. § 1331, or “where the matter in controversy exceeds the sum or value of $75,000” and the dispute is between citizens of different states, U.S. citizens and foreign citizens, or U.S. citizens and foreign states. 28 U.S.C. § 1332(a). The existence of federal question jurisdiction is often conflated with a plaintiff’s need to prove a defendant’s obligations under federal law or a defendant’s reliance on federal law as a defense, as in the case of preemption. See, e.g., Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 8 (2003). Diversity jurisdiction is often more clear-cut, but a plaintiff may attempt to preemptively defeat such jurisdiction by naming a defendant that is a citizen of the same state—i.e., a forum defendant. See, e.g., Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97 (1921); accord Johnson v. Am. Towers, LLC, 781 F.3d 693, 704 (4th Cir. 2015).

Removal Generally

Under the federal removal statute, a case that implicates federal question or diversity jurisdiction is removable within 30 days after formal service of process of the initial pleading. 28 U.S.C. § 1446(b)(1). Whether an initial pleading has been properly served varies by state, but the U.S. Supreme Court has clarified that the 30-day period does not begin until the plaintiff has effectuated formal service of process. Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 354 (1999). This is crucial, as the filing of a summons or complaint alone does not trigger the removal clock. Id. at 347–48. There must also be proper service. See id. Where a state court complaint names multiple defendants, all “properly joined and served” defendants must consent to removal unless they are fraudulently joined. 28 U.S.C. § 1446(b)(2)(A); see also Home Depot U.S.A., Inc. v. Jackson, 139 S. Ct. 1743, 1746 (2019).

There is a readily apparent logic to these limitations. Plaintiffs are afforded deference in their choice of forum as masters of their complaint. Foreign or out-of-state defendants are not forced to litigate a case in a state court with which they are unfamiliar without some avenue of reprieve. And in multi-defendant cases, one defendant cannot unilaterally change the forum without appropriate notice to codefendants.

Snap Removals

The question then is this: Where a defendant would prefer to pursue claims and defenses in federal court—for reasons real or perceived, anecdotal or empirical—how can that be effectuated once a complaint is filed in state court? If the alleged claims arise under federal law or are completely preempted, defendants can remove as usual and assert federal question jurisdiction. In addition, if complete diversity among the parties on both sides of the v does not exist, diversity removal is not possible. In the intermediate case, however, where there is not federal question jurisdiction, complete diversity does exist, and a forum defendant is the only bar to removal under section 1441(b)(2), the way to navigate a case from state to federal court has been more difficult. But the path forward is now more favorable. A close read of the removal statute provides the solution: A forum defendant does not actually exist until that defendant has been “properly joined and served.”

Recognizing this window of opportunity, fast-acting and savvy defendants have charted a path in the past two decades, which has been validated by four federal circuit courts of appeals: snap removal. With this procedural mechanism, both forum and out-of-state defendants can remove a case to federal court with arguable or no federal question jurisdiction and complete diversity among the named defendants as long as they do so before any in-state, forum defendant is formally served.

Once removed, the defendant or defendants can assert federal question jurisdiction if it exists, and can rely on diversity jurisdiction if it does not, to stay in federal court. Further, and importantly, the federal court’s decision on the propriety of removal will generally be final as a practical matter, because the denial of a motion to remand is an interlocutory order that is not usually subject to immediate appeal. See, e.g., 28 U.S.C. § 1447(d); 15A Charles Wright, Arthur Miller & Edward Cooper, Federal Practice and Procedure § 3914.11 (3d ed. 1992) (“One aspect of appealing orders as to removal and remand remains blessedly simple. An order denying remand is not final. . . .”); see also Estate of Bishop By & Through Bishop v. Bechtel Power Corp., 905 F.2d 1272, 1274–75 (9th Cir. 1990); Neal v. Brown, 980 F.2d 747, 748 (D.C. Cir. 1992) (collecting cases from the First, Second, Third, Fourth, Fifth, Seventh, and Ninth Circuits).

Although a path has been laid, the issue of how to leverage the window of time between the filing of a summons and complaint and service poses another barrier to entering a federal courthouse’s doors. Thankfully, the ability to monitor court dockets electronically has made it easier to traverse this final hurdle. However, it does require a keen and vigilant eye on the potential litigation landscape and an ability to file removal papers quickly in what amounts to a service race to the courthouse with plaintiffs.

Snap Decisions

Unsurprisingly, snap removals have been controversial among courts and commentators alike. Opponents criticize the practice as contrary to the spirit of diversity jurisdiction—especially when the in-state defendant is the party removing the case—and an unfair exploitation of a procedural technicality. See, e.g., Goodwin v. Reynolds, 757 F.3d 1216, 1221 (11th Cir. 2014) (affirming Rule 41(a)(2) dismissal where plaintiff filed a state court action and provided courtesy copies to defendants—one of whom was a forum defendant—and defendants removed the action before formal service after interpreting the purpose of “properly joined and served” as an effort to prevent “gamesmanship” by plaintiffs and defendants). Critics also argue that snap removal may lead to improper conduct such as a defendant misleading a plaintiff into not formally serving a complaint or evading formal service to buy time to remove.

Proponents of the practice point to the statutory text, which explicitly conditions the forum defendant rule on “served” defendants, as well as traditional tools of statutory construction. They argue that the plain meaning of the removal statute permits snap removal. Further, there is a practical and policy argument supporting the practice: Snap removals disincentivize plaintiffs from attempting to make lawsuits removal-proof by fraudulently joining in-state defendants that they have no intention of actually serving.

