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.

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.”

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:

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.

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

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.”

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.

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.

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.

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.

• 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.”

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).

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://www.youtube.com/@DonutOperator

•  Police Discretion

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• DEPRIVATION OF RIGHTS UNDER COLOR OF LAW

• How to File a complaint of Police Misconduct?

• Suing for Misconduct – Know More of Your Rights

• New Supreme Court Ruling makes it easier to sue police

• Prosecutorial Misconduct, What is it?

• Frivolous, Meritless or Malicious Prosecution

• Malicious Prosecution / Prosecutorial Misconduct

• Prosecutorial Misconduct

•  Vindictive Prosecution – Georgetown University

•  VINDICTIVE AND SELECTIVE PROSECUTION

•  Misconduct by Judges & Prosecutor

• CALIFORNIA ATTORNEY MISCONDUCT LAW

• Equality Act 2010 – Discrimination and mental health

• Motion to reconsider – Cal. Code Civ. Proc. § 1008 Section 1008

• Fighting A Judgment Without Filing An Appeal Settlement Or Mediation – Options to Appealing

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

• 118.1 PC – Police Officers Filing False Reports

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

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

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)

 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

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

Here is the Public Records Service Act Portal for all of CALIFORNIA Click Here

Police BodyCam Footage Release

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

Download Here this Recommended Citation

]]> https://goodshepherdmedia.net/star-spangled-banner-history-explanation/ Mon, 05 Dec 2022 08:52:12 +0000 https://goodshepherdmedia.net/?p=3298 Courage is in all of US, Trust God, and follow his lead!

 

LET FREEDOM RING, AND ANY TYRANOUS GOVERNMENT BE STOPPED IN THEIR TRACKS
 LIBERTY AND JUSTICE FOR ALL WILL PREVAIL
IN THE GREAT UNITED STATES OF AMERICA

The Story Behind the Star Spangled Banner

How the flag that flew proudly over Fort McHenry!
, inspried an anthem and ……….
made its way to the Smithsonian !
Let Freedom Ring & Reign!

On a rainy September 13, 1814, British warships sent a downpour of shells and rockets onto Fort McHenry in Baltimore Harbor, relentlessly pounding the American fort for 25 hours. The bombardment, known as the Battle of Baltimore, came only weeks after the British had attacked Washington, D.C., burning the Capitol, the Treasury and the President’s house. It was another chapter in the ongoing War of 1812.

A week earlier, Francis Scott Key, a 35-year-old American lawyer, had boarded the flagship of the British fleet on the Chesapeake Bay in hopes of persuading the British to release a friend who had recently been arrested. Key’s tactics were successful, but because he and his companions had gained knowledge of the impending attack on Baltimore, the British did not let them go. They allowed the Americans to return to their own vessel but continued guarding them. Under their scrutiny, Key watched on September 13 as the barrage of Fort McHenry began eight miles away.

“It seemed as though mother earth had opened and was vomiting shot and shell in a sheet of fire and brimstone,” Key wrote later. But when darkness arrived, Key saw only red erupting in the night sky. Given the scale of the attack, he was certain the British would win. The hours passed slowly, but in the clearing smoke of “the dawn’s early light” on September 14, he saw the American flag—not the British Union Jack—flying over the fort, announcing an American victory.

Key put his thoughts on paper while still on board the ship, setting his words to the tune of a popular English song. His brother-in-law, commander of a militia at Fort McHenry, read Key’s work and had it distributed under the name “Defence of Fort M’Henry.” The Baltimore Patriot newspaper soon printed it, and within weeks, Key’s poem, now called “The Star-Spangled Banner,” appeared in print across the country, immortalizing his words—and forever naming the flag it celebrated.

Nearly two centuries later, the flag that inspired Key still survives, though fragile and worn by the years. To preserve this American icon, experts at the National Museum of American History recently completed an eight-year conservation treatment with funds from Polo Ralph Lauren, The Pew Charitable Trusts and the U.S. Congress. And when the museum reopens in summer 2008, the Star-Spangled Banner will be its centerpiece, displayed in its own state-of-the-art gallery.

“The Star-Spangled Banner is a symbol of American history that ranks with the Statue of Liberty and the Charters of Freedom,” says Brent D. Glass, the museum’s director. “The fact that it has been entrusted to the National Museum of American History is an honor.”

Started in 1996, the Star-Spangled Banner preservation project—which includes the flag’s conservation and the creation of its new display in the renovated museum—was planned with the help of historians, conservators, curators, engineers and organic scientists. With the construction of the conservation lab completed in 1999, conservators began their work. Over the next several years, they clipped 1.7 million stitches from the flag to remove a linen backing that had been added in 1914, lifted debris from the flag using dry cosmetic sponges and brushed it with an acetone-water mixture to remove soils embedded in fibers. Finally, they added a sheer polyester backing to help support the flag.

“Our goal was to extend [the flag’s] usable lifetime,” says Suzanne Thomassen-Krauss, the conservator for the project. The intent was never to make the flag look as it did when it first flew over Fort McHenry, she says. “We didn’t want to change any of the history written on the artifact by stains and soil. Those marks tell the flag’s story.”

While the conservators worked, the public looked on. Over the years, more than 12 million people peered into the museum’s glass conservation lab, watching the progress.

“The Star-Spangled Banner resonates with people in different ways, for different reasons,” says Kathleen Kendrick, curator for the Star-Spangled Banner preservation project. “It’s exciting to realize that you’re looking at the very same flag that Francis Scott Key saw on that September morning in 1814. But the Star-Spangled Banner is more than an artifact—it’s also a national symbol. It evokes powerful emotions and ideas about what it means to be an American.”

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), was a United States Supreme Court decision that determined that the U.S. Congress has the power to abrogate the Eleventh Amendment sovereign immunity of the states, if this is done pursuant to its Fourteenth Amendment power to enforce upon the states the guarantees of the Fourteenth Amendment.

Fitzpatrick v. Bitzer – 427 U.S. 445

RULE:

Congress has the power to authorize private suits against individual states under Section V of the 14th Amendment, which might be impermissible in other contexts.

FACTS:

Congress amended Title VII of the Civil Rights Act of 1964, and authorized private suits for monetary damages. When it did this, it cited its authority under Section V of the 14th Amendment to the Constitution. Plaintiffs sued, claiming that Congress did not have the ability to do this, because it would infringe on the sovereign immunity the individual states.

ISSUE:

Can Congress authorize suits against states, infringing on sovereign immunity?

ANSWER:

Yes.

CONCLUSION:

In allowing Congress to exercise this authority, the Court held that Section V of the 14th Amendment allows Congress to exercise authority that would otherwise infringe on areas under the responsibility of other entities, under the Constitution. However, because Section V has this grant of authority, the Supreme Court allowed Congress to abrogate sovereign immunity of the states as well. source

U.S. Supreme Court

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)

Fitzpatrick v. Bitzer

No. 75-251

Argued April 221, 1976

Decided June 28, 1976*

427 U.S. 445

Syllabus

Present and retired male employees of the State of Connecticut (petitioners in No. 75-251) brought this class action alleging, inter alia, that certain provisions of the State’s statutory retirement benefit plan discriminated against them because of their sex, in violation of Title VII of the Civil Rights Act of 1964, which, as amended, extends coverage to the States as employers. The District Court ruled in their favor and entered prospective injunctive relief against respondent state officials. But the court denied petitioners’ request for an award of retroactive retirement benefits as compensation for losses caused by the State’s discrimination, as well as “a reasonable attorney’s fee as part of the costs,” as provided in Title VII, holding that both would constitute recovery of money damages from the State’s treasury, and were thus precluded by the Eleventh Amendment and by this Court’s decision in Edelman v. Jordan, 415 U. S. 651, where the District Court’s award for welfare benefits wrongfully withheld was held to violate that Amendment, there being no authorization in the Social Security Act for a citizen to sue a State. The Court of Appeals reversed in the matter of attorneys’ fees, the award of which was deemed to have only an “ancillary effect” on the state treasury of the sort permitted by Edelman, but otherwise affirmed.

Held:

1. The Eleventh Amendment does not bar a backpay award to petitioners in No. 75-251, since that Amendment and the principle of state sovereignty that it embodies are limited by the enforcement provisions of § 5 of the Fourteenth Amendment, which grants Congress authority to enforce “by appropriate

Page 427 U. S. 446

legislation” the substantive provisions of the Fourteenth Amendment, which themselves embody significant limitations on state authority. Congress, in determining what legislation is appropriate for enforcing the Fourteenth Amendment, may, as it has done in Title VII, provide for suits against States that are constitutionally impermissible in other contexts. The “threshold fact of congressional authorization” for a citizen to sue his state employer, which was absent in Edelman, supra, is thus present here. Pp. 427 U. S. 451-456.

2. Congress’ exercise of power in allowing reasonable attorneys’ fees is similarly not barred by the Eleventh Amendment. Pp. 427 U. S. 456-457.

519 F.2d 559, affirmed in part, reversed in part.

REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C J., and STEWART, WHITE, MARSHALL, BLACKMUN, and POWELL, JJ., joined. BRENNAN, J., post, p. 427 U. S. 457, and STEVENS, J., post, p. 427 U. S. 458, filed opinions concurring in the judgment. source

Eleventh Amendment – XI Amendment

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Fitzpatrick v. Bitzer (1976)– The Supreme Court has the power to override a state’s sovereign immunity for the purpose of enforcing civil rights on the state.

Other Interesting Facts About the Eleventh Amendment

States may always “consent” to lawsuits that are barred by the Eleventh Amendment. If the state consents, any case may be heard.

Lawsuits can be brought in federal court against a state’s cities, counties, and municipalities, but usually not against the state itself.

When a state violates federal law, the state itself can’t be sued in federal court. However, a federal court can order state officials (by their own name) to follow the law.

Suits against states by other states or by the United States government to enforce federal laws are allowed. source

State Immunity under the 11th Amendment

Remember the Eleventh Amendment? You know, the constitutional amendment that prohibits the federal courts from hearing certain lawsuits against states? If you clear out the cobwebs that have formed since your 1L year, you’ll remember that the Eleventh Amendment ensures that states retain their sovereign status within the federal system. As a result, states are generally immune from suits brought by private parties and foreign governments in federal court. This immunity also extends to suits brought against a state official for violating a federal law—with some exceptions (see table below).

However, Eleventh Amendment immunity does not extend to any of the following:

• suits brought by the United States or another state
• suits asserted against a local government (e.g., city, county)
• suits initiated in bankruptcy court.

UWorld condensed the nuances of state immunity under the Eleventh Amendment into the following table:

Remember that Congress cannot override a state’s Eleventh Amendment immunity through its enumerated powers (e.g., power to regulate interstate commerce, power to protect copyrights and patents). However, it can abrogate or repeal a state’s immunity by clearly acting to enforce any of the Civil War Amendments, which are described in the following table:

source

What is the 11th Amendment?

The 11th Amendment of the Constitution reads as follows: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

This has two explicit meanings.

First, it means that the Supreme Court can’t hear cases against a state if it is sued by either a citizen who lives in another state or a non-citizen who lives in a foreign country.

Second, it means that because states don’t have “sovereign immunity,” states can sue other states, and the federal government can sue states.

But there are some exceptions.

What are some exceptions to the 11th Amendment?

History has some specific examples of exceptions to the 11th Amendment.

In the 1890 case of Hans vs. Louisiana, the Supreme Court ruled that citizens of states cannot sue their states for cases that the federal courts need to hear.

This case was controversial because it left open whether citizens could sue their state in state courts.

This case was ultimately resolved in 1999, in the case of Alden vs. Maine.

In the Alden case, it was ruled that “state’s sovereign immunity forecloses suits against a state government in state court.”

In this case, the Seminole Native American tribe sued the state of Florida for violating the good faith negotiations requirement of the Indian Gaming Regulatory Act.

But in this case, the courts ruled in a 5-4 decision that the state of Florida did have sovereign immunity from a lawsuit.

source

Amdt11.5.1 General Scope of State Sovereign Immunity

Eleventh Amendment:

Eleventh Amendment:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

In its 1890 decision, Hans v. Louisiana, the Supreme Court adopted Justice James Iredell’s position in Chisholm v. Georgia, that the states, as sovereigns, were immune from suit by their citizens under long-standing principles grounded in the common law.¹ In Hans v. Louisiana,² a resident of Louisiana brought a suit against that state in federal court under federal question jurisdiction, alleging a violation of the Contract Clause in the state’s repudiation of its obligation to pay interest on certain bonds. Admitting that the Amendment on its face prohibited only entertaining a suit against a state by citizens of another state, or citizens or subjects of a foreign state, the Court reasoned that the scope of the Eleventh Amendment was informed by the scope of Article III, Section 2, Clause 1, which provided federal courts jurisdiction over suits between a state and citizens of another state and foreign States, citizens or subjects. The court noted that the Eleventh Amendment was a result of the shock of surprise throughout the country at the Chisholm decision, which contravened long-established common law precedent that a sovereign cannot be sued absent its consent, and reflected the general consensus that the decision was wrong, and that federal jurisdiction did not extend to making defendants of unwilling states in lawsuits brought by individuals.³

In the Hans Court’s view, the Eleventh Amendment reversed an erroneous decision and restored the proper interpretation of the Constitution. Delivering the Court’s opinion, Justice Joseph Bradley stated: The truth is, that the cognizance of suits and actions unknown to the law, and forbidden by the law, was not contemplated by the Constitution when establishing the judicial power of the United States. The suability of a State without its consent was a thing unknown to the law.⁴ The Court reasoned that the Eleventh Amendment’s silence on whether a citizen of a state could sue that state should not be construed as permitting such suits. Instead the manner in which [Chisholm] was received by the country, the adoption of the Eleventh Amendment, the light of history and the reason of the thing,⁵ led the Court unanimously to hold that states could not be sued by their own citizens on grounds arising under the Constitution and laws of the United States.

In line with Hans, the Court held, in Ex parte New York (No. 1),⁶ that, absent its consent, a state was immune to suit in admiralty, the Eleventh Amendment’s reference to any suit in law or equity notwithstanding. Writing for the Court, Justice Mahlon Pitney stated: That a State may not be sued without its consent is a fundamental rule of jurisprudence . . . of which the Amendment is but an exemplification . . . . It is true the Amendment speaks only of suits in law or equity; but this is because the Amendment was the outcome of a purpose to set aside the effect of the decision of this court in Chisholm v. Georgia from which it naturally came to pass that the language of the Amendment was particularly phrased so as to reverse the construction adopted in that case.⁷ Just as Hans v. Louisiana had demonstrated the impropriety of construing the Amendment so as to permit federal question suits against a state, Justice Mahlon Pitney reasoned, it seems to us equally clear that it cannot with propriety be construed to leave open a suit against a State in the admiralty jurisdiction by individuals, whether its own citizens or not.⁸

The Court has continued to rely on Hans⁹ although support for it has not been universal.¹⁰ In 1996, the Court further solidified Hans in Seminole Tribe of Florida v. Florida,¹¹ holding that Congress lacks power under Article I to abrogate state immunity under the Eleventh Amendment. And, in 1999, the Court ruled in Alden v. Maine¹² that the broad principle of sovereign immunity reflected in the Eleventh Amendment bars suits against states in state courts as well as federal.

Having previously reserved the question of whether federal statutory rights could be enforced in state courts,¹³ the Court in Alden v. Maine¹⁴ held that states could also assert Eleventh Amendment sovereign immunity in their own courts. Recognizing that the application of the Eleventh Amendment, which limits only the federal courts, was a misnomer¹⁵ as applied to state courts, the Court nonetheless concluded that the principles of common law sovereign immunity applied absent compelling evidence that the states had surrendered such by ratifying the Constitution. Although this immunity is subject to the same limitations as apply in federal courts, the Court’s decision effectively limited applying significant portions of federal law to state governments.¹⁶ Both Seminole Tribe and Alden were 5-4 decisions with four dissenting Justices maintaining that Hans was wrongly decided.

This split continued with Federal Maritime Commission v. South Carolina State Ports Authority,¹⁷ which held that state sovereign immunity also applies to quasi-judicial proceedings in federal agencies. In this case, the operator of a cruise ship devoted to gambling had been denied entry to the Port of Charleston, and subsequently filed a complaint with the Federal Maritime Commission, alleging a violation of the Shipping Act of 1984.¹⁸ Justice Stephen Breyer, writing for the four dissenting Justices, emphasized the executive (as opposed to judicial) nature of such agency adjudications, noting that the ultimate enforcement of such proceedings in federal court was exercised by a federal agency (as is allowed under the doctrine of sovereign immunity). The majority, however, while admitting to a relatively barren historical record, presumed that when a proceeding was unheard of at the time of the founding of the Constitution, it could not subsequently be applied in derogation of a State’s dignity within our system of federalism.¹⁹

Footnotes

1. Footnotes

   1.  Jump to essay-1134 U.S. 1 (1890).
   2.  Jump to essay-2Id. at 11.
   3.  Jump to essay-3Id. at 13–14.
   4.  Jump to essay-4Id. at 15, 16.
   5.  Jump to essay-5134 U.S. at 18. The Court acknowledged that Chief Justice John Marshall’s opinion in Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 382–83, 406–07, 410–12 (1821), was to the contrary, but observed that the language was unnecessary to the decision and thus dictum, and though made by one who seldom used words without due reflection, ought not to outweigh the important considerations referred to which lead to a different conclusion. 134 U.S. at 20.
   6.  Jump to essay-6256 U.S. 490 (1921).
   7.  Jump to essay-7Id. at 497–98.
   8.  Jump to essay-8Id. at 498. See also Florida Dep’t of State v. Treasure Salvors, 458 U.S. 670 (1982); Welch v. Texas Dep’t of Highways and Transp., 483 U.S. 468 (1987).
   9.  Jump to essay-9E.g., Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 97–103 (1984) (opinion of the Court by Justice Lewis Powell); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 237–40, 243–44 n.3 (1985) (opinion of the Court by Justice Lewis Powell); Welch v. Texas Dep’t of Highways & Pub. Transp., 483 U.S. 468, 472–74, 478–95 (1987) (plurality opinion of Justice Lewis Powell); Pennsylvania v. Union Gas Co., 491 U.S. 1, 29 (1989) (Justice Antonin Scalia concurring in part and dissenting in part); Dellmuth v. Muth, 491 U.S. 223, 227–32 (1989) (opinion of the Court by Justice Anthony Kennedy); Hoffman v. Connecticut Dep’t of Income Maintenance, 492 U.S. 96, 101 (1989) (plurality opinion of Justice Byron White); id. at 105 (concurring opinions of Justices Sandra Day O’Connor and Antonin Scalia); Port Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 305 (1990) (opinion of the Court by Justice Sandra Day O’Connor).
   10.  Jump to essay-10E.g., Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 246 (1985) (dissenting); Welch v. Texas Dep’t of Highways & Pub. Transp., 483 U.S. 468, 496 (1987) (dissenting); Dellmuth v. Muth, 491 U.S. 223, 233 (1989) (dissenting); Port Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 309 (1990) (concurring). Joining Justice William Brennan were Justices Thurgood Marshall, Harry Blackmun, and John Stevens. See also Pennsylvania v. Union Gas Co., 491 U.S. 1, 23 (1989) (Justice Stevens concurring).
   11.  Jump to essay-11517 U.S. 44 (1996).
   12.  Jump to essay-12527 U.S. 706 (1999).
   13.  Jump to essay-13Employees of the Dep’t of Public Health and Welfare v. Department of Public Health and Welfare, 411 U.S. 279, 287 (1973). 16. 527 U.S. 706 (1999).
   14.  Jump to essay-14527 U.S. 706 (1999).
   15.  Jump to essay-15527 U.S. at 713.
   16.  Jump to essay-16Note, however, that at least one subsequent decision has seemingly enhanced the applicability of federal law to the states themselves. In PennEast Pipeline Co. v New Jersey (595 U.S. —), the Court held that a private company that was granted authority to exercise eminent domain by the federal government could exercise that authority to take possession of property interests owned by a state.
   17.  Jump to essay-17535 U.S. 743 (2002). Justice Breyer’s dissenting opinion describes a need for continued dissent from the majority’s sovereign immunity holdings. 535 U.S. at 788.
   18.  Jump to essay-1846 U.S.C. §§ 40101 et seq.
   19.  Jump to essay-19535 U.S. at 755, 760.

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Amdt11.5.2 Nature of States’ Immunity

Eleventh Amendment:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Hans v. Louisiana and Ex parte New York note that Chisholm was erroneously decided and that the Amendment’s intent was to restore the original understanding that a state could not be sued without its consent, and that nothing in the Constitution, including Article III’s grants of federal court jurisdiction, was intended to provide otherwise. In Edelman v. Jordan,¹ the Court held that a state could properly raise its Eleventh Amendment defense on appeal after having defended and lost on the merits in the trial court. The Court stated: [I]t has been well settled . . . that the Eleventh Amendment defense sufficiently partakes of the nature of a jurisdictional bar so that it need not be raised in the trial court.² But that the bar is not wholly jurisdictional seems established as well.³

Moreover, if under Article III there is no jurisdiction of suits against states, the settled principle that states may consent to suit⁴ becomes conceptually difficult, as jurisdiction may not be conferred if the state refuses its consent.⁵ And Article III jurisdiction exists for some suits against states, such as those brought by the United States or by other states.⁶ Furthermore, Congress is able, in some instances, to legislate away state immunity,⁷ although it may not enlarge Article III jurisdiction.⁸ The Court has declared that the principle of sovereign immunity [reflected in the Eleventh Amendment] is a constitutional limitation on the federal judicial power established in Art. III, while acknowledging that [a] sovereign’s immunity may be waived.⁹

Another explanation of the Eleventh Amendment is that it merely recognized the continued vitality of the doctrine of sovereign immunity as established prior to the Constitution: a state was not subject to suit without its consent.¹⁰ Modern case law supports this view. In the 1999 Alden v. Maine decision, the Court stated: the States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today¹¹ The Court, in dealing with questions of governmental immunity from suit, has traditionally treated precedents dealing with state immunity and those dealing with Federal Governmental immunity interchangeably.¹² Viewing the Amendment and Article III this way explains consent to suit as a waiver.¹³ The limited effect of the doctrine in federal courts arises from the fact that traditional sovereign immunity arose in a unitary state, barring unconsented suit against a sovereign in its own courts or the courts of another sovereign. But upon entering the Union the states surrendered their sovereignty to some undetermined and changing degree to the national government, a sovereign that does not have plenary power over them but that is more than their coequal.¹⁴

Within the area of federal court jurisdiction, the issue becomes the extent to which the states, upon entering the Union, ceded their immunity to suit in federal court. Chisholm held—and the Eleventh Amendment reversed —that the states had given up their immunity to suit in diversity cases based on common law or state law causes of action; Hans v. Louisiana and subsequent cases held that the Amendment, in effect, recognized state immunity to suits based on federal causes of action.¹⁵ Other cases have held that states ceded their immunity to suits by the United States or by other states.¹⁶

Still another view of the Eleventh Amendment is that it embodies a state sovereignty principle limiting the Federal Government’s power.¹⁷ In this respect, the federal courts may not act without congressional guidance in subjecting states to suit, and Congress, which can act to the extent of its granted powers, is constrained by judicially created doctrines requiring it to be explicit when it legislates against state immunity.¹⁸

Questions regarding the constitutional dimensions of sovereign immunity have arisen in the context of interstate sovereign immunity when a private party institutes an action against a state in another state’s court. In the now-overturned 1979 decision of Nevada v. Hall, the Court held that while states are free as a matter of comity to accord each other immunity or to respect any established limits on liability, the Constitution does not compel a state to grant another state immunity in its courts.¹⁹ In Hall, California residents who were severely injured in a car crash with a Nevada state university employee on official business sued the university and the State of Nevada in California court.²⁰ After considering the scope of sovereign immunity as it existed prior to and in the early days of independence, the doctrine’s effect on the framing of the Constitution, and specific aspects of the Constitution that qualify the sovereignty of the several States, such as the Full Faith and Credit Clause,²¹ the Court concluded that [n]othing in the Federal Constitution authorizes or obligates this Court to frustrate California’s policy of full compensation in its courts for injuries on its highways resulting from the negligence of state or non-state actors out of enforced respect for the sovereignty of Nevada.²²

Forty years later, the Court overruled Hall in Franchise Tax Board of California v. Hyatt (Franchise Tax Board III), holding that States retain their sovereign immunity from private suits brought in the courts of other States.²³ Franchise Tax Board III involved a tort action by a private party against a California state agency in Nevada’s courts.²⁴ The sole question before the Court was whether to overrule Nevada v. Hall, a question over which the Court divided in 2016.²⁵ As the majority in Franchise Tax Board III read the historical record, although interstate sovereign immunity may have existed as a voluntary practice of comity at the time of the Founding, the Constitution fundamentally adjust[ed] the States’ relationship with each other and curtail[ed] their ability, as sovereigns, to decline to recognize each other’s immunity.²⁶ The Court reiterated the view embraced in several of its decisions since Hall that in proposing the Eleventh Amendment in response to Chisholm v. Georgia, Congress acted not to change but to restore the original constitutional design.²⁷ Accordingly, the Court explained, the sovereign immunity of the States . . . neither derives from, nor is limited by, the terms of the Eleventh Amendment.²⁸ Moreover, the Court reasoned, [n]umerous provisions in the Constitution support the view that interstate sovereign immunity is embe[dded] . . . within the constitutional design.²⁹ Among other provisions, the Court cited Article I insofar as it divests the States of the traditional diplomatic and military tools that foreign sovereigns possess and Article IV’s Full Faith and Credit Clause, which requires that state-court judgments be accorded full effect in other States and preclude[s] States from ‘adopt[ing] any policy of hostility to the public Acts’ of other States.³⁰ Accordingly, because sovereign immunity was inherent in the constitutional design, the Court concluded that the State of California could not be sued in Nevada absent the former state’s consent.³¹

Footnotes

1.  Jump to essay-1415 U.S. 651 (1974).
2.  Jump to essay-2415 U.S. at 678. The Court relied on Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459 (1945), where the issue was whether state officials who had voluntarily appeared in federal court had authority under state law to waive the state’s immunity. Edelman has been followed in Sosna v. Iowa, 419 U.S. 393, 396 n.2 (1975); Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 278 (1977), with respect to the Court’s responsibility to raise the Eleventh Amendment jurisdictional issue on its own motion.
3.  Jump to essay-3See Patsy v. Florida Board of Regents, 457 U.S. 496, 515–16 n.19 (1982), in which the Court bypassed the Eleventh Amendment issue, which had been brought to its attention, because of the interest of the parties in having the question resolved on the merits. See id. at 520 (Justice Lewis Powell dissenting).
4.  Jump to essay-4Clark v. Barnard, 108 U.S. 436 (1883).
5.  Jump to essay-5E.g., People’s Band v. Calhoun, 102 U.S. 256, 260–61 (1880). See Justice Lewis Powell’s explanation in Patsy v. Florida Board of Regents, 457 U.S. 496, 528 n.13 (1982) (dissenting) (no jurisdiction under Article III of suits against unconsenting states).
6.  Jump to essay-6See, e.g., the Court’s express rejection of the Eleventh Amendment defense in these cases. United States v. Texas, 143 U.S. 621 (1892); South Dakota v. North Carolina, 192 U.S. 286 (1904).
7.  Jump to essay-7E.g., Fitzpatrick v. Bitzer, 427 U.S. 445 (1976); Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989).
8.  Jump to essay-8The principal citation is Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803).
9.  Jump to essay-9Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 98, 99 (1984).
10.  Jump to essay-10As Justice Oliver Holmes explained, the doctrine is based on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends. Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907). Of course, when a state is sued in federal court pursuant to federal law, the Federal Government, not the defendant state, is the authority that makes the law creating the right of action. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 154 (1996) (Souter, J., dissenting). For the history and jurisprudence, see Lewis J. Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 Harv. L. Rev. 1 (1963).
11.  Jump to essay-11Alden v. Maine, 527 U.S. 706, 713 (1999).
12.  Jump to essay-12See, e.g., United States v. Lee, 106 U.S. 196, 210–14 (1882); Belknap v. Schild, 161 U.S. 10, 18 (1896); Hopkins v. Clemson Agricultural College, 221 U.S. 636, 642–43, 645 (1911).
13.  Jump to essay-13A sovereign may consent to suit. E.g., United States v. Sherwood, 312 U.S. 584, 586 (1941); United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 514 (1940).
14.  Jump to essay-14See Fletcher, supra.
15.  Jump to essay-15For a while only Justice William Brennan advocated this view, Parden v. Terminal Ry., 377 U.S. 184 (1964); Emps. of the Dep’t of Pub. Health and Welfare v. Dep’t of Pub. Health and Welfare, 411 U.S. 279, 298 (1973) (dissenting), but in time he was joined by three others. See, e.g., Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 247 (1985) (Justice William Brennan, joined by Justices Thurgood Marshall, Harry Blackmun, and John Stevens, dissenting).
16.  Jump to essay-16E.g., United States v. Texas, 143 U.S. 621 (1892); South Dakota v. North Carolina, 192 U.S. 286 (1904). See Kansas v. Colorado, 533 U.S. 1 (2001) (state may seek damages from another state, including damages to its citizens, provided it shows that the state has an independent interest in the proceeding).
17.  Jump to essay-17E.g., Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976); Quern v. Jordan, 440 U.S. 332, 337 (1979).
18.  Jump to essay-18See Hutto v. Finney, 437 U.S. 678 (1978), in which the various opinions differ among themselves as to the degree of explicitness required. See also Quern v. Jordan, 440 U.S. 332, 343–45 (1979). As noted in the previous section, later cases stiffened the rule of construction. The parallelism of congressional power to regulate and to legislate away immunity is not exact. Thus, in Employees of the Dep’t of Pub. Health and Welfare v. Department of Pub. Health and Welfare, 411 U.S. 279 (1973), the Court strictly construed congressional provision of suits as not reaching states, while in Maryland v. Wirtz, 392 U.S. 183 (1968), it had sustained the constitutionality of the substantive law.
19.  Jump to essay-19440 U.S. 410, 426 (1979), overruled by Franchise Tax Bd. v. Hyatt, 139 S. Ct. 1485, 1492 (2019) [hereinafter Franchise Tax Bd. III.] 40. Id. at 411–12.
20.  Jump to essay-20Id. at 411–12.
21.  Jump to essay-21Id. at 414–18.
22.  Jump to essay-22Id. at 426. In the Court’s view, for a federal court to infer from the structure of our Constitution and nothing else, that California is not free in this case to enforce its policy of full compensation, that holding would constitute the real intrusion on the sovereignty of the States—and the power of the people—in our Union. Id. at 426–27.
23.  Jump to essay-23Franchise Tax Bd. III, 139 S. Ct. 1485, 1492 (2019).
24.  Jump to essay-24Id. at 1490–91.
25.  Jump to essay-25Id. at 1491; see also Franchise Tax Bd. of Cal. v. Hyatt, 136 S. Ct. 1277, 1279 (2016) (The Court is equally divided on this question, and we consequently affirm the Nevada courts’ exercise of jurisdiction over California.); Franchise Tax Bd. III, 139 S. Ct. at 1490–91 (explaining that the two prior Franchise Tax Board decisions centered on interpretations of the Full Faith and Credit Clause of Article IV of the Constitution).
26.  Jump to essay-26Franchise Tax Bd. III, 139 S. Ct. at 1493, 1497.
27.  Jump to essay-27Id. at 1496 (quoting Alden v. Maine, 527 U.S. 706, 722 (1999)).
28.  Jump to essay-28Id. (quoting Alden, 527 U.S. at 713). 49. Id. at 1497.
29.  Jump to essay-29Id. at 1497.
30.  Jump to essay-30Id. (citation omitted).
31.  Jump to essay-31Id. at 1499. The Court reasoned that stare decisis did not compel it to follow Hall even though some plaintiffs, such as Hyatt relied on that decision in litigation against states. Id. at1499. In the Court’s view, Hall failed to account for the historical understanding of state sovereign immunity and stood as an outlier in [the Court’s] sovereign immunity jurisprudence. Id.

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Amdt11.5.3 Suits Against States

Eleventh Amendment:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Despite the apparent limitations of the Eleventh Amendment, individuals may, under certain circumstances, bring constitutional and statutory cases against states. In some of these cases, the state’s sovereign immunity has either been waived by the state (either explicitly or implicitly as a product of their consent to the plan of the Constitutional Convention) or abrogated by Congress. In other cases, the Eleventh Amendment does not apply because the procedural posture is such that the Court does not view them as being against a state. As discussed below, this latter doctrine is most often seen in suits to enjoin state officials. However, it has also been invoked in bankruptcy and admiralty cases, where the res, or property in dispute, is in fact the legal target of a dispute.¹

The application of this last exception to the bankruptcy area has become less relevant, because even when a bankruptcy case is not focused on a particular res, the Court has held that a state’s sovereign immunity is not infringed by being subject to an order of a bankruptcy court. In Central Virginia Community College v. Katz, the Court noted that [t]he history of the Bankruptcy Clause, the reasons it was inserted in the Constitution, and the legislation both proposed and enacted under its auspices immediately following ratification of the Constitution demonstrate that it was intended not just as a grant of legislative authority to Congress, but also to authorize limited subordination of state sovereign immunity in the bankruptcy arena.² Thus, where a federal law authorized a bankruptcy trustee to recover preferential transfers made to state educational institutions,³ the court held that the state’s sovereign immunity was not infringed despite the fact that the issue was ancillary to a bankruptcy court’s in rem jurisdiction.⁴

Because Eleventh Amendment sovereign immunity inheres in states and not their subdivision or establishments, a state agency that wishes to claim state sovereign immunity must establish that it is acting as an arm of the state. In Lake County Estates v. Tahoe Regional Planning Agency, the Court stated: [A]gencies exercising state power have been permitted to invoke the [Eleventh] Amendment in order to protect the state treasury from liability that would have had essentially the same practical consequences as a judgment against the State itself.⁵ In evaluating such a claim, courts will examine state law to determine the nature of the entity and whether to treat it as an arm of the state.⁶ The Supreme Court has consistently refused to extend Eleventh Amendment sovereign immunity to counties, cities, or towns,⁷ even though such political subdivisions exercise a slice of state power.⁸ Even when such entities enjoy immunity from suit under state law, they do not have Eleventh Amendment immunity in federal court and states may not confer it.⁹ Similarly, entities created pursuant to interstate compacts (and subject to congressional approval) are not immune from suit, absent a showing that the entity was structured so as to take advantage of the state’s constitutional protections.¹⁰

Footnotes

1.  Jump to essay-1See Tennessee Student Assistance Corp. v. Hood, 541 U.S. 440, 446–48 (2004) (exercise of bankruptcy court’s in rem jurisdiction over a debtor’s estate to discharge a debt owed to a state does not infringe the state’s sovereignty); California v. Deep Sea Research, Inc., 523 U.S. 491, 507–08 (1998) (despite state claims over shipwrecked vessel, the Eleventh Amendment does not bar federal court in rem admiralty jurisdiction where the res is not in the possession of the sovereign).
2.  Jump to essay-2Central Virginia Community College v. Katz, 546 U.S. 356, 362–63 (2006). The Court has cautioned, however, that Katz’s analysis is limited to the context of the Bankruptcy Clause. Specifically, the Court has described the Clause as sui generis or unique among Article I’s grants of authority, and, unlike other such grants, the Bankruptcy Clause itself abrogated state sovereign immunity in bankruptcy proceedings. See Allen v. Cooper, 140 S.Ct. 994, 1002–03 (2020) (observing that Katz points to a good-for-one-clause-only holding and does not cast further doubt on Seminole Tribe’s general rule that Article I cannot justify haling a State into federal court).
3.  Jump to essay-3A preferential transfer was defined as the transfer of a property interest from an insolvent debtor to a creditor, which occurred on or within ninety days before the filing of a bankruptcy petition, and which exceeds what the creditor would have been entitled to receive under such bankruptcy filing. 11 U.S.C. § 547(b). 55. 546 U.S. at 373.
4.  Jump to essay-4546 U.S. at 373.
5.  Jump to essay-5Lake County Estates v. Tahoe Regional Planning Agency, 440 U.S. 391, 400–01 (1979), citing Edelman v. Jordan, 415 U.S. 651 (1974), and Ford Motor Co. v. Department of Treasury, 323 U.S. 459 (1945). The fact that a state agency can be indemnified for the costs of litigation does not divest the agency of its Eleventh Amendment immunity. Regents of the University of California v. Doe, 519 U.S. 425 (1997).
6.  Jump to essay-6See, e.g., Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977) (local school district not an arm of the state based on (1) its designation in state law as a political subdivision, (2) the degree of supervision by the state board of education, (3) the level of funding received from the state, and (4) the districts’ empowerment to generate their own revenue through the issuance of bonds or levying taxes.
7.  Jump to essay-7Northern Insurance Company of New York v. Chatham County, 547 U.S. 189, 193 (2006) (counties have neither Eleventh Amendment immunity nor residual common law immunity). See Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274 (1977); Moor v. County of Alameda, 411 U.S. 693 (1973); Workman v. City of New York, 179 U.S. 552 (1900); Lincoln County v. Luning, 133 U.S. 529 (1890). In contrast to their treatment under the Eleventh Amendment, the Court has found that state immunity from federal regulation under the Tenth Amendment extends to political subdivisions as well. See Printz v. United States, 521 U.S. 898 (1997).
8.  Jump to essay-8Lake County Estates v. Tahoe Regional Planning Agency, 440 U.S. 391, 400–01 (1979) (quoting earlier cases).
9.  Jump to essay-9Chicot County v. Sherwood, 148 U.S. 529 (1893).
10.  Jump to essay-10Lake County Estates v. Tahoe Regional Planning Agency, 440 U.S. 391 (1979); Petty v. Tennessee-Missouri Bridge Comm’n, 359 U.S. 275 (1959)