To date, there is a split of authority among district courts addressing whether the practice is permissible, but four circuit courts of appeals addressing the issue have upheld the practice. The Sixth Circuit led the way in 2001, noting in a footnote that “the inclusion of an unserved resident defendant in [an] action does not defeat removal” based on diversity jurisdiction. McCall v. Scott, 239 F.3d 808, 813 n.2 (6th Cir.), amended on denial of reh’g, 250 F.3d 997 (6th Cir. 2001). Several years later, in 2018, the Third Circuit upheld snap removal after a substantive analysis in Encompass Insurance Co. v. Stone Mansion Restaurant Inc., 902 F.3d 147 (3d. Cir. 2018). To be sure, the court described the procedure as “pre-service machinations to remove a case that [] otherwise could not [be removed.]” Id. at 154. But after addressing the issue as one of statutory interpretation, the Third Circuit held that snap removal is proper based on “the plain meaning of the statute” and the absence of “an extraordinary showing of contrary legislative intent.” Id. The Second Circuit soon after followed suit and affirmed the propriety of this procedure without hesitation, finding it “is neither absurd nor fundamentally unfair.” Gibbons v. Bristol-Myers Squibb Co., 919 F.3d 699, 707 (2d Cir. 2019) (“Put simply, the result here—that a home-state defendant may in limited circumstances remove actions filed in state court on the basis of diversity of citizenship—is authorized by the text of Section 1441(b)(2)[.]”). And, most recently, the Fifth Circuit has given its blessing, explaining it does not have “any doubt about the propriety of removal because . . . the text [section 1441(b)(2)] is unambiguous.” Texas Brine Co., L.L.C. v. Am. Arbitration Ass’n, Inc., 955 F.3d 482, 487 (5th Cir. 2020).

Since these decisions, district courts in several circuits have allowed allow snap removals. E.g., Kornfeind v. Kia Am., Inc., No. 23-cv-01796, 2023 WL 8456111, at *2 (C.D. Cal. Dec. 6, 2023); DMO Methuen, LLC v. FCA U.S., LLC, No. 23-cv-10724, 2023 WL 7548084, at *3 (D. Mass. Sept. 29, 2023); WFG Nat’l Title Ins. Co. v. Bay, No. 22-cv-01010, 2023 WL 6595846, at *3 n.3 (D. Or. Aug. 30, 2023), adopted, 2023 WL 6930918 (D. Or. Oct. 19, 2023).

The U.S. Supreme Court and other circuits courts of appeals have yet to weigh in on the practice.

Snapbacks?

Of note, the removal statute was amended by Congress in 2011, after snap removals had become more common, but the relevant language allowing snap removals was not altered. Congress has since contemplated taking action to change the removal statute. House Resolution 5801, styled as the Removal Jurisdiction Clarification Act of 2020, would have essentially eliminated snap removals by requiring district courts to remand (i.e., “snap back”) snap removal cases upon a plaintiff’s motion. But as its title suggests, the bill has languished for several years in the House Committee on the Judiciary (specifically the Subcommittee on Courts, Intellectual Property, and the Internet). There is no immediate indication that this legislation will ever become law.

Key Takeaways

Given all this, there are a few key takeaways. First, for defendants and their counsel who have reason to anticipate litigation and prefer to litigate in federal court, it is important to monitor state court docket activity. Second, defendants and counsel should be fluent in the service of process rules in the states where litigation is expected. Third, it is a good practice, when litigation is anticipated, to prepare snap removal templates that can be tailored and filed shortly after notice of a filed state court complaint is received. Finally, the grass is not always greener in federal court for every litigation. The pace is often faster, and state court may offer greater flexibility with procedural and evidentiary rules. In addition, the potential judge assignment in either state or federal court is a key consideration that can have a material effect on the course of a litigation. Although time is of the essence with snap removal, be sure to consider these factors as well before filing. source

Requirements for Removing a Case From State Court to Federal Court

State and federal courts have overlapping jurisdiction over many legal claims. Plaintiffs are responsible for choosing where to file their lawsuits, but defendants can have their say in some situations. “Removal” is the process of transferring a lawsuit filed in state court to the United States District Court with jurisdiction over the same area.

A defendant can remove a case from state to federal court by filing a notice of removal in federal court and then notifying the state court and the other parties. They might need the agreement or joinder of any other defendants, or they might be able to remove a case on their own. After removal, the state court no longer has jurisdiction over the lawsuit. A plaintiff can move the federal court to remand the case to state court, but the state court otherwise has no further involvement. Before removing a case, a defendant should consider the potential advantages of federal court and review the jurisdictional requirements and local rules for removal.

Why Remove a Case to Federal Court?

Federal courts may present certain advantages for defendants. For example:

Since federal judges have lifetime appointments, their courts often offer more consistency in terms of matters like docketing.
Federal courts tend to have more experience with certain types of lawsuits, so removal could mean that the case makes it through the court more efficiently.
Rules of procedure and caselaw are often more consistent in federal court. The Federal Rules of Civil Procedure are the same throughout the nation, and all district courts in a circuit are bound by the same precedents.
Jury pools in federal courts usually come from a wider geographic area.

If a defendant decides that federal court would offer enough advantages, they should begin looking at the procedure for removal.

Deadline to Remove a Case

A defendant has 30 days from the date when they receive the plaintiff’s petition or complaint to remove the case to federal court. A case that is not removable when it is first filed can become removable later if the plaintiff adds new claims, joins more defendants, or increases the amount in controversy. A defendant can remove a case within 30 days of receiving an amended petition or complaint. In many situations, however, the defendant cannot remove the case if more than one year has elapsed since the lawsuit was first filed.

Federal Subject Matter Jurisdiction

A case is removable to federal court only if the federal court would have had subject matter jurisdiction in the first place. The two most well-known bases for federal court subject-matter jurisdiction are:

Federal question jurisdiction: The case arises under the US Constitution or a federal statute; and
Diversity jurisdiction: The plaintiff(s) and defendant(s) are from different states, and the amount in controversy is at least $75,000.

Federal courts can exercise supplemental jurisdiction over state-law claims that are closely related to the other claims in the lawsuit.

If a plaintiff who is a citizen of California files suit in a California state court against a defendant who is a citizen of Minnesota, for example, they could file in federal court if the amount of their claims is $75,000 or more. If a plaintiff is asserting causes of action under both federal and state laws, a federal court could have jurisdiction over all the claims under federal question and supplemental jurisdiction.