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Amdt11.6.1 Waiver of State Sovereign Immunity

Eleventh Amendment:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

The immunity of a state from suit is a privilege which it may waive at its pleasure. Historically, the conclusion that a state has consented or waived its immunity has not been lightly inferred; the Court strictly construes statutes alleged to consent to suit. Thus, a state may waive its immunity in its own courts without consenting to suit in federal court,¹ and a general authorization to sue and be sued is ordinarily insufficient to constitute consent.² A statutory waiver of state Eleventh Amendment immunity is effective only where stated in the most express language or by such overwhelming implication from the text as [will] leave no room for any other reasonable construction.³

Thus, in Port Authority Trans-Hudson Corp. v. Feeney,⁴ an expansive consent to suits, actions, or proceedings of any form or nature at law, in equity or otherwise was deemed too ambiguous and general to waive immunity in federal court, because it might be interpreted to reflect only a state’s consent to suit in its own courts. But, when combined with language specifying that consent was conditioned on venue being laid within a county or judicial district, established by one of said States or by the United States, and situated wholly or partially within the Port of New York District, waiver was effective.⁵

There are, however, a few cases in which the Court has found a waiver by implication. For example, in Parden v. Terminal Railway,⁶ the Court ruled that employees of a state-owned railroad could sue the state for damages under the Federal Employers’ Liability Act (FELA). One of the two primary grounds for finding lack of immunity was that by taking control of a railroad which was subject to the FELA, enacted some twenty years previously, the state had effectively accepted the imposition of the Act and consented to suit.⁷ Distinguishing Parden as involving a proprietary activity,⁸ the Court later refused to find any implied consent to suit by states participating in federal spending programs; participation was insufficient, and only when waiver has been stated by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction, will it be found.⁹ Further, even if a state becomes amenable to suit under a statutory condition on accepting federal funds, remedies, especially monetary damages, may be limited, absent express language to the contrary.¹⁰

Another form of waiver by implication is the waiver by consent to the plan of the Constitutional Convention; that is, that states waived sovereign immunity to litigation on certain matters when they ratified the Constitution. A recent decision seems to have expanded the scope of these sort of implicit waivers. In PennEast Pipeline Co. v. New Jersey,¹¹ the Court heard an appeal related to an interstate pipeline approved by the federal government. Under the Natural Gas Act (NGA), parties who receive certificates to construct and operate interstate natural gas pipelines are authorized to exercise eminent domain in order to obtain the necessary rights-of-way to construct and operate the pipeline along the approved route.¹² In this instance, the approved route included lands owned by the State of New Jersey. The certificate holders brought an action in federal district court seeking to condemn those state-owned parcels, and the state responded by asserting its sovereign immunity under the eleventh Amendment. The lower courts sided with the state, rejecting the argument that the federal government had delegated its authority to sue states in the NGA and the certificate proceeding, but the Supreme Court disagreed. Writing for the 5-4 majority, Chief Justice John Roberts noted that [t]he ‘plan of the Convention’ includes certain waivers of sovereign immunity to which all States implicitly consented at the founding.¹³ The Court concluded that it would be untenable to find that this waiver did not extend to private parties authorized by the federal government to exercise eminent domain authority.¹⁴ In addition, because the waiver of sovereign immunity was based on the states’ implicit consent via the plan of the Convention rather than abrogation or explicit waiver, there was no need to find that the NGA clearly authorized such suits.¹⁵ The Court’s decision in PennEast is one of the only Supreme Court decisions relying on the plan of convention as a basis for consent or waiver, so its impact outside of federal legislation delegating eminent domain power remains to be seen.

A state may also waive its immunity by initiating or participating in litigation. In Clark v. Barnard,¹⁶ the state had filed a claim for disputed money deposited in a federal court, and the Court held that the state could not thereafter complain when the court awarded the money to another claimant. However, the Court is loath to find a waiver simply because an official or an attorney representing the state decided to litigate the merits of a suit, so that a state may at any point in litigation raise a claim of immunity based on whether that official has the authority under state law to make a valid waiver.¹⁷ However, this argument is only available when the state is brought into federal court involuntarily. If a state voluntarily agrees to removal of a state action to federal court, the Court has held it may not then invoke a defense of sovereign immunity and thereby gain an unfair tactical advantage.¹⁸

Footnotes

1.  Jump to essay-1Smith v. Reeves, 178 U.S. 436 (1900); Murray v. Wilson Distilling Co., 213 U.S. 151, 172 (1909); Graves v. Texas Co., 298 U.S. 393, 403–04 (1936); Great Northern Life Ins. Co. v. Read, 322 U.S. 47 (1944).
2.  Jump to essay-2Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 54 (1944); Ford Motor Co. v. Department of Treasury, 323 U.S. 459 (1945); Kennecott Copper Corp. v. State Tax Comm’n, 327 U.S. 573 (1946); Petty v. Tennessee-Missouri Bridge Comm’n, 359 U.S. 275 (1959); Florida Dep’t of Health v. Florida Nursing Home Ass’n, 450 U.S. 147 (1981). Compare Patsy v. Florida Bd. of Regents, 457 U.S. 496, 519 n.* (1982) (Justice White concurring), with id. at 522 and n.5 (Justice Lewis Powell dissenting).
3.  Jump to essay-3Port Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 305–06 (1990) (internal citations omitted; emphasis in original). 5. 495 U.S. 299 (1990).
4.  Jump to essay-4495 U.S. 299 (1990).
5.  Jump to essay-5495 U.S. at 306–07. But see Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985).
6.  Jump to essay-6377 U.S. 184 (1964). The alternative but interwoven ground had to do with Congress’s power to withdraw immunity. See also Petty v. Tennessee- Missouri Bridge Comm’n, 359 U.S. 275 (1959).
7.  Jump to essay-7The implied waiver issue aside, Parden subsequently was overruled, a plurality of the Court emphasizing that Congress had failed to abrogate state immunity unmistakably. Welch v. Texas Dep’t of Highways and Pub. Transp., 483 U.S. 468 (1987). Justice Lewis Powell’s plurality opinion was joined by Chief Justice William Rehnquist and by Justices Byron White and Sandra Day O’Connor. Justice Antonin Scalia, concurring, thought Parden should be overruled because it must be assumed that Congress enacted the FELA and other statutes with the understanding that Hans v. Louisiana shielded states from immunity. Id. at 495.
8.  Jump to essay-8Edelman v. Jordan, 415 U.S. 651, 671–72 (1974). For the same distinction in the Tenth Amendment context, see National League of Cities v. Usery, 426 U.S. 833, 854 n.18 (1976).
9.  Jump to essay-9Edelman v. Jordan, 415 U.S. 651 (1974) (quoting id. at 673, Murray v. Wilson Distilling Co., 213 U.S. 151, 171 (1909)); Florida Dep’t of Health v. Florida Nursing Home Ass’n, 450 U.S. 147 (1981). Of the four Edelman dissenters, Justices Thurgood Marshall and Harry Blackmun found waiver through knowing participation, 415 U.S. at 688. In Florida Dep’t, Justice John Stevens noted he would have agreed with them had he been on the Court at the time but that he would now adhere to Edelman. Id. at 151.
10.  Jump to essay-10Sossamon v. Texas, 131 S. Ct. 1651 (2011).
11.  Jump to essay-11No. 19-1039 (U.S. June 29, 2021).
12.  Jump to essay-1215 U.S.C. § 717f(h).
13.  Jump to essay-13Alden, 527 U.S. at 755–56.
14.  Jump to essay-14Id.
15.  Jump to essay-15Id.
16.  Jump to essay-16108 U.S. 436 (1883).
17.  Jump to essay-17Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 466–467 (1945); Edelman v. Jordan, 415 U.S. 651, 677–678 (1974).
18.  Jump to essay-18Lapides v. Board of Regents, 535 U.S. 613 (2002

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Amdt11.6.2 Abrogation of State Sovereign Immunity

Eleventh Amendment:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

The Constitution grants Congress power to regulate state action by legislation. In some instances when Congress does so, it may subject states to suit by individuals to implement the legislation. The clearest example arises from the Civil War Amendments, which directly restrict state powers and expressly authorize Congress to enforce these restrictions through appropriate legislation.¹ Thus, in Fitzpatrick v. Bitzer, the Court stated: the Eleventh Amendment and the principle of state sovereignty which it embodies . . . are necessarily limited, by the enforcement provisions of § 5 of the Fourteenth Amendment.² The power to enforce the Civil War Amendments is substantive, however, not being limited to remedying judicially cognizable violations of the amendments, but extending as well to measures that in Congress’s judgment will promote compliance.³ The principal judicial brake on this power to abrogate state immunity in legislation enforcing the Civil War Amendments is the rule requiring that congressional intent to subject states to suit be clearly stated.⁴

In the 1989 case of Pennsylvania v. Union Gas Co.,⁵ the Court—temporarily at least—ended years of uncertainty by holding expressly that Congress acting pursuant to its Article I powers (as opposed to its Fourteenth Amendment powers) may abrogate the Eleventh Amendment immunity of the states, so long as it does so with sufficient clarity. Twenty-five years earlier the Court had stated that same principle,⁶ but only as an alternative holding, and a later case had set forth a more restrictive rule.⁷ The premises of Union Gas were that by consenting to ratification of the Constitution, with its Commerce Clause and other clauses empowering Congress and limiting the states, the states had implicitly authorized Congress to divest them of immunity, that the Eleventh Amendment was a restraint upon the courts and not similarly upon Congress, and that the exercises of Congress’s powers under the Commerce Clause and other clauses would be incomplete without the ability to authorize damage actions against the states to enforce congressional enactments. The dissenters disputed each of these strands of the argument, and, while recognizing the Fourteenth Amendment abrogation power, took the position that no such power existed under Article I.

Pennsylvania v. Union Gas lasted less than seven years before the Court overruled it in Seminole Tribe of Florida v. Florida.⁸ Chief Justice William Rehnquist, writing for a 5-4 majority, concluded that Union Gas had deviated from a line of cases, tracing back to Hans v. Louisiana,⁹ which viewed the Eleventh Amendment as implementing the fundamental principle of sovereign immunity [that] limits the grant of judicial authority in Article III.¹⁰ Because the Eleventh Amendment restricts the judicial power under Article III, . . . Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction.¹¹ Subsequent cases have upheld this interpretation.¹²

Section 5 of the Fourteenth Amendment, of course, is another matter. Fitzpatrick v. Bitzer,¹³ which held, in part, that the Fourteenth Amendment operated to alter the pre-existing balance between state and federal power achieved by Article III and the Eleventh Amendment, remains good law.¹⁴ This ruling led to a number of cases that examined whether a statute that might be applied against non-state actors under an Article I power could also, under section 5 of the Fourteenth Amendment, be applied against the states.¹⁵

In another line of cases, a different majority of the Court focused on language Congress used to overcome immunity rather than the authority underlying the action. Henceforth, the Court held in a 1985 decision, and even with respect to statutes that were enacted prior to promulgation of this judicial rule of construction, Congress may abrogate the States’ constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute itself.¹⁶

At one time, a plurality of the Court appeared to take the position that Congress had to refer specifically to state sovereign immunity and the Eleventh Amendment for its language to be unmistakably clear.¹⁷ Thus in 1985 the Court held in Atascadero State Hospital v. Scanlon that general language subjecting to suit in federal court by any recipient of Federal assistance under the Rehabilitation Act was insufficient to satisfy this test, not because of any question about whether states are recipients within the meaning of the provision but because given their constitutional role, the states are not like any other class of recipients of federal aid.¹⁸ As a result of these rulings, Congress began to use words the Court had identified.¹⁹ Since then, however, the Court has accepted less precise language,²⁰ and in at least one context, has eliminated the requirement of specific abrogation language altogether.²¹

Even before the Alden v. Maine decision,²² when the Court believed that Eleventh Amendment sovereign immunity did not apply to suits in state courts, the Court applied its rule of strict construction to require unmistakable clarity by Congress in order to subject states to suit.²³ Although the Court was willing to recognize exceptions to the clear statement rule when the issue involved subjection of states to suit in state courts, the Court also suggested the need for symmetry so that states’ liability or immunity would be the same in both state and federal courts.²⁴

Footnotes

1.  Jump to essay-1Fitzpatrick v. Bitzer, 427 U.S. 445 (1976); Hutto v. Finney, 437 U.S. 678 (1978); City of Rome v. United States, 446 U.S. 156 (1980). More recent cases affirming Congress’s Section 5 powers include Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 99 (1984); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 (1985); and Dellmuth v. Muth, 491 U.S. 223, 227 (1989).
2.  Jump to essay-2Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976) (under the Fourteenth Amendment, Congress may provide for private suits against States or state officials which are constitutionally impermissible in other contexts.).
3.  Jump to essay-3In Maher v. Gagne, 448 U.S. 122 (1980), the Court found that Congress could validly authorize imposition of attorneys’ fees on the state following settlement of a suit based on both constitutional and statutory grounds, even though settlement had prevented determination that there had been a constitutional violation. Maine v. Thiboutot, 448 U.S. 1 (1980), held that § 1983 suits could be premised on federal statutory as well as constitutional grounds. Other cases in which attorneys’ fees were awarded against states are Hutto v. Finney, 437 U.S. 678 (1978); and New York Gaslight Club v. Carey, 447 U.S. 54 (1980). See also Frew v. Hawkins, 540 U.S. 431 (2004) (upholding enforcement of consent decree).
4.  Jump to essay-4Even prior to the tightening of the clear statement rule over the past several decades to require express legislative language (see note and accompanying text, infra), application of the rule curbed congressional enforcement. Fitzpatrick v. Bitzer, 427 U.S. 445 451–53 (1976); Hutto v. Finney, 437 U.S. 678, 693–98 (1978). Because of its rule of clear statement, the Court in Quern v. Jordan, 440 U.S. 332 (1979), held that in enacting 42 U.S.C. § 1983, Congress had not intended to include states within the term person for the purpose of subjecting them to suit. The question arose after Monell v. N.Y. City Dep’t of Soc. Servs., 436 U.S. 658 (1978), reinterpreted person to include municipal corporations. Cf. Alabama v. Pugh, 438 U.S. 781 (1978). The Court has reserved the question of whether the Fourteenth Amendment itself, without congressional action, modifies the Eleventh Amendment to permit suits against states, Milliken v. Bradley, 433 U.S. 267, 290 n.23 (1977), but the result in Milliken, holding that the Governor could be enjoined to pay half the cost of providing compensatory education for certain schools, which would come from the state treasury, and in Scheuer v. Rhodes, 416 U.S. 232 (1974), permitting imposition of damages upon the governor, which would come from the state treasury, is suggestive. But see Rabinovitch v. Nyquist, 433 U.S. 901 (1977). The Court declined in Ex parte Young, 209 U.S. 123, 150 (1908), to view the Eleventh Amendment as modified by the Fourteenth.
5.  Jump to essay-5491 U.S. 1 (1989). The Justice William Brennan wrote the Court’s plurality opinion and was joined by the three other Justices who believed Hans was incorrectly decided. See id. at 23 (Justice Stevens concurring). Justice Byron White provided the fifth vote id. at 45, 55–56 (Justice Byron White concurring), although he believed Hans was correctly decided and ought to be maintained although he did not believe Congress had acted with sufficient clarity in the statutes before the Court to abrogate immunity. Justice Antonin Scalia thought the statutes were express enough but that Congress simply lacked the power. Id. at 29. Chief Justice William Rehnquist and Justices Sandra Day O’Connor and Anthony Kennedy joined relevant portions of both opinions finding lack of power and lack of clarity.
6.  Jump to essay-6Parden v. Terminal Railway, 377 U.S. 184, 190–92 (1964). See also Employees of the Dep’t of Pub. Health and Welfare v. Department of Pub. Health and Welfare, 411 U.S. 279, 283, 284, 285–86 (1973).
7.  Jump to essay-7Edelman v. Jordan, 415 U.S. 651, 672 (1974).
8.  Jump to essay-8517 U.S. 44 (1996) (invalidating a provision of the Indian Gaming Regulatory Act authorizing an Indian tribe to sue a state in federal court to compel performance of a duty to negotiate in good faith toward the formation of a compact).
9.  Jump to essay-9134 U.S. 1 (1890).
10.  Jump to essay-10517 U.S. at 64 (quoting Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 97–98 (1984).
11.  Jump to essay-11517 U.S. at 72–73. Justice David Souter’s dissent undertook a lengthy refutation of the majority’s analysis, asserting that the Eleventh Amendment is best understood, in keeping with its express language, as barring only suits based on diversity of citizenship, and as having no application to federal question litigation. Moreover, Justice Souter contended, the state sovereign immunity that the Court mistakenly recognized in Hans v. Louisiana was a common law concept that had no constitutional status and was subject to congressional abrogation. 517 U.S. at 117. The Constitution made no provision for wholesale adoption of the common law, but, on the contrary, was premised on the view that common law rules would always be subject to legislative alteration. This imperative of legislative control grew directly out of the Framers’ revolutionary idea of popular sovereignty. Id. at 160.
12.  Jump to essay-12Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999) (the Trademark Remedy Clarification Act, an amendment to the Lanham Act, did not validly abrogate state immunity); Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627 (1999) (amendment to patent laws abrogating state immunity from infringement suits is invalid); Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000) (abrogation of state immunity in the Age Discrimination in Employment Act is invalid); Allen v. Cooper, 140 S. Ct. 994 (2020) (the Copyright Remedy Clarification Act of 1990 did not validly abrogate state sovereign immunity).
13.  Jump to essay-13427 U.S. 445 (1976).
14.  Jump to essay-14Seminole Tribe, 517 U.S. at 65–66.
15.  Jump to essay-15See Fourteenth Amendment, Congressional Definition of Fourteenth Amendment Rights, infra.
16.  Jump to essay-16Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985) (emphasis added).
17.  Jump to essay-17Justice Anthony Kennedy for the Court in Dellmuth, 491 U.S. at 231, expressly noted that the statute before the Court did not demonstrate abrogation with unmistakable clarity because, inter alia, it makes no reference whatsoever to either the Eleventh Amendment or the States’ sovereign immunity. Justice Antonin Scalia, one of four concurring Justices, expressed an understanding that the Court’s reasoning would allow for clearly expressed abrogation of immunity without explicit reference to state sovereign immunity or the Eleventh Amendment. Id. at 233.
18.  Jump to essay-18Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 246 (1985). See also Dellmuth v. Muth, 491 U.S. 223 (1989).
19.  Jump to essay-19In 1986, following Atascadero, Congress provided that states were not to be immune under the Eleventh Amendment from suits under several laws barring discrimination by recipients of federal financial assistance. Pub. L. No. 99-506, § 1003, 100 Stat. 1845 (1986), 42 U.S.C. § 2000d-7. Following Dellmuth, Congress amended the statute to insert the explicit language. Pub. L. No. 101-476, § 103, 104 Stat. 1106 (1990), 20 U.S.C. § 1403. See also the Copyright Remedy Clarification Act, Pub. L. 101-553, § 2, 104 Stat. 2749 (1990), 17 U.S.C. § 511 (making states and state officials liable in damages for copyright violations).
20.  Jump to essay-20Kimel v. Florida Board of Regents, 528 U.S. 62, 74–78 (2000). In Kimel, statutory language authorized age discrimination suits against any employer (including a public agency), and a public agency was defined to include the government of a State or political subdivision thereof. The Court found this language to be sufficiently clear evidence of intent to abrogate state sovereign immunity. The relevant portion of the opinion was written by Justice Sandra Day O’Connor, and joined by Chief Justice William Rehnquist and Justices John Stevens, Antonin Scalia, David Souter, Ruth Bader Ginsburg, Stephen Breyer and John Stevens. But see Raygor v. Regents of the University of Minnesota, 534 U.S. 533 (2002) (federal supplemental jurisdiction statute which tolls limitations period for state claims during pendency of federal case not applicable to claim dismissed on the basis of Eleventh Amendment immunity).
21.  Jump to essay-21Central Virginia Community College v. Katz, 546 U.S. 356, 363 (2006) (abrogation of state sovereign immunity under the Bankruptcy Clause was effectuated by the Constitution, so it need not additionally be done by statute); id. at 383 (Justice Clarence Thomas dissenting).
22.  Jump to essay-22527 U.S. 706 (1999).
23.  Jump to essay-23Will v. Michigan Dep’t of State Police, 491 U.S. 58 (1989) (holding that states and state officials sued in their official capacity could not be made defendants in § 1983 actions in state courts).
24.  Jump to essay-24Hilton v. South Carolina Pub. Rys. Comm’n, 502 U.S. 197, 206 (1991) (interest in symmetry is outweighed by stare decisis, the FELA action being controlled by Parden v. Terminal Ry

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Amdt11.6.3 Officer Suits and State Sovereign Immunity

Eleventh Amendment:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Courts may provide relief from government wrongs under the doctrine that sovereign immunity does not prevent suits to restrain individual government officials.¹ The doctrine is built upon a double fiction: that for purposes of the sovereign’s immunity, a suit against an official is not a suit against the government, but for the purpose of finding state action to which the Constitution applies, the official’s conduct is that of the state.² The doctrine is often associated with the decision in Ex parte Young.³

Young arose when a state legislature passed a law reducing railroad rates and providing severe penalties for any railroad that failed to comply with the law. Plaintiffs brought a federal action to enjoin Young, the state attorney general, from enforcing the law, alleging that it was unconstitutional and that they would suffer irreparable harm if he were not prevented from acting. An injunction was granted forbidding Young from acting on the law, an injunction he violated by bringing an action in state court against noncomplying railroads; for this action he was adjudged in contempt.

In deciding Young, the Court faced inconsistent lines of cases, including numerous precedents for permitting suits against state officers. Chief Justice John Marshall had begun the process in Osborn by holding that suit was barred only when the state was formally named a party.⁴ He modified his position to preclude suit when an official, the governor of a state, was sued in his official capacity,⁵ but relying on Osborn and reading Madrazo narrowly, the Court later held in a series of cases that an official of a state could be sued to prevent him from executing a state law in conflict with the Constitution or a law of the United States, and the fact that the officer may be acting on behalf of the state or in response to a state statutory obligation did not make the suit one against the state.⁶ Subsequently the Court developed another more functional, less formalistic concept of the Eleventh Amendment and sovereign immunity, which evidenced an increasing wariness toward affirmatively ordering states to relinquish state-controlled property⁷ and culminated in the broad reading of Eleventh Amendment immunity in Hans v. Louisiana.⁸

Two of the leading cases concerned suits to prevent Southern states from defaulting on bonds.⁹ In Louisiana v. Jumel,¹⁰ a Louisiana citizen sought to compel the state treasurer to apply a sinking fund that had been created under the earlier constitution for the payment of the bonds after a subsequent constitution had abolished this provision for retiring the bonds. The proceeding was held to be a suit against the state.¹¹ Then, In re Ayers¹² purported to supply a rationale for cases on the issuance of mandamus or injunctive relief against state officers that would have severely curtailed federal judicial power. Suit against a state officer was not barred when his action, aside from any official authority claimed as its justification, was a wrong simply as an individual act, such as a trespass, but if the act of the officer did not constitute an individual wrong and was something that only a state, through its officers, could do, the suit was in actuality a suit against the state and was barred.¹³ That is, the unconstitutional nature of the state statute under which the officer acted did not itself constitute a private cause of action. For that, one must be able to point to an independent violation of a common law right.¹⁴

Although Ayers was in all relevant points on all fours with Young,¹⁵ the Young Court held that the court had properly issued the injunction against the state attorney general, even though the state was in effect restrained as well. The Court stated that [t]he act to be enforced is alleged to be unconstitutional, and, if it be so, the use of the name of the State to enforce an unconstitutional act to the injury of the complainants is a proceeding without the authority of and one which does not affect the State in its sovereign or governmental capacity.¹⁶ Rather, the Court noted, [i]t is simply an illegal act upon the part of a state official in attempting by the use of the name of the State to enforce a legislative enactment which is void because unconstitutional. If the act which the state Attorney General seeks to enforce be a violation of the Federal Constitution, the officer in proceeding under such enactment comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subject in his person to the consequences of his individual conduct.¹⁷ Justice John Harlan was the only dissenter, arguing that in law and fact the suit was one only against the state and that the suit against the individual was a mere fiction.¹⁸

Justice John Harlan’s fiction remains a mainstay of Eleventh Amendment jurisprudence.¹⁹ It accounts for much of the litigation brought by individuals to challenge the execution of state policies. Suits against state officers alleging that they are acting pursuant to an unconstitutional statute are the standard device by which the validity of state legislation in federal courts is tested prior to enforcement and thus interpretation by state courts.²⁰ Similarly, suits to restrain state officials from contravening federal statutes²¹ or to compel undertaking affirmative obligations imposed by the Constitution or federal laws²² are common.

For years, the accepted rule was that the Eleventh Amendment did not preclude suits prosecuted against state officers in federal courts upon grounds that they are acting in excess of state statutory authority²³ or that they are not doing something required by state law.²⁴ However, in Pennhurst State School & Hospital v. Halderman,²⁵ the Court held that Young did not permit suits in federal courts against state officers alleging violations of state law. In the Court’s view, Young was necessary to promote the supremacy of federal law, a basis that disappears if the violation alleged is of state law. The Court also still adheres to the doctrine, first pronounced in Governor of Georgia v. Madrazo,²⁶ that some suits against officers are actually suits against the state²⁷ and are barred by the state’s immunity, such as when the suit involves state property or asks for relief which clearly calls for the exercise of official authority.²⁸

For example, a suit to prevent tax officials from collecting death taxes arising from the competing claims of two states as being the last domicile of the decedent foundered upon the conclusion that there could be no credible claim of a constitutional or federal law violation; state law imposed the obligation upon the officials and in reality the action was against the state.²⁹ Suits against state officials to recover taxes have also been made increasingly difficult to maintain. Although the Court long ago held that the state sovereign immunity prevented a suit to recover money in the state treasury,³⁰ the Court also held that a suit would lie against a revenue officer to recover tax moneys illegally collected and still in his possession.³¹ Beginning, however, with Great Northern Life Insurance Co. v. Read,³² the Court has held that this kind of suit cannot be maintained unless the state expressly consents to suits in federal courts. In this case, the state statute provided for payment of taxes under protest and for suits afterward against state tax collection officials for recovery of taxes illegally collected, which revenues were required to be kept segregated.³³

In Edelman v. Jordan,³⁴ the Court appeared to begin to adopt new restrictive interpretations of what the Eleventh Amendment proscribed. The Court announced in dictum that a suit seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment.³⁵ The Court held, however, that it was permissible for federal courts to require state officials to comply in the future with claims payment provisions of the welfare assistance sections of the Social Security Act, but that they were not permitted to hear claims seeking, or issue orders directing, payment of funds found to be wrongfully withheld.³⁶ Conceding that some of the characteristics of prospective and retroactive relief would be the same in their effects upon the state treasury, the Court nonetheless believed that retroactive payments were equivalent to imposing liabilities which must be paid from public funds in the treasury, and that this was barred by the Eleventh Amendment. The spending of money from the state treasury by state officials shaping their conduct in accordance with a prospective-only injunction is an ancillary effect which is a permissible and often an inevitable consequence of Ex parte Young, whereas payment of state funds . . . as a form of compensation to those wrongfully denied the funds in the past is in practical effect indistinguishable in many aspects from an award of damages against the State.³⁷

That Edelman, in many instances, may be a formal rather than an actual restriction is illustrated by Milliken v. Bradley,³⁸ in which state officers were ordered to spend money from the state treasury to finance remedial educational programs to counteract effects of past school segregation; the decree, the Court said, fits squarely within the prospective-compliance exception reaffirmed by Edelman.³⁹ Although the payments were a result of past wrongs, the Court did not view them as compensation, inasmuch as they were not to be paid to victims of past discrimination but rather used to better conditions either for them or their successors.⁴⁰ The Court also applied Edelman in Papasan v. Allain,⁴¹ holding that a claim against a state for payments representing a continuing obligation to meet trust responsibilities stemming from a nineteenth century grant of public lands for the benefit of educating the Chickasaw Indian Nation is barred by the Eleventh Amendment as indistinguishable from an action for past loss of trust corpus, but that an Equal Protection claim for present unequal distribution of school land funds is the type of ongoing violation for which the Eleventh Amendment does not bar redress.

In Idaho v. Coeur d’Alene Tribe of Idaho,⁴² the Court further narrowed Ex parte Young. The implications of the case are difficult to predict, because of the narrowness of the Court’s holding, the closeness of the vote (5-4), and the inability of the majority to agree on a rationale. The Court held that the Tribe’s suit against state officials for a declaratory judgment and injunction to establish the Tribe’s ownership and control of the submerged lands of Lake Coeur d’Alene is barred by the Eleventh Amendment. The Tribe’s claim was based on federal law—Executive Orders issued in the 1870s, prior to Idaho statehood. The portion of Justice Anthony Kennedy’s opinion that represented the Court’s opinion concluded that the Tribe’s unusual suit was the functional equivalent of a quiet title action which implicates special sovereignty interests.⁴³ The case was unusual because state ownership of submerged lands traces to the Constitution through the equal footing doctrine, and because navigable waters uniquely implicate sovereign interests.⁴⁴ This was therefore no ordinary property dispute in which the state would retain regulatory control over land regardless of title. Rather, grant of the far-reaching and invasive relief sought by the Tribe would diminish, even extinguish, the State’s control over a vast reach of lands and waters long . . . deemed to be an integral part of its territory.⁴⁵

The Supreme Court faced a novel question related to state sovereign immunity in the 2021 case Whole Woman’s Health v. Jackson.⁴⁶ That case involved a challenge to a Texas state law known as the Texas Heartbeat Act or S.B. 8, which allowed private citizens to sue healthcare providers and others who perform or abet abortions after a fetal heartbeat is detected. Because S.B. 8 banned some pre-viability abortions, it appeared to conflict with the Supreme Court’s abortion jurisprudence at the time it was enacted. However, because the statute was enforced through private civil suits, rather than by state actors, it was not clear whether people challenging the law could bring suit under Ex parte Young to prevent its enforcement. Some opponents of S.B. 8 brought suit under Young against the Texas attorney general, clerks and judges of Texas state courts that could hear S.B. 8 claims, and certain state medical licensing officials. The Supreme Court held that the suit could not proceed against state court judges or clerks because judicial officers are not subject to suit under Young,⁴⁷ and that the plaintiffs could not sue the Texas attorney general because he lacked the power to enforce S.B. 8.⁴⁸ The Court allowed the suit to proceed against the state medical licensing officials, however, concluding that those officials had some authority to enforce S.B. 8.⁴⁹ Whole Woman’s Health did not fully resolve questions about the extent to which states can enact legislation that limits the exercise of constitutional rights but evades federal judicial review under Young.⁵⁰

Thus, as with the cases dealing with suits facially against the states themselves, the Court’s greater attention to state immunity in the context of suits against state officials has resulted in a mixed picture, of some new restrictions, of the lessening of others. But a number of Justices have increasingly turned to the Eleventh Amendment as a means to reduce federal-state judicial conflict.⁵¹