A lawsuit that is removable based solely on diversity jurisdiction is subject to an additional restriction. It cannot be removed if any defendant is a citizen of the state in which it is filed.

Venue for Removal

Once a defendant has determined that a federal court can exercise subject matter jurisdiction over the lawsuit, they must identify the court where they can file a notice of removal. Federal law states that removal must be to the district court in “the district and division within which such action is pending.” If a plaintiff files a lawsuit in a New York state court in Manhattan, for example, the court to which the case should be removed would be in the Southern District of New York.

Filing the Notice of Removal

The procedure and timing for filing a notice of removal partly depend on the basis for federal subject matter jurisdiction. The notice of removal must include “a short and plain statement of the grounds for removal.” The defendant must attach copies of all the documents served in the state case.

When a defendant seeks to remove a case based on general federal jurisdiction, all of the defendants who have been served in the state case must either consent or join the removal. If a defendant wants to remove the case more than 30 days after a different defendant was served, that defendant can still consent to removal.

If a lawsuit is not initially removable, a plaintiff can render it removable later, such as by adding a claim that falls under federal question jurisdiction. A defendant can remove the case within 30 days of receiving the amended complaint or petition, as long as the original pleading was filed no more than one year earlier. A court can waive the one-year limit if it finds that the plaintiff “acted in bad faith in order to prevent a defendant from removing the action.” For example, a plaintiff who misrepresented the amount in controversy to avoid diversity jurisdiction may be considered to have acted in bad faith.

Notice to State Court and Other Parties

The defendant must notify the other parties and the state court “promptly” after filing the notice of removal in federal court. It must provide written notice to the other parties and file a copy of the notice with the clerk of the state court.

Severing State-Law Claims

The federal court will review its jurisdiction over the causes of action in the lawsuit. It can exercise supplemental jurisdiction over state-law claims. If it finds that it does not have supplemental jurisdiction, the court may sever those claims from the lawsuit and remand them to state court.

Cases That Are Not Removable

Federal law states that certain claims may not be removed to federal court. These include claims against railroads and motor carriers for $10,000 or less, workers’ compensation claims, and civil lawsuits brought under the Violence Against Women Act. source

Removal to Federal Court

The plaintiff is the master of his/her complaint, including where and in what court it is filed. However, the defendant can sometimes wrest the complaint out of state court and have it heard in federal court instead.

Procedurally, it is simple. The defendant files a motion to remove in federal court, a notice to the same effect in state court, and gives notice to all the parties. The case is then docketed in federal court and proceeds there. For examples of removal petitions (sometimes called notices), filter this Docket Search by jurisdiction. See also Form – Petition for Removal, and Form – Notice to State Court of Removal.

After defendants remove the case to federal court, the plaintiffs may move to remand it back to state court. The federal court can also remand the case back to state court on its own (sua sponte) if the court determines it lacks jurisdiction to consider the action. For additional information about remand, see Overview – Remand.

Removal, governed by 28 U.S.C. § 1441, ends the case in state court and transfers the action to federal court instead. Generally:

• only a case that could have originally been brought in federal court is subject to removal;

• only the defendant can remove the case; and

• all defendants must agree to remove the action (with limited exceptions – see below).

Federal Jurisdiction Required

Only cases that would have had original jurisdiction in a federal district court may be removed from state court. 28 U.S.C. § 1441. See Overview – Subject Matter Jurisdiction. Therefore, the defendant has to assert and demonstrate federal question, diversity, or statutory jurisdiction.

Federal question jurisdiction, 28 U.S.C. § 1331

Whether the complaint presents a federal question is judged by the well-pleaded complaint rule. See Point of Law (POL). That is, for federal question jurisdiction to attach, an issue of federal law must appear on the face of the complaint. If the complaint includes only state-law claims, a federal defense is not enough to support removal, even if the complaint anticipates that the defendants will assert it. POL.

But the plaintiff can’t avoid stating a federal claim simply by “artfully pleading” around a necessary issue of federal law embedded in the claims. POL. If a substantive issue of federal law or important federal policy must be decided to provide relief in the complaint, that can support removal. For example:

• Courts permit removal where federal law completely preempts state law. This is a narrow exception, but issues of securities law, labor law, ERISA, and other comprehensive regulatory schemes provide examples of state law claims or issues that must be decided under federal law.

• Courts may hold that a claim is necessarily federal, where the right to relief, if any, depends on resolution of a substantial, disputed federal question. POL.

Diversity jurisdiction: more stringent than under 28 U.S.C. § 1332

Diversity must be complete AND no defendant can be a citizen of the state in which the suit is brought. 28 U.S.C. § 1441(b)(2). This is a more stringent rule than the rule for cases originally filed in federal court. However, most circuits hold that the “no resident citizen” requirement isn’t jurisdictional and can be waived if no remand motion is filed within the required period. POL.

For purposes of the rule, a corporation is a citizen of both its state of incorporation and that of its principal place of business. 28 U.S.C. § 1332(c)(1). There are specific rules for each type of entity, so the statutes must be carefully reviewed. 28 U.S.C. § 1332(d).

The defendant must show by a preponderance of the evidence that the amount in controversy requirement for diversity jurisdiction is met. POL.

If the complaint doesn’t assert an amount in controversy, the defendants must make a good faith estimate of the amount based on the pleadings. POL. Jurisdictions have different rules about proving the amount in controversy, so jurisdictional-specific research is required.

Only Defendants Remove

The statute says “defendant or defendants” can file the notice of removal. Counterclaim defendants and third-party defendants don’t count as “defendants” for purposes of being able to initiate removal.

All Defendants Must Join/Consent

This is required unless removal is based on CAFA (see below). POL. The consent for removal must be explicit and all defendants must sign the removal filing in federal court.

PRACTICE TIP: Gauge and get consent from all co-defendants well before the deadline. It will be required in writing to file the notice.

Timing

Notice of removal must be filed in state court within 30 days “after receipt … through service or otherwise, of a copy of the initial pleading setting forth the claim for relief.” 28 U.S.C. § 1446.