Footnotes

1.  Jump to essay-1See, e.g. Larson v. Domestic and Foreign Corp., 337 U.S. 682 (1949). It should be noted, however, that as a threshold issue in lawsuits against state employees or entities, courts must look to whether the sovereign is the real party in interest to determine whether state sovereign immunity bars the suit. See Hafer v. Melo, 502 U.S. 21, 25 (1991). Court must determine whether the remedy sought is truly against the sovereign, and if an action is in essence against a State even if the State is not a named party, then the State is the real party in interest and is entitled to invoke the Eleventh Amendment’s protections. See Lewis v. Clarke, 137 S. Ct. 1285, 1290–91 (2017). As a result, arms of the state, such as a state university, enjoy sovereign immunity. Id. at 6. Likewise, lawsuits brought against employees in their official capacity may also be barred by sovereign immunity. Id.
2.  Jump to essay-2C. Wright, The Law of Federal Courts § 48 (4th ed. 1983). 3. 209 U.S. 123 (1908).
3.  Jump to essay-3209 U.S. 23 (1908).
4.  Jump to essay-4Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824).
5.  Jump to essay-5Governor of Georgia v. Madrazo, 26 U.S. (1 Pet.) 110 (1828).
6.  Jump to essay-6Davis v. Gray, 83 U.S. (16 Wall.) 203 (1872); Board of Liquidation v. McComb, 92 U.S. 531 (1876); Allen v. Baltimore & Ohio R.R., 114 U.S. 311 (1885); Rolston v. Missouri Fund Comm’rs, 120 U.S. 390 (1887); Pennoyer v. McConnaughy, 140 U.S. 1 (1891); Reagan v. Farmers’ Loan & Trust Co., 154 U.S. 362 (1894); Smyth v. Ames, 169 U.S. 466 (1898); Scranton v. Wheeler, 179 U.S. 141 (1900).
7.  Jump to essay-7Judicial reluctance to confront government officials over government-held property did not extend in like manner in a federal context, as was evident in United States v. Lee, the first case in which the sovereign immunity of the United States was claimed and rejected. United States v. Lee, 106 U.S. 196 (1882). See Article III, Suits Against United States Officials. However, the Court sustained the suit against the federal officers by only a 5-4 vote, and the dissent presented the arguments that were soon to inform Eleventh Amendment cases.
8.  Jump to essay-8134 U.S. 1 (1890).
9.  Jump to essay-9See J. J. Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 Colum. L. Rev. 1889, 1968–2003 (1983); J. V. Orth, The Interpretation of the Eleventh Amendment, 1798–1908: A Case Study of Judicial Power, 1983 U. Ill. L. Rev. 423.
10.  Jump to essay-10107 U.S. 711 (1882).
11.  Jump to essay-11The relief asked will require the officers against whom the process is issued to act contrary to the positive orders of the supreme political power of the State, whose creatures they are, and to which they are ultimately responsible in law for what they do. They must use the public money in the treasury and under their official control in one way, when the supreme power has directed them to use it in another, and they must raise more money by taxation when the same power has declared that it shall not be done. 107 U.S. at 721. See also Christian v. Atlantic & N.C. R.R., 133 U.S. 233 (1890).
12.  Jump to essay-12123 U.S. 443 (1887).
13.  Jump to essay-13123 U.S. at 500–01, 502.
14.  Jump to essay-14Ayers sought to enjoin state officials from bringing suit under an allegedly unconstitutional statute purporting to overturn a contract between the state and the bondholders to receive the bond coupons for tax payments. The Court asserted that the state’s contracts impliedly contained the state’s immunity from suit, so that express withdrawal of a supposed consent to be sued was not a violation of the contract; but, in any event, because any violation of the assumed contract was an act of the state, to which the officials were not parties, their actions as individuals in bringing suit did not breach the contract. 123 U.S. at 503, 505–06. The rationale had been asserted by a four-Justice concurrence in Antoni v. Greenhow, 107 U.S. 769, 783 (1883). See also Cunningham v. Macon & Brunswick R.R., 109 U.S. 446 (1883); Hagood v. Southern, 117 U.S. 52 (1886); North Carolina v. Temple, 134 U.S. 22 (1890); In re Tyler, 149 U.S. 164 (1893); Baltzer v. North Carolina, 161 U.S. 240 (1896); Fitts v. McGhee, 172 U.S. 516 (1899); Smith v. Reeves, 178 U.S. 436 (1900).
15.  Jump to essay-15Ayers would seem to be decisive of the Young litigation. C. Write, The Law of Federal Courts § 48 at 288 (4th ed. 1983). The Young Court purported to distinguish and to preserve Ayers but on grounds that either were irrelevant to Ayers or that had been rejected in the earlier case. Ex parte Young, 209 U.S. 123, 151, 167 (1908). Similarly, in a later case, the Court continued to distinguish Ayers but on grounds that did not in fact distinguish it from the case before the Court, in which it permitted a suit against a state revenue commissioner to enjoin him from collecting allegedly unconstitutional taxes. Georgia R.R. & Banking Co. v. Redwine, 342 U.S. 299 (1952).
16.  Jump to essay-16 Ex parteYoung, 209 U.S. 123, 159–60 (1908). The opinion did not address the issue of how an officer stripped of his official . . . character could violate the Constitution, in that the Constitution restricts only state action, but the double fiction has been expounded numerous times since. Thus, for example, it is well settled that an action unauthorized by state law is state action for purposes of the Fourteenth Amendment. Home Tel. & Tel. Co. v. City of Los Angeles, 227 U.S. 278 (1913). The contrary premise of Barney v. City of New York, 193 U.S. 430 (1904), though eviscerated by Home Tel. & Tel. was not expressly disavowed until United States v. Raines, 362 U.S. 17, 25–26 (1960).
17.  Jump to essay-17 Ex parte Young, 209 U.S. 123, 159–60 (1908).
18.  Jump to essay-18Ex parte Young, 209 U.S. 123, 173–74 (1908) (Harlan, J., dissenting). In the process of limiting application of Young, a Court majority referred to the Young fiction. Idaho v. Coeur d’Alene Tribe, 521 U.S. 261, 281 (1997).
19.  Jump to essay-19E.g., Ray v. Atlantic Richfield Co., 435 U.S. 151, 156 n.6 (1978) (rejecting request of state officials being sued to restrain enforcement of state statute as preempted by federal law that Young be overruled); Florida Dep’t of State v. Treasure Salvors, 458 U.S. 670, 685 (1982).
20.  Jump to essay-20See, e.g., Home Tel. & Tel. Co. v. City of Los Angeles, 227 U.S. 278 (1913); Truax v. Raich, 239 U.S. 33 (1915); Cavanaugh v. Looney, 248 U.S. 453 (1919); Terrace v. Thompson, 263 U.S. 197 (1923); Hygrade Provision Co. v. Sherman, 266 U.S. 497 (1925); Massachusetts State Grange v. Benton, 272 U.S. 525 (1926); Hawks v. Hamill, 288 U.S. 52 (1933). See also Graham v. Richardson, 403 U.S. 365 (1971) (enjoining state welfare officials from denying welfare benefits to otherwise qualified recipients because they were aliens); Goldberg v. Kelly, 397 U.S. 254 (1970) (enjoining city welfare officials from following state procedures for termination of benefits); Milliken v. Bradley, 433 U.S. 267 (1977) (imposing half the costs of mandated compensatory education programs upon state through order directed to governor and other officials). On injunctions against governors, see Continental Baking Co. v. Woodring, 286 U.S. 352 (1932); Sterling v. Constantin, 287 U.S. 378 (1932). Applicable to suits under this doctrine are principles of judicial restraint—constitutional, statutory, and prudential—discussed under Article III.
21.  Jump to essay-21E.g., Edelman v. Jordan, 415 U.S. 651, 664–68 (1974); Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978).
22.  Jump to essay-22E.g., Women’s Whole Health v. Jackson, No. 21-463 (2021) (citing Ex Parte Young in refusing to enjoin state court clerks and judges from enforcement of a state law); Milliken v. Bradley, 433 U.S. 267 (1977); Edelman v. Jordan, 415 U.S. 651, 664–68 (1974); Quern v. Jordan, 440 U.S. 332, 346–49 (1979).
23.  Jump to essay-23E.g., Pennoyer v. McConnaughy, 140 U.S. 1 (1891); Scully v. Bird, 209 U.S. 481 (1908); Atchison, T. & S. F. Ry. v. O’Connor, 223 U.S. 280 (1912); Greene v. Louisville & Interurban R.R., 244 U.S. 499 (1917); Louisville & Nashville R.R. v. Greene, 244 U.S. 522 (1917). Property held by state officials on behalf of the state under claimed state authority may be recovered in suits against the officials, although the court may not conclusively resolve the state’s claims against it in such a suit. South Carolina v. Wesley, 155 U.S. 542 (1895); Tindal v. Wesley, 167 U.S. 204 (1897); Hopkins v. Clemson College, 221 U.S. 636 (1911). See also Florida Dep’t of State v. Treasure Salvors, 458 U.S. 670 (1982), in which the eight Justices who agreed that the Eleventh Amendment applied divided 4-4 over the proper interpretation.
24.  Jump to essay-24E.g., Rolston v. Missouri Fund Comm’rs, 120 U.S. 390 (1887); Atchison, T. & S. F. Ry. v. O’Connor, 223 U.S. 280 (1912); Johnson v. Lankford, 245 U.S. 541, 545 (1918); Lankford v. Platte Iron Works Co., 235 U.S. 461, 471 (1915); Davis v. Wallace, 257 U.S. 478, 482–85 (1922); Glenn v. Field Packing Co., 290 U.S. 177, 178 (1933); Lee v. Bickell, 292 U.S. 415, 425 (1934).
25.  Jump to essay-25465 U.S. 89 (1984).
26.  Jump to essay-26Governor of Georgia v. Madrazo, 26 U.S. (1 Pet.) 110 (1828).
27.  Jump to essay-27E.g., Ford Motor Co. v. Department of the Treasury, 323 U.S. 459, 464 (1945).
28.  Jump to essay-28In Frew v. Hawkins, 540 U.S. 431 (2004), Texas, which was under a consent decree regarding its state Medicaid program, attempted to extend the reasoning of Pennhurst, arguing that unless an actual violation of federal law had been found by a court, then such court would be without jurisdiction to enforce such decree. The Court, in a unanimous opinion, declined to so extend the Eleventh Amendment, noting, among other things, that the principles of federalism were served by giving state officials the latitude and discretion to enter into enforceable consent decrees. Id. at 442.
29.  Jump to essay-29Worcester County Trust Co. v. Riley, 302 U.S. 292 (1937). See also Old Colony Trust Co. v. Seattle, 271 U.S. 426 (1926). Worcester County remains viable. Cory v. White, 457 U.S. 85 (1982). The actions were under the Federal Interpleader Act, 49 Stat. 1096 (1936), 28 U.S.C. § 1335, under which other actions against officials have been allowed. E.g., Treines v. Sunshine Mining Co., 308 U.S. 66 (1939) (joinder of state court judge and receiver in interpleader proceeding in which state had no interest and neither judge nor receiver was enjoined by final decree). See also Missouri v. Fiske, 290 U.S. 18 (1933).
30.  Jump to essay-30Smith v. Reeves, 178 U.S. 436 (1900).
31.  Jump to essay-31Atchison, T. & S. F. Ry. v. O’Connor, 223 U.S. 280 (1912).
32.  Jump to essay-32322 U.S. 47 (1944).
33.  Jump to essay-33See also Ford Motor Co. v. Department of Treasury, 323 U.S. 459 (1945); Kennecott Copper Corp. v. Tax Comm’n, 327 U.S. 573 (1946). States may confine to their own courts suits to recover taxes. Smith v. Reeves, 178 U.S. 436 (1900); Murray v. Wilson Distilling Co., 213 U.S. 151 (1909); Chandler v. Dix, 194 U.S. 590 (1904).
34.  Jump to essay-34415 U.S. 651 (1974).
35.  Jump to essay-35415 U.S. at 663.
36.  Jump to essay-36415 U.S. at 667–68. Where the money at issue is not a state’s, but a private party’s, then the distinction between retroactive and prospective obligations is not important. In Verizon Md. Inc. v. Public Serv. Comm’n of Md., 535 U.S. 635 (2002), the Court held that a challenge to a state agency decision regarding a private party’s past and future contractual liabilities does not violate the Eleventh Amendment. Id. at 648. In fact, three justices questioned whether the Eleventh Amendment is even implicated where there is a challenge to a state’s determination of liability between private parties. Id. at 649 (Justice David Souter, concurring).
37.  Jump to essay-37415 U.S. at 668. See also Quern v. Jordan, 440 U.S. 332 (1979) (reaffirming Edelman, but holding that state officials could be ordered to notify members of the class that had been denied retroactive relief in that case that they might seek back benefits by invoking state administrative procedures; the order did not direct the payment but left it to state discretion to award retroactive relief). But cf. Green v. Mansour, 474 U.S. 64 (1985). Notice relief permitted under Quern v. Jordan is consistent with the Eleventh Amendment only insofar as it is ancillary to valid prospective relief designed to prevent ongoing violations of federal law. Thus, where Congress has changed the AFDC law and the state is complying with the new law, an order to state officials to notify claimants that past payments may have been inadequate conflicts with the Eleventh Amendment.
38.  Jump to essay-38433 U.S. 267 (1977).
39.  Jump to essay-39433 U.S. at 289.
40.  Jump to essay-40433 U.S. at 290 n.22. See also Hutto v. Finney, 437 U.S. 678, 690–91 (1978) (affirming order to pay attorney’s fees out of state treasury as an ancillary order because of state’s bad faith).
41.  Jump to essay-41478 U.S. 265 (1986).
42.  Jump to essay-42521 U.S. 261 (1997).
43.  Jump to essay-43521 U.S. at 281.
44.  Jump to essay-44521 U.S. at 284.
45.  Jump to essay-45521 U.S. at 282.
46.  Jump to essay-46142 S. Ct. 522 (2021).
47.  Jump to essay-47142 S. Ct. 522 (2021).
48.  Jump to essay-48Id. at 531–34.
49.  Jump to essay-49Id. at 534–35. In addition to their claims against state officials under Young, the S.B. 8 challengers sued a private individual who had threatened to sue under S.B. 8; the Court held that claim could not proceed because the private defendant later disclaimed any intent to sue under S.B. 8. Id. at 537.
50.  Jump to essay-50Id. at 535–37; id. at 544 (Roberts, C.J, dissenting); id. at 545 (Sotomayor, J., dissenting).Following remand and certification of a state law question to the Texas Supreme Court, the state court ruled that Texas law did not authorize state medical licensing officials to enforce S.B. 8, Whole Woman’s Health v. Jackson, 642 S.W. 3d 569 (Tex. 2022), and the U.S. Court of Appeals for the Fifth Circuit dismissed the claims against those officials, Whole Woman’s Health v. Jackson, 31 F.4th 1004 (Mem) (5th Cir. 2022). The U.S. Supreme Court later overruled key abortion precedents that applied when it decided Whole Woman’s Health, removing the main substantive basis for constitutional challenges to S.B. 8. Dobbs v. Jackson Women’s Health Organization, No. 19-1392, 2022 WL 2276808 (June 24, 2022). The procedural issues presented in Whole Woman’s Health remain unresolved, as legislation based on S.B. 8 may u See J. J. Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 Colum. L. Rev. 1889, 1968–2003 (1983); J. V. Orth, The Interpretation of the Eleventh Amendment, 1798–1908: A Case Study of Judicial Power, 1983 U. Ill. L. Rev. 423.
51.  Jump to essay-51142 S. Ct. 522 (2021).

source

Amdt11.6.4 Tort Actions Against State Officials

Eleventh Amendment:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

In Tindal v. Wesley,¹ the Court adopted the rule of United States v. Lee,² a tort suit against federal officials, to permit a tort action against state officials to recover real property held by them and claimed by the state and to obtain damages for the period of withholding. State immunity afforded by the Eleventh Amendment has long been held not to extend to actions against state officials for damages arising out of willful and negligent disregard of state laws.³ The reach of the rule is evident in Scheuer v. Rhodes,⁴ in which the Court held that plaintiffs were not barred by the Eleventh Amendment or other immunity doctrines from suing the governor and other officials of a state alleging that they deprived plaintiffs of federal rights under color of state law and seeking damages, when it was clear that plaintiffs were seeking to impose individual and personal liability on the officials. There was no executive immunity from suit, the Court held; rather, the immunity of state officials is qualified and varies according to the scope of discretion and responsibilities of the particular office and the circumstances existing at the time the challenged action was taken.⁵

Footnotes

1.  Jump to essay-1167 U.S. 204 (1897).
2.  Jump to essay-2106 U.S. 196 (1882).
3.  Jump to essay-3Johnson v. Lankford, 245 U.S. 541 (1918); Martin v. Lankford, 245 U.S. 547 (1918).
4.  Jump to essay-4416 U.S. 232 (1974).
5.  Jump to essay-5These suits, like suits against local officials and municipal corporations, are typically brought pursuant to 42 U.S.C. § 1983 and typically involve all the decisions respecting liability and immunities thereunder. On the scope of immunity of federal officials, see Article III, Suits Against United States Officials, supra.

source

Supreme Court of California

David VENEGAS, et al., Plaintiffs and Appellants, v. COUNTY OF LOS ANGELES, et al., Defendants and Respondents.

No. S113301.

Decided: April 05, 2004

Robert Mann and Donald W. Cook, Los Angeles, for Plaintiffs and Appellants. Law Offices of John Burton, John Burton, Pasadena, and Mary Anna Soifer for LA Police Watch as Amicus Curiae on behalf of Plaintiffs and Appellants. Franscell, Strickland, Roberts & Lawrence, Cindy S. Lee, Glendale, Jin S. Choi and Adrian J. Barrio for Defendants and Respondents County of Los Angeles, Los Angeles County Sheriff’s Department, Sheriff Lee Baca, Deputy Michael Gray, Deputy Robert Harris and Deputy Thomas Jimenez. Eduardo Olivo, City Attorney (Vernon);  and John J. Cardenas for Defendants and Respondents Vernon Police Department and Detective Steven Wiles.

Does a sheriff act on behalf of the state or county when conducting a criminal investigation, including detaining suspects and searching their home and vehicle?   As we shall see, based on the analysis in prior California cases, sheriffs act on behalf of the state when performing law enforcement activities.   Under the Eleventh Amendment to the United States Constitution, and the doctrine of sovereign immunity, the state is absolutely immune from tort liability under the federal Civil Rights Act (42 U.S.C. § 1983, hereafter section 1983).   Accordingly, as agents of the state when acting in their law enforcement roles, California sheriffs are likewise absolutely immune from prosecution for asserted violations of that section.   We will reverse that part of the judgment of the Court of Appeal reaching a contrary conclusion in this case.

We also consider whether the sheriff’s deputies involved here were entitled to qualified immunity under section 1983 because reasonable officers in their position would have believed their actions were lawful under established law.   We conclude that the Court of Appeal employed incorrect legal principles in  resolving this issue.   After explaining the applicable principles, we will remand to the Court of Appeal to reconsider this primarily factual issue in the context of defendants’ motion for nonsuit.

Finally, we determine whether plaintiffs stated a cause of action against the County of Los Angeles (County) and its sheriff’s department, sheriff, and deputies, under Civil Code section 52.1, for committing an unreasonable detention, search, and seizure.   We conclude that plaintiffs did state a cause of action against these defendants, and we will affirm that portion of the Court of Appeal’s judgment so holding.

I. Facts

The following uncontradicted facts are largely taken from the Court of Appeal’s opinion in this case.   The Task Force for Regional Auto Theft Prevention (TRAP) was an interagency task force run by the County’s Sheriff’s Department to facilitate theft investigations involving multiple jurisdictions.   Defendant Steven Wiles, a police officer for the City of Vernon and a TRAP member, was investigating plaintiff David Venegas’s brother, Ricardo Venegas, who was believed to be involved in an automobile theft ring.   Wiles and other TRAP officers (evidently, defendants Michael Gray, Robert Harris and Thomas Jimenez, each sheriff’s deputies) pursued a car driven by Beatriz Venegas, accompanied by her husband David.   TRAP officers, noting a resemblance between David and Ricardo, stopped the car and learned that David was Ricardo’s brother.   David argued with the officers and they handcuffed him and detained Beatriz.   Wiles questioned David about his car, which had no license plates or vehicle identification number.   David told Wiles he had just bought the car and it was a salvaged vehicle.   The officers impounded the car to determine whether it was stolen.

When asked for identification, David told the officers it was at his home nearby.   David refused to sign an entry and search waiver form to allow the officers to pick up his identification, but he gave verbal consent for the officers to accompany Beatriz to their home for that purpose.   Wiles assured the couple their home would not be searched.

TRAP officers took Beatriz home and had her sign a written entry and search waiver form granting “full and unconditional authority” to the officers to enter and conduct a search for identification and “any related investigation in any related criminal or non-criminal law enforcement matter.”   The officers accompanied her inside her home.   While she was retrieving David’s identification card, the officers searched the entire house and found papers indicating that David was on felony probation.   On learning this, Wiles directed the officers to arrest David for violating Vehicle Code section 10751, subdivision (a), a misdemeanor, and for also violating his probation. Police officers  eventually booked David into custody.   They detained Beatriz for two hours but did not charge her with any offense.   The next day, after determining that the car was probably not stolen, Wiles directed that David be released from custody, but he was not released for another two days.   No charges were ever filed against him.

Plaintiffs David and Beatriz Venegas filed an action against Wiles, the City of Vernon, the Vernon Police Department, and the County and its sheriff’s department, sheriff and deputies.   The complaint purported to state causes of action under section 1983 on behalf of both plaintiffs for unreasonable search and seizure, and a similar cause of action under Civil Code section 52.1, subdivision (b), on David’s behalf.   David also sued for false detention and arrest.

After certain of these claims were settled or resolved in defendants’ favor on demurrer, the remaining ones (concerning the legality of the search of the Venegas home and the detention/arrest of David and Beatriz) were tried.   After plaintiffs rested their case-in-chief, defendants moved for a nonsuit, which the trial court granted, entering judgment in defendants’ favor.

Plaintiffs appealed and the Court of Appeal reversed, holding that (1) triable factual questions existed as to whether Beatriz’s and/or David’s detention was unreasonable and whether the search of their house was invalid;  (2) the trial court erred in sustaining the demurrers of County, its sheriff’s department, sheriff and deputies, to plaintiffs’ section 1983 claims on the ground these persons were immune from liability;  and (3) the trial court erred in sustaining these defendants’ demurrers to plaintiffs’ Civil Code section 52.1 cause of action on the ground plaintiffs failed to allege they were members of a protected class.

II. State Agent Immunity Under Section 1983

County, on behalf of its sheriff’s department and sheriff (hereafter defendants) contends that California sheriffs conducting criminal investigations are acting on behalf of the state when performing law enforcement activities.   Accordingly, defendants claim that, as a state agent, the sheriff enjoys the state’s immunity from prosecution for the asserted violations of section 1983 occurring in this case.   Contrary to the Court of Appeal, we agree with defendants.

Section 1983 provides in pertinent part:  “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 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․”

Is a sheriff engaged in a criminal investigation a “person” under section 1983?   The United States Supreme Court has held that cities, counties, and local officers sued in their official capacity are themselves “persons” for purposes of section 1983 and, although they cannot be held vicariously liable under section 1983 for their subordinate officers’ unlawful acts, they may be held directly liable for constitutional violations carried out under their own regulations, policies, customs, or usages by persons having “final policymaking authority” over the actions at issue.  (McMillian v. Monroe County (1997) 520 U.S. 781, 784-785, 117 S.Ct. 1734, 138 L.Ed.2d 1 (McMillian );  Monell v. New York City Dept. of Social Services (1978) 436 U.S. 658, 690-692, 98 S.Ct. 2018, 56 L.Ed.2d 611 (Monell );  see Pitts v. County of Kern (1998) 17 Cal.4th 340, 348, 70 Cal.Rptr.2d 823, 949 P.2d 920 (Pitts );  County of Los Angeles v. Superior Court (1998) 68 Cal.App.4th 1166, 1171, 80 Cal.Rptr.2d 860 (Peters ).)

On the other hand, states and state officers sued in their official capacity are not considered persons under section 1983 and are immune from liability under the statute by virtue of the Eleventh Amendment and the doctrine of sovereign immunity.  (Howlett v. Rose (1990) 496 U.S. 356, 365, 110 S.Ct. 2430, 110 L.Ed.2d 332;  Will v. Michigan Dept. of State Police (1989) 491 U.S. 58, 63-67, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45;  Pitts, supra, 17 Cal.4th at p. 348, 70 Cal.Rptr.2d 823, 949 P.2d 920;  Peters, supra, 68 Cal.App.4th at p. 1171, 80 Cal.Rptr.2d 860.)   As Will stated, “it does not follow that if municipalities are persons then so are States.   States are protected by the Eleventh Amendment [of the United States Constitution] while municipalities are not․” (Will, supra, at p. 70, 109 S.Ct. 2304.)   Will continued, noting that “Obviously, state officials literally are persons.   But a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official’s office.  [Citation.]  As such, it is no different from a suit against the State itself.  [Citations.]”  (Id. at p. 71, 109 S.Ct. 2304.)   The rule exempting the state and its officers applies to officers such as sheriffs if they were acting as state agents with final policymaking authority over the complained-of actions.  (McMillian, supra, 520 U.S. at pp. 784-785, 117 S.Ct. 1734.)

Defendants claim they are immune from liability under the Eleventh Amendment on the ground that in California, the sheriff acts on behalf of the state rather than the county when engaged in investigating crime.   The Court of Appeal disagreed, holding that the sheriff was acting as an agent of County, not the state, while engaged in the warrantless search of plaintiffs’ home.   The court relied primarily on two federal cases that had concluded that California sheriffs act on behalf of the county in performing at least some of  their law enforcement functions.  (Bishop Paiute Tribe v. County of Inyo (9th Cir.2002) 291 F.3d 549 (Bishop );  vacated on other grounds and remanded in Inyo County v. Paiute-Shoshone Indians of the Bishop Cmty. of the Bishop Colony (2003) 538 U.S. 701, 123 S.Ct. 1887, 155 L.Ed.2d 933 [Indian tribes lack standing to sue under section 1983];  Brewster v. Shasta County (9th Cir.2001) 275 F.3d 803, 807-808 (Brewster ), cert. den. sub nom.  Shasta County v. Brewster (2002) 537 U.S. 814, 123 S.Ct. 75, 154 L.Ed.2d 17.)   Defendants argue these federal decisions are inapposite, and they claim that two California cases are controlling.  (Pitts, supra, 17 Cal.4th 340, 70 Cal.Rptr.2d 823, 949 P.2d 920;  Peters, supra, 68 Cal.App.4th 1166, 80 Cal.Rptr.2d 860.)   We agree with defendants that the state cases more accurately reflect California law.

The Court of Appeal in the present case concluded that the sheriff, exercising his or her crime investigation functions (here, searching plaintiffs’ house and seizing certain documents), acted as an agent of County, not the state.   The court, largely ignoring Pitts, found Peters factually distinguishable because it involved the limited question whether the sheriff, in setting policies concerning the release of persons from county jail, acts on behalf of the state or county.   The Court of Appeal therefore found Peters not dispositive of the issue whether sheriffs act for the state in carrying out crime investigations.   Accordingly, the appellate court looked to the two above cited federal cases holding that California sheriffs are county actors when investigating crime occurring within the county.  (Bishop, supra, 291 F.3d at p. 566;  Brewster, supra, 275 F.3d at pp. 807-808;  see also Cortez v. County of Los Angeles (9th Cir.2002) 294 F.3d 1186, 1191-1192 [sheriff’s department acts as county agent in administering county jail policies];  Streit v. County of Los Angeles (9th Cir.2001) 236 F.3d 552, 559-565 [same].)

Based on its analysis of these federal cases, and its belief that a contrary rule would preclude all section 1983 suits against local law enforcement officers, the Court of Appeal concluded that the trial court erred in sustaining the demurrers of the County and its sheriff’s department and sheriff.   We disagree.   As is apparent, resolution of the question before us inevitably involves careful analysis of several state and federal cases.   We start with the two California cases deemed by defendants to be most apposite, and then consider the principal federal cases cited by plaintiffs and relied on by the Court of Appeal.

A. Pitts

In Pitts, persons whose child molestation convictions were reversed on appeal brought civil actions against the County of Kern and its district attorney and his employees, asserting civil rights violations under section 1983 arising from alleged misconduct during the criminal prosecution.   The district attorney and his employees prevailed under the doctrine of prosecutorial immunity and, accordingly, Pitts was concerned only with the liability of the county.  (Pitts, supra, 17 Cal.4th at pp. 345-347, 352, 70 Cal.Rptr.2d 823, 949 P.2d 920.)

The plaintiffs’ action against the county alleged that its district attorney had established a pattern or practice of procuring false statements and testimony by threats, promises, and intimidation, and also failed to provide adequate training procedures and regulations to prevent such conduct.   (Pitts, supra, 17 Cal.4th at p. 352, 70 Cal.Rptr.2d 823, 949 P.2d 920.)   As noted above, although the county could not be held vicariously liable under section 1983, it could be held directly liable for constitutional violations carried out under its own policies.  (Monell, supra, 436 U.S. at pp. 690-692, 98 S.Ct. 2018.)  Pitts held, however, that a district attorney represents the state rather than the county when preparing to prosecute crimes and training and developing policies for prosecutorial staff.   Although Pitts involved district attorneys rather than sheriffs, the court relied on statutes and analysis applying to both kinds of officers.

In Pitts, we first observed that the question whether a public official represents a county or a state when acting in a particular capacity is analyzed under state, not federal law.  (Pitts, supra, 17 Cal.4th at pp. 352-353, 356, 70 Cal.Rptr.2d 823, 949 P.2d 920;  see McMillian, supra, 520 U.S. at p. 786, 117 S.Ct. 1734 [determining actual functions of government officer is dependent on relevant state law].)   For guidance in resolving this question, Pitts next turned to McMillian, which had examined Alabama state law to determine whether a sheriff was a state or county official.   In McMillian, after his murder conviction was reversed due to suppression of exculpatory evidence, the plaintiff sued an Alabama sheriff for damages under section 1983 for intimidating a witness and withholding evidence.   The United States Supreme Court examined Alabama’s constitutional and statutory provisions concerning sheriffs and concluded that, while executing their law enforcement duties in Alabama, sheriffs are executive officers of the state, not the county, and accordingly are immune from section 1983 liability.   (McMillian, supra, 520 U.S. at pp. 791-793, 117 S.Ct. 1734.)

Among other factors, the McMillian court considered the role of sheriffs as state representatives under the Alabama Constitution and Alabama statutes, the authority of Alabama sheriffs to enforce state criminal laws in their counties, and the lack of similar enforcement authority by the counties themselves.   (McMillian, supra, 520 U.S. at pp. 787-791, 117 S.Ct. 1734.)  McMillian concluded that these factors outweighed several countervailing factors that supported the conclusion that Alabama sheriffs were officers of the county, namely, that the county paid the sheriffs’ salary and provided them with equipment, lodging and expenses, that the sheriffs’ jurisdiction was limited by county borders, and that county voters elected these sheriffs.  (Id. at pp. 791-792, 117 S.Ct. 1734.)

Pitts applied McMillian’s analytical framework to conclude that a California district attorney acts on behalf of the state rather than the county in preparing to prosecute crimes and in training and developing policies for prosecutorial staff.  (Pitts, supra, 17 Cal.4th at pp. 356-366, 70 Cal.Rptr.2d 823, 949 P.2d 920.)   In reaching its conclusion, the court considered several constitutional and statutory provisions tending to support or negate state agency, but placed special emphasis on article V, section 13, of the state Constitution, providing that “[t]he Attorney General shall have direct supervision over every district attorney ․ in all matters pertaining to the duties of their ․ offices․” Under this same provision, the Attorney General may require district attorneys to make appropriate reports “concerning the investigation, detection, prosecution, and punishment of crime in their respective jurisdictions,” and may prosecute violations of law if, in his or her opinion, state laws are not adequately being enforced in any county.  (Pitts, supra, 17 Cal.4th at pp. 356-357, 70 Cal.Rptr.2d 823, 949 P.2d 920.)   We also noted in Pitts that Government Code sections 12550 and 12524, and Penal Code section 923 contain similar provisions placing county district attorneys under the supervision of the state Attorney General.  (Pitts, supra, at pp. 357-358, & fn. 5, 70 Cal.Rptr.2d 823, 949 P.2d 920.)

We observed in Pitts that, in contrast to the broad supervisory powers of the Attorney General over district attorneys, Government Code section 25303 bars county boards of supervisors from affecting or obstructing the district attorneys’ investigative or prosecutorial functions.  (Pitts, supra, 17 Cal.4th at p. 358, 70 Cal.Rptr.2d 823, 949 P.2d 920.)   We also pointed out that a district attorney acts in the name of the people of the state when prosecuting criminal violations of state law.  (Id. at p. 359, 70 Cal.Rptr.2d 823, 949 P.2d 920.)

Pitts readily acknowledged that other constitutional and statutory provisions would support a conclusion that a district attorney is a county officer:  For example, county voters elect district attorneys (Cal. Const., art. XI, § 4, subd. (c)), who are listed as county officers (Gov.Code, § 24000, subd. (a)), are generally ineligible to hold office unless they are registered voters of the county in which they perform their duties (Gov.Code, § 24001), and are compensated as prescribed by the county board of supervisors (Gov.Code, § 25300).  (Pitts, supra, 17 Cal.4th at pp. 360-361, 70 Cal.Rptr.2d 823, 949 P.2d 920.)   Furthermore, under Government Code section 25303, the county board of supervisors supervises the district attorney’s official conduct and expenditure of funds, although it cannot affect the district attorney’s independent investigative and prosecutorial functions.  (Pitts, supra, at p. 361, 70 Cal.Rptr.2d 823, 949 P.2d 920.)   Necessary expenses incurred by the district attorney in the prosecution of criminal cases are considered county charges.  (Gov.Code, § 29601, subd. (b)(2).)

Yet, after balancing the competing factors, and relying on McMillian’s similar analysis, we concluded in Pitts that, when preparing to prosecute and  prosecuting crimes, a district attorney represents the state, and is not considered a policy maker for the county.  (Pitts, supra, 17 Cal.4th at p. 362, 70 Cal.Rptr.2d 823, 949 P.2d 920.)   We similarly concluded that a district attorney does not represent the county when training staff and developing policy in the area of criminal investigation and prosecution.   We stated that “[n]o meaningful analytical distinction can be made between these two functions [i.e., prosecuting crime on the one hand, and training/policymaking regarding criminal investigation and prosecution on the other].   Indeed, a contrary rule would require impossibly precise distinctions.”  (Ibid.) Thus, the constitutional and statutory provisions discussed above give the Attorney General “oversight not only with respect to a district attorney’s actions in a particular case, but also in the training and development of policy intended for use in every criminal case.”  (Id. at p. 363, 70 Cal.Rptr.2d 823, 949 P.2d 920.)

B. Peters

As noted, Pitts involved the question whether district attorneys were state agents when investigating and prosecuting crime, or when training staff and developing policy involving such matters.  Peters, supra, 68 Cal.App.4th 1166, 80 Cal.Rptr.2d 860, applied Pitts’s analysis and extended it to California sheriffs, concluding that in setting policies concerning the release of persons from the county jail, the sheriff acts as a state officer performing state law enforcement duties.   Although Peters did not consider whether a sheriff acts as a state or county officer when, as here, investigating criminal activity, Peters’s reasoning would clearly apply to the present case.

The plaintiff in Peters brought a civil rights action under section 1983, alleging that the sheriff and his deputies, relying on an inapposite arrest warrant, improperly detained her in county jail after she had posted bail.  Peters applied the McMillian/Pitts analysis to determine whether a California sheriff acts as a state or county officer in setting policies governing release of prisoners from the county jail.  Peters found Pitts to be controlling, noting that the same constitutional and statutory provisions governing district attorneys considered in Pitts also apply to sheriffs.  (Peters, supra, 68 Cal.App.4th at pp. 1170, 1174-1175, 80 Cal.Rptr.2d 860.)

For example, article V, section 13 of the California Constitution provides that subject to the powers and duties of the Governor, “[t]he Attorney General shall have direct supervision over every district attorney and sheriff and over such other law enforcement officers as may be designated by law, in all matters pertaining to the duties of their respective offices, and may require any of said officers to make reports concerning the investigation, detection, prosecution, and punishment of crime in their respective jurisdictions as the Attorney General may seem advisable.”  (Italics added.)

Similarly, Government Code section 12560, which relates to sheriffs, is substantially identical to Government Code section 12550, which relates to district attorneys and was relied on in Pitts.  Section 12560 gives the Attorney General “direct supervision” of all sheriffs, with power to order reports “concerning the investigation, detection and punishment of crime in their respective jurisdictions,” and to direct their activities regarding these investigations.  Peters also cited Government Code sections 26600 (sheriffs’ duty to preserve the peace through crime prevention projects), 26601 (sheriffs’ authority to arrest criminal offenders), and 26602 (sheriffs’ duty to prevent breaches of peace and investigate public offenses).   As in Pitts, the court in Peters found all these provisions instructive on the issue whether a sheriff acts as a state or county agent in establishing policies for the release of arrestees from jail.  (Peters, supra, 68 Cal.App.4th at pp. 1174-1175, 80 Cal.Rptr.2d 860.)

In addition, Peters pointed out that, as in Pitts with respect to district attorneys, the county board of supervisors has no direct control over a sheriff’s performance of law enforcement functions.  Government Code section 25303, upon which Pitts relied for this proposition, applies to both offices.   Among other things, that section reaffirms “the independent and constitutionally and statutorily designated investigative and prosecutorial functions of the sheriff and district attorney of a county.   The board of supervisors shall not obstruct the investigative function of the sheriff of the county nor shall it obstruct the investigative and prosecutorial function of the district attorney of a county.  [¶] Nothing contained herein shall be construed to limit the budgetary authority of the board of supervisors over the district attorney or sheriff.”  (Gov.Code, § 25303, italics added;  see Peters, supra, 68 Cal.App.4th at p. 1175, 80 Cal.Rptr.2d 860.)

As in Pitts, supra, 17 Cal.4th at pages 360-361, 70 Cal.Rptr.2d 823, 949 P.2d 920, Peters acknowledged that other constitutional and statutory provisions tended to support a theory of county agency.   For example, article XI, sections 1, subdivision (b), and 4, subdivision (c), of the state Constitution provide for “an elected sheriff” in each county, and Government Code section 24000 includes sheriffs within the general category of county officers.   But as in Pitts, Peters concluded that these provisions were outweighed by those supporting the argument that sheriffs are not policy makers for the county board of supervisors but are functionally independent of county control when performing their law enforcement functions.  (Peters, supra, 68 Cal.App.4th at pp. 1176-1177, 80 Cal.Rptr.2d 860.)

C. Brewster and Bishop decisions

As indicated above, the Court of Appeal in this case relied on federal Ninth Circuit cases that had reached conclusions seemingly contrary to Pitts and Peters.  (Bishop, supra, 291 F.3d at p. 566;  Brewster, supra, 275 F.3d at pp. 807-808.)   These cases, while purporting to defer to state law as required by McMillian, supra, 520 U.S. at page 786, 117 S.Ct. 1734, nonetheless ultimately took the position that questions regarding section 1983 liability implicate federal law and accordingly were not necessarily controlled by Pitts or Peters.  (See Bishop, supra, 291 F.3d at pp. 562, 564-565 [Pitts factually distinguishable];  Brewster, supra, 275 F.3d at pp. 807, 811 [expressly declining to follow Peters].) Lower federal court decisions such as Brewster and Bishop may be entitled to great weight but they are not binding on this court.   (E.g., People v. Avena (1996) 13 Cal.4th 394, 431, 53 Cal.Rptr.2d 301, 916 P.2d 1000;  People v. Bradley (1969) 1 Cal.3d 80, 86, 81 Cal.Rptr. 457, 460 P.2d 129.)   In any event, having reviewed those federal decisions, we conclude that they erred in failing to follow the guidance given by McMillian, Pitts, and Peters.

1. Brewster-In Brewster, Shasta County and its sheriff’s department allegedly violated the plaintiff’s civil rights during a murder investigation by manipulating a witness into making a false identification, failing to test physical evidence, and ignoring exculpatory evidence.  (Brewster, supra, 275 F.3d at p. 805.)  Brewster concluded that the sheriff was acting as a county agent during the investigation.   The court concentrated on such factors as (1) inclusion of sheriffs as county officers in state Constitution article XI, section 1, subdivision (b), and Government Code section 24000, and (2) county supervision of sheriffs’ activities under Government Code section 25303.  (Brewster, supra, 275 F.3d at pp. 806-808.)   Yet, as we noted above, Pitts and Peters found these factors insufficient to establish a county agency relationship with, respectively, district attorneys and sheriffs when performing law enforcement functions.  (Pitts, supra, 17 Cal.4th at pp. 360-362, 70 Cal.Rptr.2d 823, 949 P.2d 920;  Peters, supra, 68 Cal.App.4th at p. 1176, 80 Cal.Rptr.2d 860.)

Brewster, like Justice Werdegar’s concurring and dissenting opinion herein, also deemed significant the fact that monetary damages assessed against sheriffs for section 1983 claims would be paid by the counties, not the state.  (Brewster, supra, 275 F.3d at pp. 807-808, citing Gov.Code, § 815.2, subd. (a) [vicarious liability of government agencies for employee’s torts].)  Section 815.2, subdivision (a), applies, however, to both the state and counties (Pitts, supra, 17 Cal.4th at p. 360, fn. 7, 70 Cal.Rptr.2d 823, 949 P.2d 920), and although it may provide a general basis for vicarious public liability, significantly subdivision (b) of the section immunizes both the state and county from torts that are committed by employees who are themselves immune.   So, we dispute the present relevance of section 815.2, as it fails to answer the questions whether the sheriff was indeed acting as a county, not state, employee during the events in question, and whether he lacked immunity from federal civil rights actions-the very questions we are attempting to answer here.

In addition, we think the Brewster analysis is faulty for other reasons.   As Brewster earlier acknowledged, if sheriffs indeed are acting as state agents in crime investigations, they would be immune from liability under section 1983 if sued in their official capacity, and their counties would not be liable for their actions.  (Brewster, supra, 275 F.3d at p. 805 [“if [the sheriff] is a policy maker for the state, then the county cannot be liable for his actions”].)

To the extent Brewster was referring to a sheriff’s liability when sued in his personal capacity, we have no occasion here to consider whether the Los Angeles County Sheriff is personally immune under any California statute.   We note, however, that apart from the immunity sheriffs would enjoy while acting as state agents, sheriffs enjoy additional immunities under Government Code section 820.2 (discretionary acts) or section 820.4 (executing or enforcing laws).   Significantly, Pitts discarded a similar argument under section 815.2, subdivision (a), because of the immunity of the district attorney under section 821.6 (instituting or prosecuting an action).  (See Pitts, supra, 17 Cal.4th at p. 360, fn. 7, 70 Cal.Rptr.2d 823, 949 P.2d 920.)