If the case becomes removable after that time expires, a notice of removal must be filed within 30 days of defendant’s notice of the change (e.g., the filing of a revised complaint stating a federal claim).

One year is the absolute cut off if a federal court’s jurisdiction is based on diversity jurisdiction. CAFA is a possible exception (see below). 28 U.S.C. § 1446(c)(1).

WATCH YOUR DEADLINES. Did the defendant already respond to the complaint in state court? If not, following removal, a response is due 21 days from the date the defendant received summons and the complaint, or five days from the date of removal, whichever is longer, to file a response to the complaint. See FRCP 81(c).

PRACTICE TIP: Consider contacting plaintiff to stipulate a date for response.

Procedure

In general, a defendant must file a petition for removal in federal court, a notice of removal in the state court, and give notice of the removal to all parties in the action. See Overview – Removal Process (28 U.S.C. § 1446).

PRACTICE TIP: Local rules may dictate the format of certain aspects of the petition or notice, and might impact what must be included in the petition. To find local rules, click on the relevant state on the map under State Resources on the Litigation Intelligence Center.

Generally:

• Attach the petition for removal to the state court notice.

• Attach the state court notice to the federal petition for removal.

• Attach a copy of everything in the state court docket to the petition for removal.

Removal Jurisdiction Is Narrow

The burden of establishing federal jurisdiction is on the party seeking removal. The statute is strictly construed against removal jurisdiction. POL.

Fee Shifting Provision

28 U.S.C. § 1447(c) includes a fee shifting provision. If the court finds there was no “objectively reasonable basis” for removal, it can award fees and costs of remand to the plaintiff. POL.

CAFA Removal

The Class Actions Fairness Act 28 U.S.C. § 1453 (CAFA) was written to expand federal court access for class actions. CAFA generally permits removal where:

• The case is a class action under FRCP 23 or similar state rule or statute;

• The aggregate number of class members in all proposed classes is 100 or greater; and

• The amount in controversy is $5 million or more (aggregated among claims and plaintiffs, exclusive of interest and costs).

The remand rules under CAFA are more relaxed from those that generally apply. Key differences include:

• CAFA requires only minimal geographic diversity, instead of complete diversity with no defendant resident in the state where suit was brought. Minimal diversity here means, essentially, that at least one plaintiff is a citizen of a state where no defendant resides. Because entities have dual citizenship, at minimum, this inquiry can be complex.

• CAFA doesn’t require all of the defendants to agree to remove the action. Any one defendant can do it on its own.

• The one-year outer limit for removing diversity cases provided in 28 U.S.C. § 1446(c)(1) does not apply to covered class actions removed under CAFA.

Mass actions can also be removed under CAFA, but specific separate rules apply. See 28 U.S.C. 1332(d)(11)(B)(i). See the statute for differences between mass actions and class actions, including limitations on transfer.

See Overview – Removing Under CAFA.

Other Removal Statutes

All are strictly construed against removal:

28 U.S.C. § 1369 – Under 28 U.S.C. § 1441(e), if the suit is about an accident in which at least 75 people died, removal is an option.

28 U.S.C. § 1442 – Under this statute a federal officer can remove an action if he/she acted under color of law.

28 U.S.C. § 1442(1)(a) – Under this statute a member of the armed forces can remove any case.

28 U.S.C. § 1443 – This is a “civil rights” removal. Under this statute a defendant can remove if he or she will be denied a federal civil right in state court.

28 U.S.C. § 1452 – This statute relates to bankruptcy removal. When a case filed in state court is related to a bankruptcy proceeding, it can be removed to federal court if that court has jurisdiction over the bankruptcy proceeding.

Unremovable Actions

Under 28 U.S.C. § 1445, some actions are not removable.

Some actions can’t be removed at all, such as:

-Actions against a railroad;

-Workers’ compensation proceedings;

-Actions for less than $10,000 against carriers for losses to specific shipments

Appealability

There is no appeal from an order of remand based on lack of subject matter jurisdiction or a timely raised procedural defect in the removal. 28 U.S.C. § 1447(d). Statutory exceptions apply for some defendants. (28 U.S.C. 1442, 28 U.S.C. 1443), but generally there is just one shot at removal. If the case is remanded, the defendant can’t seek reconsideration or appeal.

If the defendant removed under CAFA, appeal is allowed under 28 U.S.C. § 1453(c)(1), but very tight time limits apply. You must apply within 10 days of the order for remand. SeeSmart Code®.

source

Why Make a Federal Case Out of It?

Imagine this scenario: you live in and own a house in Florida, and it is badly damaged by a storm. You file an insurance claim with your insurance company, which is headquartered outside of Florida, and your insurance company denies your claim. You disagree with the insurance company’s assessment of the claim, and you hire a lawyer to represent you in a lawsuit against your insurer. Your lawyer starts a lawsuit against your insurance company in state court, in the county where your house is located. Everything appears to be going smoothly, and then suddenly your attorney informs you that your insurance company has removed your case from state court into a federal court. How did your state court case suddenly become a federal case? How can an insurance company remove your case to a completely different court—with completely different procedures—all by itself? This article examines these questions.

To understand how a case filed in state court can be removed to a federal court, you must first understand a little bit about how jurisdiction works. Simply put, “jurisdiction” describes a court’s legal authority to administer justice. In practical terms, “jurisdiction” describes a court’s ability to hear and resolve cases. A court must always have jurisdiction over a case in order to even begin the case. Without jurisdiction, a court has no authority over a case whatsoever. In the United States, jurisdiction is generally comprised of two components: (1) jurisdiction over the subject matter of a case (the law and the facts of the case), and (2) jurisdiction over the parties in the case (also known as “personal jurisdiction”). In order to have jurisdiction over a case, a court must have both personal jurisdiction and subject matter jurisdiction over the case.