In any event, even assuming California sheriffs lack such immunity, the fact that their counties may be called on to pay any tort damage judgment rendered against their sheriffs sued in their personal capacity is only one of the many factors McMillian requires us to consider.   That single factor, if it truly exists, is outweighed by the constitutional and statutory provisions discussed above, demonstrating that a sheriff represents the state, not the county, when performing law enforcement duties in his official capacity.

The concurring and dissenting opinion of Justice Werdegar suggests that the high court in McMillian found the vicarious liability point “critical” to its holding, but we read the case differently.   What the high court found “critical” was the fact that the Alabama Supreme Court had determined that the framers of the Alabama Constitution took steps to ensure that its sheriffs would be considered executive officers of the state.  (McMillian, supra, 520 U.S. at pp. 788-789, 117 S.Ct. 1734.)   Based on these critical factors, Alabama cases later concluded that sheriffs are state officers so that tort claims against them are deemed suits against the state.  (Id. at p. 789, 117 S.Ct. 1734.)   The analysis in this opinion is consistent with McMillian, for our review of our state’s Constitution and statutes similarly convinces us that sheriffs while performing law enforcement duties are state agents, so that the present suits should be deemed suits against the State of California.

Justice Werdegar relies in part on Hess v. Port Authority Trans-Hudson Corporation (1994) 513 U.S. 30, 48, 115 S.Ct. 394, 130 L.Ed.2d 245, as emphasizing the importance of “the vulnerability of the State’s purse” (conc. & dis. opn., post, at 11 Cal.Rptr.3d p. 718, 87 P.3d at p. 23), but that case did not involve a section 1983 claim but was an action brought under the Federal Employers Liability Act against a multistate port authority, which unsuccessfully sought Eleventh Amendment immunity as a state agent.   Interestingly, Justice Ginsburg wrote Hess, and several years later, she wrote the dissent in McMillian, joined by three other justices.   In the latter case, as Justice Werdegar observes, the majority noted that the state would be liable for tort judgments against an Alabama sheriff.   However, in her dissent in McMillian arguing that sheriffs are county, not state officers, Justice Ginsburg fails even to mention this factor.   Rather, she cites such factors as the inclusion of Alabama sheriffs in the executive department, and impeachment of sheriffs by state officers, and says, “these measures are the strongest supports for the Court’s classification of county sheriffs as state actors.”  (McMillian, supra, 520 U.S. at p. 798, 117 S.Ct. 1734.)

Surely, if payment of tort judgments were indeed the critical factor in determining whether a sheriff was a state officer, Justice Ginsburg, who authored Hess, would have at least mentioned that factor, and indeed would have been required to distinguish it, in her subsequent dissent in McMillian.   Thus, it appears that we are instead instructed by both the majority and the dissenting opinions in McMillian to consider a variety of factors, not simply one, under state law in reaching an “understanding of the actual function of a governmental official, in a particular area.”  (McMillian, supra, 520 U.S. at p. 786, 117 S.Ct. 1734.)

Justice Werdegar’s opinion also asserts that unquestionably a California sheriff is a county employee for purposes of Government Code section 815.2, citing Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, 717, 117 Cal.Rptr. 241, 527 P.2d 865.   But Sullivan was not faced with the question whether such a sheriff might be deemed a state agent for purposes of federal section 1983 civil rights liability, or indeed for any other purpose.   The question simply was not before us in that case.   Thus, section 815.2 seemingly adds nothing helpful to the resolution of the question whether sheriffs are state or county agents.

2. Bishop-In Bishop, supra, 291 F.3d 549, a Native American tribe and its wholly owned gaming corporation sued the County of Inyo, its district attorney, and its sheriff, seeking equitable and monetary relief and alleging these defendants conducted an unlawful records search on tribal property.   The federal appeals court in its now vacated opinion in Bishop concluded that both the district attorney and sheriff were acting as county officers in obtaining and executing an invalid search warrant aimed at uncovering welfare fraud.  (Bishop, supra, 291 F.3d at pp. 562-566.)   As in Brewster, supra, 275 F.3d at pages 806-808, the Bishop court relied on such factors as (1) inclusion of district attorneys and sheriffs as county officers in state Constitution article XI, section 1, subdivision (b), and Government Code  section 24000, and (2) county supervision of the district attorney’s and sheriff’s activities under Government Code section 25303.  (Bishop, supra, at pp. 563-564.)   As we noted above, Pitts and Peters deemed these factors insufficient to establish a county agency relationship with, respectively, district attorneys and sheriffs when performing law enforcement activities.  (Pitts, supra, 17 Cal.4th at pp. 360-362, 70 Cal.Rptr.2d 823, 949 P.2d 920;  Peters, supra, 68 Cal.App.4th at p. 1176, 80 Cal.Rptr.2d 860.)

Acknowledging the constitutional and statutory supervisory authority of the state Attorney General over district attorneys and sheriffs in their law enforcement functions, bishop nonetheless expressed concern that “to allow the Attorney General’s supervisory role to be dispositive ․ would prove too much,” for “if taken to its logical extreme, all local law enforcement agencies in California would be immune from prosecution for civil rights violation,” contrary to Monell’s holding (Monell, supra, 436 U.S. at pp. 690-692, 98 S.Ct. 2018) preserving section 1983 actions against local agencies.  (Bishop, supra, 291 F.3d at p. 564.)   To the contrary, merely because the sheriff is a state officer, as demonstrated by the foregoing constitutional and statutory provisions, does not mean that all local law enforcement officers are also to be deemed state officers.

Pitts and Peters are clearly confined, respectively, to situations in which district attorneys and sheriffs are actually engaged in performing law enforcement duties, such as investigating and prosecuting crime, or training staff and developing policy involving such matters.  (See Pitts, supra, 17 Cal.4th at p. 366, 70 Cal.Rptr.2d 823, 949 P.2d 920;  Peters, supra, 68 Cal.App.4th at p. 1172, 80 Cal.Rptr.2d 860.)   Immunizing these persons when actually engaged in such activities would not violate Monell’s broad refusal to find all local agencies immune from suit under section 1983.   Other torts or civil rights violations by these and other local officers might well be deemed acts committed by county agents, for which they and their counties could be responsible.   As Peters states, “This determination does not require an ‘all-or-nothing’ categorization applying to every type of conduct in which the official may engage.   Rather, the issue is whether the official is a local policymaker with regard to the particular action alleged to have deprived the plaintiff of civil rights.  [Citations.]”  (Peters, supra, at p. 1172, 80 Cal.Rptr.2d 860.)

Moreover, Bishop’s analysis appears to express a policy concern (overly broad immunity from suit) that is extraneous to the high court’s factor-balancing test employed in McMillian, supra, 520 U.S. at pages 786, 790-791, 117 S.Ct. 1734, a test that, as Brewster acknowledged, requires a weighing of the state’s Constitution, statutes, and case law.  (Brewster, supra, 275 F.3d at p. 806.)

Bishop also stressed the fact that the search warrant at issue there sought to disclose evidence of welfare fraud, a matter falling within the jurisdiction of  the county’s health and human services department.  (Bishop, supra, 291 F.3d at p. 565.)   The fact remains, however, that welfare fraud is a state offense (e.g., Welf. & Inst.Code, §§ 11482-11483).   Attempting to distinguish Pitts, supra, 17 Cal.4th 340, 70 Cal.Rptr.2d 823, 949 P.2d 920, the Bishop court observed that Pitts involved prosecutorial conduct, whereas Bishop concerned investigating possible welfare fraud in advance of prosecution.  (Bishop, supra, at pp. 564-565.)   But nothing in Pitts supports such a fine distinction.   Indeed, Pitts’s precise holding was that a district attorney “is a state official when preparing to prosecute and when prosecuting criminal violations of state law.”  (Pitts, supra, at p. 360, 70 Cal.Rptr.2d 823, 949 P.2d 920, italics added.)   It is noteworthy that the plaintiffs in Pitts had alleged misconduct (procuring false witness statements and failing to provide adequate training procedures) squarely falling in the preprosecution category.  (Id. at p. 352, 70 Cal.Rptr.2d 823, 949 P.2d 920.)

3. Conclusion-In short, we are unconvinced that either Brewster or Bishop affords cogent reasons for ruling that in California, sheriffs act as county officers in performing their law enforcement activities.   We conclude that, following the analysis prescribed in McMillian, Pitts and Peters, California sheriffs act as state officers while performing state law enforcement duties such as investigating possible criminal activity.

Plaintiffs assert that even if the sheriff acted as a state agent in this case, County’s other agents and employees played such a significant role in the events as to justify its liability.   The limited issue before us, however, involves the potential liability of the County for the acts of its sheriff.   The question of the County’s liability for the acts of other persons is not before us.

We conclude the trial court properly sustained the demurrers of County, its sheriff’s department, and its sheriff to plaintiffs’ civil rights action under section 1983.

III. Qualified Immunity of Sheriff’s Deputies Under Section 1983

As McMillian explains, the rule exempting the state and its officers from liability under section 1983 applies to officers such as sheriffs only if they were acting as state agents with final policymaking authority over the complained-of actions.  (McMillian, supra, 520 U.S. at pp. 784-785, 117 S.Ct. 1734.)   Accordingly, the parties in this case have correctly assumed that the sheriff’s deputies would not be shielded by the sheriff’s own state agent immunity, and are “persons” who may be held liable for damages under section 1983 for violating someone’s constitutional rights.   County, however, argues these deputies were entitled to qualified immunity under section 1983 because reasonable officers in their position would have believed their actions were lawful under established law.  (See Saucier v. Katz (2001) 533 U.S. 194,  201-202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (Saucier );  Hunter v. Bryant (1991) 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589.)   Because this issue is primarily a factual one once the correct legal principles are identified, and the factual record is extensive, we will remand the case to the Court of Appeal for a redetermination of the issue.

Saucier furnishes adequate guidance as to the controlling principles.   A rule of qualified immunity shields a public officer from an action for damages under section 1983 unless the officer has violated a “clearly established” constitutional right.  (Saucier, supra, 533 U.S. at p. 201, 121 S.Ct. 2151.)   As stated in Saucier, “The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. [Citation.]”  (Id. at p. 202, 121 S.Ct. 2151.)   The high court explained that “[i]f the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate.”  (Ibid.) Saucier confirmed that, despite a possible Fourth Amendment violation, officers still must be granted immunity “for reasonable mistakes as to the legality of their actions.”  (Id. at p. 206, 121 S.Ct. 2151.)

The plaintiff in Saucier brought a section 1983 action against police officers, alleging that they used excessive force in arresting him.   At issue was whether the immunity analysis was so intertwined with the question of excessive force that the qualified immunity and constitutional violation issues should be treated as one question, to be decided by the trier of fact.   The Ninth Circuit Court of Appeals held that the inquiries merged into a single question for the jury.   The United States Supreme Court reversed, holding that the ruling on qualified immunity required an analysis separate from the question whether unreasonable force was used in making the arrest.   (Saucier, supra, 533 U.S. at p. 199, 121 S.Ct. 2151.)  Saucier set forth the following framework for ruling on a claim of qualified immunity:  First, accepting the plaintiff’s allegations as true, was a constitutional right violated?   If so, was the right so well established that it would be clear to a reasonable officer that his conduct was unlawful in the circumstances?   (Ibid.)

Thus, Saucier makes clear that a ruling on qualified immunity requires an analysis separate from the question whether a constitutional violation occurred.   Yet, the Court of Appeal in this case appeared to assume that a bare showing of possible constitutional rights violations would be sufficient to avoid defendants’ motion for nonsuit.   The court phrased the relevant inquiry as simply whether the evidence, viewed in plaintiffs’ favor, “support[ed] a determination that respondents’ conduct violated a federal right under the Fourth Amendment,” and proceeded to find sufficient evidence to support such a violation.   This analysis seemingly ignores Saucier and its emphasis on  whether a reasonable officer would believe his conduct clearly unlawful.   Without such a finding, defendant deputies would be immune from a section 1983 action.   Significantly, the Court of Appeal opinion failed to cite Saucier, which was decided only a few months earlier.

Here, as the Court of Appeal noted, the trial court in granting nonsuit expressly found that the officers “acted reasonably by any objective standard.”   The briefs before us argue at length as to whether or not the record supports that finding.   Given the Court of Appeal’s failure to consider Saucier and review the evidence with the Saucier principles in mind, it is appropriate that the Court of Appeal reconsider this primarily factual issue.

IV. Liability of County and its Sheriff Under Civil Code Section 52.1

Finally, County argues that the Court of Appeal erred in concluding plaintiffs could state a cause of action against County, its sheriff’s department and its sheriff, under Civil Code section 52.1, for unreasonable search and seizure.   According to County, the section applies only to so-called hate crimes and requires a showing, not alleged here, that the defendants acted with “discriminatory animus,” i.e., an intent to threaten or coerce another in violation of their constitutional rights, based on the victim’s actual or apparent racial, ethnic, religious, or sexual orientation or other minority status.  (See, e.g., In re Michael M. (2001) 86 Cal.App.4th 718, 725-726, 104 Cal.Rptr.2d 10 [describing the intent element underlying hate crime legislation].)   We disagree, as nothing in Civil Code section 52.1 requires any showing of actual intent to discriminate.

Civil Code section 52.1, subdivision (a), provides that if a person interferes, or attempts to interfere, by threats, intimidation, or coercion, with the exercise or enjoyment of the constitutional or statutory rights of “any individual or individuals,” the Attorney General, or any district or city attorney, may bring a civil action for equitable or injunctive relief.   Subdivision (b) allows “[a]ny individual” so interfered with to sue for damages.   Subdivision (g) states that an action brought under section 52.1 is “independent of any other action, remedy, or procedure that may be available to an aggrieved individual under any other provision of law,” including Civil Code section 51.7.

Civil Code section 51.7, a separate and independent enactment referred to in section 52.1, declares that all persons have the right to be free from violence or intimidation because of their race, color, religion, ancestry, national origin, political affiliation, sex, sexual orientation, age, disability, or position in a labor dispute, or because they are perceived by another to have  any of these characteristics.   Section 52, subdivision (b), makes persons who violate section 51.7 liable for actual and exemplary damages and penalties.

Boccato v. City of Hermosa Beach (1994) 29 Cal.App.4th 1797, 1809, 35 Cal.Rptr.2d 282, concluded that a plaintiff who brings an action under Civil Code section 52.1 must be a member of one of the classes protected by Civil Code section 51.7.   Thereafter, in 2000, after the events giving rise to this action, the Legislature enacted Assembly Bill No. 2719 (1999-2000 Reg. Sess.) (hereafter Assembly Bill 2719) to explain that Boccato erred in that assumption, and to clarify that Civil Code section 52.1 applies to an affected plaintiff “without regard to his or her membership in a protected class identified by its race, color, religion, or sex, among other things.”   (Stats.2000, ch. 98, § 1.)

The Court of Appeal in the present case determined that the trial court, relying on Boccato’s erroneous interpretation of the statute, improperly sustained demurrers without leave to amend to plaintiffs’ cause of action under Civil Code section 52.1.   The appellate court recognized that the pronouncements in 2000 of legislative intent did not apply in this case, but based on its independent interpretation of the statute, the court rejected Boccato and determined that Civil Code section 52.1 did not, in 1998, require a plaintiff to be a member of a protected class.

County evidently agrees with the Court of Appeal’s analysis in this respect, as it does not presently rely on Boccato, which indeed seems inconsistent with the statutory language of Civil Code section 52.1, subdivision (b), allowing “[a]ny individual ” (italics added) whose exercise or enjoyment of constitutional or statutory rights has been interfered with to sue the perpetrator for damages.   Had the Legislature intended to limit the scope of section 52.1 to individuals protected under section 51.7, it could easily have done so.

Instead of asserting that Boccato controls, County narrowly reads Assembly Bill 2719 as clarifying that a person can state a cause of action under Civil Code section 52.1 only if he or she is the victim of intimidation or interference based on an actual or perceived class or characteristic protected under section 51.7.   We see no reasonable basis for such an interpretation.   Assembly Bill 2719 explained that “[s]ection 52.1 of the Civil Code guarantees the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state without regard to his or her membership in a protected class identified by its race, color, religion, or sex, among other things.”  (Italics added.)   We cannot reasonably interpret this language, or the unambiguous language of section 52.1 itself, to restrict the benefits of the section to persons who are actual or perceived members of a  protected class.   Such an interpretation could have anomalous results, permitting or disallowing recovery based solely on the defendant’s perceptions of the plaintiff’s protected status.

In Jones v. Kmart Corp. (1998) 17 Cal.4th 329, 338, 70 Cal.Rptr.2d 844, 949 P.2d 941, we acknowledged that Civil Code section 52.1 was adopted “to stem a tide of hate crimes.”   But contrary to County’s position, our statement did not suggest that section 52.1 was limited to such crimes, or required plaintiffs to demonstrate that County or its officers had a discriminatory purpose in harassing them, that is, that they committed an actual hate crime.   We continued in Jones by simply observing that the language of section 52.1 provides remedies for “certain misconduct that interferes with” federal or state laws, if accompanied by threats, intimidation, or coercion, and whether or not state action is involved.  (Jones, supra, at p. 338, 70 Cal.Rptr.2d 844, 949 P.2d 941.)   Plaintiffs have alleged such misconduct here.

County predicts that allowing unrestricted civil actions under Civil Code section 52.1 will result in “an incalculable increase in the filing of lawsuits in our State’s courts,” imposing heavy burdens on “the already financially-strapped court system․” County observes that if section 52.1 indeed applied to all tort actions, the section would provide plaintiffs in such cases significant civil penalties and attorney fees as well as compensatory damages.

First, Civil Code section 52.1 does not extend to all ordinary tort actions because its provisions are limited to threats, intimidation, or coercion that interferes with a constitutional or statutory right.   Second, imposing added limitations on the scope of section 52.1 would appear to be more a legislative concern than a judicial one, and perhaps the Legislature would be advised to reexamine the matter.   But we need not decide here whether section 52.1 affords protections to every tort claimant, for plaintiffs in this case have alleged unconstitutional search and seizure violations extending far beyond ordinary tort claims.   All we decide here is that, in pursuing relief for those constitutional violations under section 52.1, plaintiffs need not allege that defendants acted with discriminatory animus or intent, so long as those acts were accompanied by the requisite threats, intimidation, or coercion.   The Court of Appeal was correct in holding that plaintiffs adequately stated a cause of action under section 52.1.

V. Conclusion

The judgment of the Court of Appeal is reversed as to plaintiffs’ asserted causes of action under 42 United States Code section 1983, and we remand to that court for its redetermination of the qualified immunity issue in light of our opinion.   The Court of Appeal’s judgment sustaining plaintiffs’ causes of action under Civil Code section 52.1 is affirmed.