Regarding personal jurisdiction, a court must have jurisdiction over the parties to a lawsuit. For example, a court in Florida would not have personal jurisdiction over individuals in Oregon for a dispute that only took place in Oregon. Personal jurisdiction can become far more complicated, especially when dealing with corporations (which are legal entities that can be all over the world), but the general idea is that the parties to a lawsuit must have some connection to the state in which the lawsuit is brought. An Ohio man suing another Ohio man for an event that occurred in Ohio cannot bring a suit in Florida to resolve the dispute; he would most likely have to bring it in Ohio. Likewise, in the opening scenario, a Florida state court would have personal jurisdiction over the case, because both you and your house are located in Florida, and your insurance company has transacted business in Florida by issuing you an insurance policy under the laws of the state of Florida.

Regarding subject matter jurisdiction, certain courts have only limited subject matter jurisdiction. That is to say that certain courts can only resolve disputes in very narrow areas of the law. For example, federal bankruptcy courts alone have the legal authority to hear and decide bankruptcy cases. No other court in the country has that power. By contrast, most state level trial courts are courts of “general jurisdiction”, meaning that their subject matter jurisdiction is not limited to certain types of disputes. They have the general power to resolve most disputes that arise within their geographical area of the state (such as a county), apart from certain pre-empted subject matters (such as bankruptcy). In the first example, you can properly bring your lawsuit against your insurance company in your local circuit court, because your dispute (most likely a breach of contract action) falls within the general jurisdiction of your state court. Most likely, your attorney would bring suit in the county where you and your house reside.

Now, how does a state court claim suddenly wind up in federal court? Federal courts in the U.S. are courts of limited jurisdiction. Federal courts only have the power to resolve disputes in a number of limited subject matters. Among these subject matters, are (1) disputes involving federal question(s) and (2) disputes involving “diversity of citizenship”. Federal question jurisdiction is exactly what it sounds like. In order for a federal court to have jurisdiction arising under federal question jurisdiction, the case must involve some kind of federal law (i.e. a “federal question”). Unsurprisingly federal courts have the power to interpret federal laws, and create federal case law. Interestingly, state courts also have the power to interpret federal laws, and they are not bound by federal courts’ decisions (apart from the U.S. Supreme Court).

Federal diversity jurisdiction arises when two conditions are met: (1) there must be complete diversity of citizenship between the parties and (2) the “amount in controversy” is greater than $75,000.00. Diversity of citizenship is also exactly what it sounds like. The parties must be citizens of different states. In the first example, diversity of citizenship exists in your case, because you reside in Florida, and your insurance company is headquartered outside of Florida. As to the second element, your claim against your insurance company must be greater than $75,000.00, in order to have diversity jurisdiction.

Once federal diversity jurisdiction exists, any claim—even if it is also proper in state court—may be brought in federal court. When you started your lawsuit, you could have brought your claim in either state court or federal court. Even though you brought your claim in state court, the other party has the right to remove your case to federal court within 30 days after receiving the lawsuit. This is according to federal law, which expressly grants “original jurisdiction” to the federal court in all diversity cases (28 U.S.C. § 1332). Procedurally, this is done by the party seeking to move the case to federal court by filing a “Notice of Removal” in the federal court. If your attorney believes that their removal to federal court is improper, then you can file a “Motion for Remand” within 30 days after the filing of the Notice of Removal. Once a case is removed to federal court (and not remanded back to state court), then the case will be decided by a federal judge. All of the procedural rules of the federal court will apply to your case, even though the federal judge will still apply state law.

Why do some insurers prefer to remove cases to federal court? There are potentially strategic reasons to do so. For instance, if an insurer sees that the case has been assigned to a judge in a state court that they think will rule unfavorably to them, they may want to remove the case to another judge, which can be easily done by removal to federal court. Likewise, many attorneys are not admitted to federal court, or they are not familiar with federal court procedures, so removal may be a way for the insurance company to catch your attorney off-guard. Also, federal courts tend to be generally uniform across the country, and abide by strict procedural guidelines. Some insurers may prefer the increased formality of the federal court system, which again can catch an unfamiliar attorney off-guard.

If you are concerned that your insurance claim could potentially end up in federal court, or if you have a question about your claim in general, please give us a call. Many of our attorneys have experience practicing in both state and federal courts, and we have attorneys who have experience dealing with federal removal issues. source

Selected Issues in Malicious Prosecution Cases

The Truth News — Thu, 22 Aug 2024 08:55:45 +0000

Selected Issues in Malicious Prosecution Cases

Although it is frequently stated that actions for malicious prosecution are not favored by the law, this should not be used to deny a legitimate cause of action. So it is stated that the courts “should not be led so astray by the notion of a ‘disfavored’ action as to defeat the established rights of the plaintiff.” (Jaffe v. Stone (1941) 18 Cal.2d 146, 159.)

In the words of the California Supreme Court: “The malicious commencement of a civil proceeding is actionable because it harms the individual against whom the claim is made, and also because it threatens the efficient administration of justice. The individual is harmed because he is compelled to defend against a fabricated claim which not only subjects him to a panoply of psychological pressures most civil defendants suffer, but also to the additional stress of attempting to resist a suit commenced out of spite or ill will, often magnified by slanderous allegations in the pleadings.” (Bertero v. National General Corp. (1974) 13 Cal. 3d 43, 50-51.) The judicial process is adversely affected by a malicious prosecution cause not only by the clogging of already crowded dockets but by the unscrupulous use of the courts by individuals as instruments within which to maliciously injure their fellow man. (Id. at 51.)

Each of the following elements must exist for the plaintiff to prevail on a claim for malicious prosecution:

1. The prior action was commenced by or at the direction of the defendant and was pursued to a legal termination in the plaintiff’s favor;

2. The defendant lacked objective probable cause to bring the original action;

3. The defendant must have initiated the original action with subjective malice;

4. The malicious prosecution action was a substantial factor in causing the plaintiff to suffer damages.

Final and Favorable Termination

There must be a final termination of the action before a malicious prosecution action can be brought. All time for appeals, motions for rehearing, new trial and the like must have run before an action for malicious prosecution may be filed. In addition to being a final termination of the underlying case, it must be favorable to the defendant in the underlying litigation. “Favorable termination” means more than showing simply that the malicious prosecution plaintiff prevailed in the underlying action. It is not necessary for the defendant in the prior case to be exonerated after a trial on the merits. But the termination must reflect favorably on the defendant’s innocence. If the termination does not relate to the merits of the termination, such as a dismissal on technical or procedural grounds, it is not favorable in the sense that it would support a subsequent action for malicious prosecution. (Maleti v. Wickers (2022) 82 Cal. App. 5th 181; Casa Herrera, Inc. v. Beydoun (2004) 32 Cal. App. 4th 336; Lackner v. LaCroix (1979) 25 Cal. 3d 247, 250.)

A voluntary dismissal of the prior action, even one without prejudice, will generally constitute a favorable termination which will support an action for malicious prosecution, unless it was the result of a settlement or compromise. In most cases, a unilateral dismissal is considered to be a termination in favor of the defendant in the underlying action. The dismissal may be viewed as an implicit concession that the dismissing party cannot maintain the action and may constitute a decision on the merits. But it is not enough merely to show that the proceeding was dismissed; the reason for the dismissal of the action must be examined to determine whether the termination is reflected on the merits. (Maleti v. Wickers (2022) 82 Cal. App. 5th 181.)

Some of the other terminations of an action that are deemed favorable to the defendant in the underlying action include:

By summary judgment that reflects on the merits of the claim.

A dismissal for failure to prosecute reflects on the merits of the action, a natural assumption being that one does not simply abandon a meritorious action once instituted.

A plaintiff’s decision not to amend a pleading to reallege one or more causes of action after a demurrer to those claims is sustained on substantive grounds with leave to amend may, upon a proper showing, constitute a favorable termination on the merits of the abandoned claim.

After a judgment of nonsuit because the plaintiff failed to designate an expert on causation.

Where the court dismissed the underlying action because the claims were barred by the litigation privilege.

A dismissal resulting from negotiation, settlement or agreement is generally not deemed a favorable termination of the proceedings because of its ambiguity. A termination based upon the action being barred by the statute of limitations is deemed technical or procedural as distinguished from a substantive termination.

Final and favorable termination of the action must be distinguished from the lack of probable cause element of the tort of malicious prosecution. Whether a prior action was terminated favorably tends to show the innocence of the defendant in the underlying action, an issue not affected by the objective tenability of the claim.

The plaintiff may pursue a claim for malicious prosecution where one theory in an underlying multi-claim action was pursued without probable cause and with malice, even though there was probable cause to pursue other theories. A defendant cannot escape liability for the malicious prosecution of an unjustified claim by joining it with a justified claim. (Citizens of Humanity, LLC v. Ramirez (2021) 63 Cal. App. 5th 117, 128; Albertson v. Raboff (1956) 46 Cal. 2d 375, 385; Mabie v. Hyatt (1998) 61 Cal. 4th 581, 592.)

Where a malicious claim is only one of multiple claims, the plaintiff need not show that all claims were resolved on the merits as long as at least one claim was terminated on the merits. But favorable termination requires favorable resolution of the underlying action in its entirety, not merely a single claim. If the plaintiff in the original action succeeds on any of his or her claims, the favorable termination element is not satisfied and the malicious prosecution action cannot be maintained. (Citizens of Humanity, LLC v. Ramirez (2021) 63 Cal. App. 5th 117, 128.) The fact that a malicious prosecution suit may be maintained where only one of several claims in the prior action lacked probable cause does not alter the rule that there first must be a favorable termination of the entire action. (Crowley v. Katleman (1994) 81 Cal. 4th 666, 686.)

Lack of Probable Cause

The element of probable cause calls on the trial court to make an objective determination whether, on the basis of the facts known to the defendant, the institution of the prior action was legally tenable. Whether one has probable cause to file an action is determined by that person’s knowledge at the time the original or an amended complaint is filed, not by knowledge that is acquired at a later time. As one court observed, “a litigant cannot be permitted to file a suit based merely on a wing and a prayer and then be retroactively justified by some serendipitous discovery.” (Williams v. Coombs (1986) 179 Cal. App. 3d 626, 632 fn. 4.)

The probable cause element of a malicious prosecution action requires an objective determination of the “reasonableness” of the defendant’s prior lawsuit, i.e., whether, on the basis of the facts known to the defendant and fully disclose to the attorney, any reasonable attorney would have objectively believed the institution of the prior action was legally tenable. If so, the prior action was objectively reasonable, and the malicious prosecution defendant is entitled to prevail regardless of what his subjective intent or belief in bringing the prior action may have been. (Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal. 3d 863, 875, 886; Mabie v. Hyatt (1998) 61 Cal. App. 4th 581, 594.)

The resolution of probable cause or lack thereof is a question of law that calls for the application of an objective standard to the facts on which the defendant acted. Because the tort of malicious prosecution is intended to protect an individual’s interest in freedom from unjustifiable and unwarranted litigation, if the trial court determines that the prior action was objectively reasonable, the plaintiff in the malicious prosecution action has failed to meet the threshold requirement of demonstrating an absence of probable cause and therefore defendant is entitled to prevail. Sheldon Appel Co. v. Albert & Oliker 47 Cal.3d 863, 878.

Probable cause to bring an action does not depend upon it being meritorious, as such, but it being arguably tenable, i.e., not so completely lacking in apparent merit that no reasonable attorney would have thought the claim tenable. A litigant will lack probable cause for his action either if he relies upon facts which he has no reasonable cause to believe to be true, or if he seeks recovery upon a legal theory which is untenable under the facts known to him.

Probable cause may be established by the defendant in a malicious prosecution proceeding when they prove that they have in good faith consulted a lawyer, have stated all the facts to the attorney, have been advised by the lawyer that they have a good cause of action, and have honestly relied and acted upon the opinion and advice of the lawyer. (Mabie v. Hyatt (1998) 61 Cal. 4th 581; Sosinsky v. Grant (1992) 6 Cal. App. 4th 1548, 1556.) It is irrelevant whether the lawyer’s analysis or advice is correct or not: “There can be no imputation to a client of his attorney’s misconceived legal analysis so as to void the client’s good faith reliance on his counsel’s advice.” (Brinkley v. Appleby (1969) 276 Cal. App. 2d 244, 247.)

Attorney’s Liability

As noted above, probable cause to bring the action is based on whether any reasonable attorney would have believed the institution of the prior action was legally tenable. In Tool Research & Engineering Corp. v. Henigson ((1975) 46 Cal. App. 3d 675, 682-83.), the court held that an attorney has probable cause to represent a client in litigation where, after a reasonable investigation and industrious search of legal authority, the attorney has an honest and good faith belief that the client’s claim is tenable in the forum in which it is to be tried. ((1975) 46 Cal. App. 3d 675, 682-83.) Courts held that under Tool Research & Engineering Corp. a malicious prosecution plaintiff could establish a lack of probable cause simply by showing that its former adversary’s attorney failed to perform reasonable legal research or factual investigation before filing a claim on his or her client’s belief. (See, e.g., Williams v. Coombs (1986) 179 Cal. App. 3d 626, 640-44; Weaver v. Superior Court (1979) 95 Cal. App. 3d 166, 188-90.)

This inquiry was ruled irrelevant to the attorney’s probable cause by the Supreme Court in Sheldon Appel Co. v. Albert & Oliker (supra, 47 Cal.3d 863). The high court therein stated that an attorney’s duty of care runs primarily to his or her own client rather than to the client’s adversary, and which, on the basis of important policy consideration, precludes the adversary from maintaining a negligent cause of action against its opponent’s attorney. In Sheldon Appel Co., the court reasoned that allowing inadequate research to serve as an independent basis for proving the absence of probable cause on the part of an attorney would tend to create a conflict of interest between the attorney and his or her client. A cautious attorney would be tempted to create a record of diligence by performing extensive legal research, not for the benefit of his or her client, but rather simply to protect himself or herself from the client’s adversary in the event the initial suit fails. (Id. at 883.) If the trial court determines that the prior action was not objectively tenable, the extent of a defendant’s attorney’s investigation and research may be relevant to the question of whether or not the attorney acted with malice.

The attorney’s subjective belief in the legal tenability of the prior action is not a necessary element of probable cause. However, if the trial court concludes that the prior action was not objectively tenable, evidence that the defendant’s attorney did not subjectively believe that the action was tenable would clearly be relevant to the question of malice. Inasmuch as an attorney who does not have a good faith belief in the tenability of an action will normally assume that a court will come to the same conclusion, the malicious prosecution tort will continue to deter attorneys from filing actions which they do not believe are legally tenable.

If the issue which the attorney is called upon to decide is fairly debatable, “then under his [or her] oath of office, he [or she] is not only authorized but obligated to present and urge his [or her] client’s claim upon the court. And if it subsequently is determined that the position honestly taken by the attorney was erroneous he [or she] shall be relieved from responsibility.” Brinkley v. Appleby (1969) 276 Cal. App. 2d 244, 247.

To establish malice for both liability and punitive damages, personal hostility or ill will need not be shown; the absence of an honest and sincere belief in the validity of the claim is sufficient. To establish malice for both liability and punitive damages, personal hostility or ill will need not be shown; the absence of an honest and sincere belief in the validity of the claim is sufficient. Bertero v. National General Corp. (1974) 13 Cal. 3d 43, 66.

If the trial court concludes that the prior action was not objectively tenable, evidence that the defendant attorney did not subjectively believe that the action was tenable would be clearly relevant to the question of malice. Inasmuch as an attorney will normally assume that a court is likely to come to the same conclusion, the malicious prosecution tort will continue to deter attorneys from filing actions which they do not believe are legally tenable. Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal. 3d 863, 881-82.

Expert legal testimony is not permitted on the issue of whether any reasonable attorney would conclude that the claim advanced in the prior action was tenable, it being thoroughly established that such matter is essentially within the province of the court to decide. If there is a factual dispute, then such factual dispute is up to the jury to resolve. But if there is no factual dispute, or the jury determines the facts, it is a question of law for the trial court to determine if there was probable cause as a matter of law.

Damages Recoverable

A successful plaintiff in a malicious prosecution case is entitled to recover:

The cost of defending the prior action, including reasonable attorney’s fees and court costs;

Compensation for injury to his or her reputation or impairment of social and business standing;

Mental or emotional distress; and

Punitive damages.

Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50-51.

Where the underlying case involved malicious actions with substantiated actions, the plaintiff does not have the burden of showing that his or her damages were specifically attributed to the malicious prosecution as opposed to the prosecution which was not malicious. (Albertson v. Raboff (1956) 46 Cal. 2d 375, 385; Singleton v. Perry ((1955) 45 Cal. 2d 389, 498; Mabie v. Hyatt (1998) 61 Cal. App. 4th 581, 592.) source

Damages

The easiest damages to determine are the out-of-pocket costs you incurred. These would include the cost of hiring a lawyer to defend yourself, court fees, and any lost wages due to missed time at work.

Other damages are more difficult to calculate. You may ask for compensation for emotional distress and other intangible damages caused by your ordeal. These can vary from case-to-case.

Punitive damages are also a possibility in a malicious prosecution case. These damages can also vary dramatically depending on all of your facts and circumstances.

Malicious Prosecution

Series 1500 – Malicious Prosecution

1500. Former Criminal Proceeding – Essential Factual Elements
1501. Wrongful Use of Civil Proceedings
1502. Wrongful Use of Administrative Proceedings
1503. Affirmative Defense – Proceeding Initiated by Public Employee Within Scope of Employment (Gov. Code, § 821.6)
1504. Former Criminal Proceeding – “Actively Involved” Explained
1505-1509. Reserved for Future Use
1510. Affirmative Defense – Reliance on Counsel
1511. Wrongful Use of Civil Proceedings – Affirmative Defense – Attorney’s Reliance on Information Provided by Client
1512-1519. Reserved for Future Use
1520. Abuse of Process – Essential Factual Elements
1521-1529. Reserved for Future Use
1530. Apportionment of Attorney Fees and Costs Between Proper and Improper Claims
1531-1599. Reserved for Future Use
VF-1500. Malicious Prosecution – Former Criminal Proceeding
VF-1501. Malicious Prosecution – Wrongful Use of Civil Proceedings
VF-1502. Malicious Prosecution – Wrongful Use of Civil Proceedings – Affirmative Defense – Reliance on Counsel
VF-1503. Malicious Prosecution – Wrongful Use of Administrative Proceedings
VF-1504. Abuse of Process
VF-1505-VF-1599. Reserved for Future Use

source

CACI No. VF-1500. Malicious Prosecution – Former Criminal Proceeding

Judicial Council of California Civil Jury Instructions (2024 edition)

CACI No. 1500. Former Criminal Proceeding – Essential Factual Elements

Judicial Council of California Civil Jury Instructions (2024 edition)

CACI No. VF-1504. Abuse of Process

Judicial Council of California Civil Jury Instructions (2024 edition)

CACI No. 1501. Wrongful Use of Civil Proceedings

Judicial Council of California Civil Jury Instructions (2024 edition)

Learn more about these sujects

Malicious Prosecution
Prosecutional Misconduct
Vindictive Prosecution
Retaliatory Prosecution
Abuse of Process

California Appellate Archives - Good Shepherd News - Fastest Growing Religious, Free Speech & Political Content

The call that changed it all

The call that changed it all

The call that changed it all: California Supreme Court expands standard for bystander claims of negligent emotional distress

more on Emotional Distress below

Anti-SLAPP and Free Speech in Defamation & Emotional Distress Cases

Anti-SLAPP and Free Speech in Defamation & Emotional Distress Cases

Anti-SLAPP statutes are laws intended to curb – and, often, penalize – the filing of Strategic Lawsuits Against Public Participation or a “SLAPP.” A SLAPP is a lawsuit that, on its face, attempts to impose liability on a defendant for harm arising from speech

Anti-SLAPP and Free Speech in Defamation & Emotional Distress Cases

California Supreme Court

California Courts of Appeal

SLAPP back: Suits Against Malicious Litigants or Lawyers: California law permits a prevailing SLAPP defendant to sue back for malicious prosecution (sometimes called a “SLAPPback”) if the original suit was baseless and filed with malice. Several cases demonstrate this accountability:

U.S. Supreme Court

Federal Courts in California (Ninth Circuit & District Courts)

Themes and Trends

California Supreme Court Cases

California Appellate Court Cases

Federal District Courts (California)

U.S. Supreme Court Cases

Key Themes

1. Truthful Negative Reviews & Anti-SLAPP Protections

Key Cases:

2. Use of Public Social Media Content

Key Cases:

3. Emotional Distress Claims & Truthful Speech

Key Cases:

4. Creative Use of Public Social Media Content

Key Cases:

Key Takeaways:

Anti Slapp Law Resources:

Attorney Liability for Meritless Litigation Leading to Harm

Attorney Liability for Meritless Litigation Leading to Harm

Attorneys can face liability for initiating or continuing meritless litigation that causes harm, potentially facing sanctions like fines, professional discipline, or being held liable for the opposing party’s costs and fees.

Sanctions and Liability for Frivolous Litigation:

– contrasted with California’s requirement of malice for such claims.

Anti Slapp Law Resources:

How Anti-SLAPP Laws Protect Your Right to Free Speech

How Anti-SLAPP Laws Protect Your Right to Free Speech

What are anti-SLAPP laws?

What are SLAPP lawsuits?

How do SLAPP lawsuits affect people’s free expression?

How do anti-SLAPP laws protect free expression?

What are some examples of SLAPP lawsuits?

What are some examples of anti-SLAPP laws that protected free speech?

Anti-SLAPP laws and the First Amendment

Anti Slapp Law Resources:

Court tosses disbarred lawyer’s suit over newspaper article

Court tosses disbarred lawyer’s suit over newspaper article on his ethics case with a ‘crime’ header

Anti Slapp Law Resources:

Code of Civil Procedure – Section 425.16 California’s Anti-SLAPP Law

Code of Civil Procedure – Section 425.16.

The Evidentiary Standard under the anti-SLAPP Statute (Code Civ. Proc. §425.16): Sweetwater Union High School Dist. v. Gilbane Building Co. (2019)

Anti Slapp Law Resources:

Free Speech, the First Amendment, and Social Media

Free Speech, the First Amendment, and Social Media

by John Bandler

The U.S. Constitution

The First Amendment

Three categories of speech

Senator Hawley’s book deal

Former president Trump’s social media accounts

Social media regulation?

Consumers and voters remain the key

Conclusion

Free Speech, the First Amendment, and Social Media

First Amendment things to know

by John Bandler

The U.S. Constitution

The First Amendment

Three categories of speech and government action

All speech can have a private consequence

Private book deals can be cancelled based on one’s speech

Social media accounts can be suspended or terminated based on one’s speech

Social media regulation?

Consumers and voters remain the key

Conclusion

Additional reading

First Amendment Q&A

The First Amendment

Interesting 1st Amendment facts and conclusions by John

NOW, AS OF APRIL 4, 2022 YOU HAVE A RIGHT UNDER FEDERAL LAW TO SUE FOR YOUR MALICIOUS CRIMINAL PROSECUTION.
FEDERAL MALICIOUS PROSECUTION LAW FROM 1994 TO 2017

California Supreme Court, 2004
32 Cal.4th 958, 12 Cal.Rptr.3d 54, 87 P.3d 802

Employer$ Beware: La $upreme Court Open$ Line for Direct Negligence Claim$ from Employee Action$

But the D.C. Circuit (1989) expressly held that the First Amendment prevented the statute from applying to “public or political discourse,”
such as condemnation of political officials (even left expressly for that official).

Private Corporate State / Municipality Policy Enforcement Officer
a.k.a Police Officer Duties and limitations of power