I concur in the majority opinion’s conclusion that the Los Angeles County Sheriff acted as an agent of the state in undertaking the criminal investigation in this case, and that under Eleventh Amendment sovereign immunity principles, the sheriff was immune from prosecution for the asserted violations of the Federal Civil Rights Act of 1871 (42 U.S.C. § 1983 (section 1983)).  (Majority opn. of Chin, J., ante, pt. II.) I further concur in the majority opinion’s discussion of the qualified immunity defense that may be available to the sheriff’s deputies with regard to those same section 1983 claims.  (Majority opn., ante, pt. III.)

With considerably less enthusiasm, I also join in the majority opinion’s determination that, given the unambiguous language of subdivision (g) of Civil Code section 52.1 (section 52.1), plaintiffs adequately pleaded a cause of action “for unreasonable search and seizure” under that section notwithstanding their failure to allege that defendants acted with intent to discriminate, also commonly referred to as discriminatory animus.  (Majority opn., ante, pt. IV.) I write separately to voice my concern that the Legislature, in amending section 52.1 by adding subdivision (g) in response to the Court of Appeal decision in Boccato v. City of Hermosa Beach (1994) 29 Cal.App.4th 1797, 1809, 35 Cal.Rptr.2d 282 (Boccato ), might have inadvertently transformed section 52.1 from its originally intended purpose as a weapon in the arsenal of interrelated statutory provisions designed to combat the rising incidence of hate crimes, to a generally applicable catchall provision that will encourage claimants to seek section 52.1’s sweeping remedies-including compensatory money damages, very substantial fines ($25,000), attorney fees, and other equitable relief-in commonplace tort actions to which those special statutory remedies were never intended to apply.   As Los Angeles County (County) urges, to give effect to the literal language of section 52.1, subdivision (g) could result in an incalculable increase in the filing of lawsuits in our State’s courts and impose an inordinately heavy burden on our already financially strapped court system.

As will be explained, because the language of section 52.1 as amended through the addition of subdivision (g) is unambiguous, this court must dutifully construe it according to the plain import of its express terms.   It is ultimately within the Legislature’s purview to determine if section 52.1, as amended, accurately effectuates the purpose and intent behind this antidiscrimination legislation, or whether the literal language of the amended statutory scheme now paints with far too broad a brush.   I believe the Legislature would be well advised to reexamine the matter, and for that purpose, I offer the following brief survey of relevant legislative history and decisions of this and other courts to demonstrate that section 52.1 has always  been understood as the anti-hate crime tool it was originally intended to be, and that the section has also long been understood as requiring that one charged with a violation of its letter and spirit must be shown to have acted with discriminatory intent.

I

The legislative history of section 52.1 clearly reflects that it was originally enacted “to stem a tide of hate crimes.”  (Jones v. Kmart Corp. (1998) 17 Cal.4th 329, 338, 70 Cal.Rptr.2d 844, 949 P.2d 941.)   Nearly every court which has construed this statute has recognized that in light of its original purpose-to combat hate crimes-a violation of section 52.1 requires a showing that the defendant acted with discriminatory animus, i.e., an intent to interfere “by threats, intimidation, or coercion” (§ 52.1, subd. (a)) with the victim’s exercise or enjoyment of his or her constitutional or statutory rights, based on the victim’s actual or perceived racial, ethnic, religious, or sexual orientation or other minority status.  (See, e.g., In re Michael M. (2001) 86 Cal.App.4th 718, 725-726, 104 Cal.Rptr.2d 10 [defining requisite intent for hate crimes].)

Section 52.1, commonly referred to as the “Tom Bane Civil Rights Act” or the “Bane Act,” was enacted in 1987 as part of a renewed effort to combat the disturbing rise in “hate crimes,” or, put otherwise, the rising incidence of civil rights violations motivated by hatred and discrimination.   This purpose of the legislation is undeniably evidenced by both its legislative history and the case law interpreting it, including several decisions of this court.

The Legislature’s focused effort to combat discriminatory and pernicious conduct often referred to as hate crimes began with the 1976 enactment of Civil Code section 51.7, commonly referred to as the “Ralph Civil Rights Act” or the “Ralph Act.” That legislation provides, in pertinent part:  “All persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of their race, color, religion, ancestry, national origin, political affiliation, sex, sexual orientation, age, disability, or position in a labor dispute, or because another person perceives them to have one or more of those characteristics ․” (§ 51.7, subd. (a).)  The obvious purpose of the Ralph Act is to declare unlawful, and civilly actionable, any acts of violence or intimidation by threats of violence directed against any individual because of his actual or perceived membership in a minority or similarly protected class.

It is particularly noteworthy that the enumerated list of protected classes of persons found in the Ralph Act was never intended to be exclusive.  Section 51.7 expressly provides that, “The identification in this subdivision of  particular bases of discrimination is illustrative rather than restrictive.” (§ 51.7, subd. (a), italics added.)

In this same vein, 10 years later, the Legislature enacted section 52.1 to further address the rising tide of hate crimes in California.   As originally enacted, the core provisions of section 52.1 read:

“(a) Whenever a person or persons, whether or not acting under color of law, interferes by threats, intimidation, or coercion, ․ with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state, the Attorney General, or any district attorney or city attorney may bring a civil action for injunctive and other appropriate equitable relief in the name of the people of the State of California, in order to protect the peaceable exercise or enjoyment of the right or rights secured.

“(b) Any individual whose exercise or enjoyment of rights secured by the Constitution or laws of the United States, or of rights secured by the Constitution or laws of this state, has been interfered with, or attempted to be interfered with, as described in subdivision (a), may institute and prosecute in his or her name and on his or her own behalf a civil action for injunctive and other appropriate equitable relief to protect the peaceable exercise or enjoyment of the right or rights secured.”  (Added by Stats.1987, ch. 1277, § 3, p. 4544, italics added.)

These central provisions of the Bane Act have not been substantively changed since its enactment nearly 20 years ago.   Amendments since 1987 added new penalty provisions ($25,000) which may be sought in both public and private actions under the act.   Of particular interest here, subdivision (g) of section 52.1 was added by amendment in response to the Court of Appeal’s holding in Boccato, supra, 29 Cal.App.4th 1797, 1809, 35 Cal.Rptr.2d 282.   Subdivision (g) declares that an action brought under section 52.1 is “independent of any other action, remedy, or procedure that may be available to an aggrieved individual under any other provision of law, including, but not limited to, an action, remedy, or procedure brought pursuant to Section 51.7 [the Ralph Act].”

From its inception, the Bane Act’s purpose has been to specifically target unlawful conduct motivated by discriminatory animus that interferes with the victim’s enjoyment of statutory or constitutional civil rights.   The report on Assembly Bill No. 63 (1987-1988 Reg. Sess.) by the Senate Rules Committee, 1987-1988 Regular Session (Senate Report), identifies as the “key issue” in the enactment of the Bane Act whether there should be “additional civil  and criminal penalties for crimes [¹ ] which are committed because of the victim’s racial, ethnic, religious, sexual orientation or other minority status?”  (Sen.Rep., supra, p. 1.)

The Senate Report explained further that under the then current law, i.e., the Ralph Act, quoted above, hate crimes perpetrated through acts of violence or threats of violence were subject to considerably expanded civil penalties.   (Sen.Rep., p. 2.) However, due to the inadequacy of that law and the rise in hate crimes, the stated purpose of the Bane Act was to subject “the use of force or threats to interfere with the free exercise of one’s constitutional rights” (Sen.Rep., pp. 2-3), based on the victim’s membership or perceived membership in one of the enumerated protected classes, to both civil and criminal remedies.   In other words, what the Bane Act did at its inception was to add “threats, intimidation or coercion” to the already proscribed “violence, or threats of violence” sanctioned under the Ralph Act, where any such conduct interferes with or attempts to interfere with the statutory and constitutional rights of persons in minority or similarly protected classes, or who were perceived by the defendant to be members of such protected classes.

I agree with County’s observation that the motivation behind the Bane Act was neither expressly nor indirectly linked to any dramatic rise in the violation of federal and state civil rights in general, and that the enactment of the statute was clearly driven by the rise in violations of such rights motivated by hate and discriminatory animus.   That a violation of the Bane Act was originally envisioned as being circumscribed by the requirement that the defendant be shown to have acted with discriminatory intent has been repeatedly recognized in both this court’s decisions and numerous decisions of the Courts of Appeal that have construed section 52.1.

We effectively acknowledged this circumscribed purpose and scope of the legislation in Jones v. Kmart Corp., supra, 17 Cal.4th 329, 70 Cal.Rptr.2d 844, 949 P.2d 941, wherein we observed:  “The Legislature enacted section 52.1 to stem a tide of hate crimes.  [Citation.]  The statutory language fulfills that purpose by providing remedies for certain misconduct that interferes with any ‘right[ ] secured by the Constitution or laws of the United States, or ․ of this state․’ ” (Id. at p. 338, 70 Cal.Rptr.2d 844, 949 P.2d 941, italics added.)

Similarly, in In re M.S. (1995) 10 Cal.4th 698, 42 Cal.Rptr.2d 355, 896 P.2d 1365, we observed that the Bane Act was “enacted by the Legislature ․ in response to the alarming escalation in the incidence of hate crimes in  California and the inadequacy of existing laws to deter and punish them.”  (Id. at pp. 706-707, fn. 1, 42 Cal.Rptr.2d 355, 896 P.2d 1365.) The issue in In re M.S. involved two Penal Code provisions (Pen.Code, §§ 422.6, 422.7) which, like their civil counterpart, section 52.1, were also enacted by the Bane Act. It is significant that each of those Penal Code sections is a criminal hate crime provision, and that each requires a showing that the violator acted with unlawful discriminatory intent insofar as victims under those sections must belong to, or be perceived by the defendant as belonging to, a minority or similarly protected class.

Likewise, the Court of Appeal in In re Michael M., supra, 86 Cal.App.4th 718, 104 Cal.Rptr.2d 10, recognized that “The Bane Act and related California statutes dealing with discriminatory threats and violence are California’s response to the alarming increase in hate crimes.”  (Id. at p. 725, 104 Cal.Rptr.2d 10, italics added, fn. omitted.)   The court explained that “In urging gubernatorial approval of the Bane Act, its author referred to a report issued by the Los Angeles County Commission on Human Relations noting the increase of acts of racial violence and religious incidents in Los Angeles County during 1986 and stated that the Bane Act ‘addresses this problem.’ ”   (Ibid., italics added.)   And the court concluded that “the principal thrust of the statute is toward preventing the intimidation of a victim ․, when the intimidation or interference is based on the victim’s actual or perceived protected characteristic.”  (Id. at p. 726, 104 Cal.Rptr.2d 10, italics added;  see also McMahon v. Albany School District (2002) 104 Cal.App.4th 1275, 1294, 129 Cal.Rptr.2d 184 [“Civil Code sections 52 and 52.1, along with other statutes, were enacted in a coordinated effort to combat hate crimes”];  In re Joshua H. (1993) 13 Cal.App.4th 1734, 1748, fn. 9, 17 Cal.Rptr.2d 291 [“The Bane Act and related California statutes deal[ ] with discriminatory threats and violence” (italics added) ];  Bay Area Rapid Transit Dist. v. Superior Court (1995) 38 Cal.App.4th 141, 144, 44 Cal.Rptr.2d 887 [Bane Act “provides for a personal cause of action for the victim of a hate crime ” (second italics added) ].)

In short, both the legislative history of section 52.1 and the manner in which the core purpose of that antidiscrimination statute has been viewed by this and other courts, since the time of its enactment, support a conclusion that intent to discriminate has long been understood as a required element of a section 52.1 violation, thereby justifying a plaintiff’s eligibility for the hate crime provision’s greatly expanded remedies.

II

The Court of Appeal in Boccato, supra, 29 Cal.App.4th 1797, 1809, 35 Cal.Rptr.2d 282, concluded that a plaintiff who brings an action under Civil Code section 52.1 (the Bane Act) must be a member of one of the classes protected by Civil Code section 51.7 (the Ralph Act).   Thereafter, in 2000, the Legislature enacted Assembly  Bill No. 2719 (1999-2000 Reg. Sess.) (hereafter Assembly Bill 2719) to explain that Boccato erred in that assumption, and to clarify that Civil Code section 52.1 applies to an affected plaintiff “without regard to his or her membership in a protected class identified by its race, color, religion, or sex, among other things.”   (Stats.2000, ch. 98, § 1.)

The majority opinion observes that “Assembly Bill 2719 explained that ‘[s]ection 52.1 of the Civil Code guarantees the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state without regard to his or her membership in a protected class identified by its race, color, religion, or sex, among other things.’  (Italics added.)   We cannot reasonably interpret this language, or the unambiguous language of section 52.1 itself, to restrict the benefits of the section to persons who are actual or perceived members of a protected class.”  (Majority opn., ante, 11 Cal.Rptr.3d at p. 707, 87 P.3d at p. 14.)

I agree that the unambiguous language of section 52.1, as amended by Assembly Bill 2719 through the addition of subdivision (g), does not on its face restrict the benefits of the section to persons who are actual or perceived members of a protected class.   Nor do the findings and declarations made in connection with the enactment of Assembly Bill 2719 suggest that a plaintiff’s membership in such a protected class is a requirement for bringing suit under section 52.1.  (Stats.2000, ch. 98, § 1, subd. (a)(1).)

Boccato’s holding-that a section 52.1 plaintiff must be an actual member of a protected class-was wrong.   Even for a Ralph Act violation (§ 51.7), a plaintiff’s actual membership in a protected class has never been required;  it has always been understood that it is the defendant’s intent and his perception that his victim is a member of a protected class that controls, or, to put it another way, that the defendant be shown to have acted with discriminatory intent whether or not he was factually mistaken as to his victim’s actual status as a member of a protected class.   To the extent a violation of the Bane Act (§ 52.1) has long been understood as requiring the same discriminatory intent as a violation of the Ralph Act, and that it is the actor’s unlawful intent, and not the victim’s actual membership in a protected class, that controls in establishing that requisite intent-it is not surprising that Boccato’s conclusion, that a section 52.1 victim must be an actual member of a protected class, cried out to the Legislature for nullification and correction.

Nonetheless, when one considers the legislative response to Boccato, as reflected in the language of section 52.1, subdivision (g), it is difficult to read that language as conveying anything other than that a defendant sued for a Bane Act violation need not be shown to have acted with discriminatory intent.   Having amended section 52.1 with the chosen language of subdivision (g),  which provides that an action under section 52.1 is “independent of any other action, remedy, or procedure that may be available to an aggrieved individual under any other provision of law, including, but not limited to, an action, remedy, or procedure brought pursuant to section 51.7 [the Ralph Act],” it is hard to escape the conclusion that, under that literal language, a defendant’s alleged violation of the Bane Act no longer need be shown to have been motivated by discriminatory intent.   In short, I conclude the Legislature amended section 52.1 with the intent to nullify and correct Boccato’s holding that a victim must be an actual member of a protected class, but may have inadvertently chosen language that, on its face, can only reasonably be read as providing that defendants alleged to have violated section 52.1 need not be shown to have acted with discriminatory intent.

Since the plain wording of amended section 52.1, on its face, is not reasonably susceptible of any other construction, I am constrained to join in the majority opinion’s conclusion that “in pursuing relief for those constitutional violations under section 52.1, plaintiffs need not allege that defendants acted with discriminatory animus or intent, so long as those acts were accompanied by the requisite threats, intimidation, or coercion.”   (Majority opn., ante, 11 Cal.Rptr.3d at p. 708, 87 P.3d at p. 14.)

The Legislature, of course, is not so constrained.   The Legislature can choose to revisit the matter and reevaluate whether Assembly Bill 2719’s amendment of section 52.1 through the addition of subdivision (g), which now unambiguously distinguishes actions under the Bane Act from actions under the Ralph Act, is no longer faithful to the true purpose and intent to be served by these interrelated antidiscrimination provisions found side by side in the Civil Code.

III

Under section 52.1 as now amended, whenever any person, whether or not acting under color of law, interferes by threats, intimidation, or coercion with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state, a civil action may be brought under its provisions for greatly expanded compensatory damages, substantial fines ($25,000), injunctive and other appropriate equitable relief, as well as attorney fees.

Pragmatically speaking, the limitation in section 52.1 that the right being interfered with under section 52.1 be a right guaranteed by any state or federal law or constitutional provision is hardly a limitation at all.   And although the proscribed conduct is further delineated by the requirement that  it be delivered in the form of a threat, intimidation, or coercion, it should not prove difficult to frame many, if not most, asserted violations of any state or federal statutory or constitutional right, including mere technical statutory violations, as incorporating a threatening, coercive, or intimidating verbal or written component.   Without the further limitation that the violator be shown to have acted with discriminatory intent or animus, as originally intended from the time of the statute’s enactment, section 52.1 will soon come to be widely viewed as a convenient civil litigation tool through which to reach a garden-variety tort defendant’s deep pocket.

When one further considers that under a section 1983 cause of action the defendant must be shown to have acted under color of law, which is not a requirement for proceeding under section 52.1, and also, that under our holding today (applicable to county sheriffs), as well as our prior holding in Pitts v. County of Kern (1998) 17 Cal.4th 340, 348, 70 Cal.Rptr.2d 823, 949 P.2d 920 (applicable to district attorneys), principles of sovereign immunity applicable to section 1983 suits will force many such actions to be brought instead under section 52.1 and similar state statutory counterparts, it is not difficult to envision how the statute will soon come to be abused.

In this time of economic crisis and uncertainty, the construction we are today compelled to place on the unambiguous language of amended section 52.1 could prove crippling to the coffers of local jurisdictions and municipalities.   The Legislature would be well advised to take another careful look at the practical impact its recent amendment of section 52.1 will have on the scope and reach of the section’s greatly expanded remedial provisions.

With the foregoing reservations in mind, I concur in the majority opinion.

This case presents three issues arising from a civil rights action brought by plaintiffs David and Beatriz Venegas against the Los Angeles County Sheriff’s Department, the sheriff, and three of his deputies.   I join the majority in the resolution of two of those issues but not the third.

I.

Evidence at trial established that when plaintiffs were pumping gas into their car, the three deputies stopped them on suspicion of car theft, searched the car, and then went to plaintiffs’ home and searched it.   The deputies arrested David for possessing a car without a visible vehicle identification  number (Pen.Code, § 10751), a misdemeanor.   The district attorney did not file any criminal charge against either plaintiff.

Plaintiffs brought suit, claiming violations of federal and state civil rights laws.   The trial court ruled in favor of defendants, sustaining demurrers to some causes of action and entering nonsuit on others.   The Court of Appeal reversed.   This court reverses in part and affirms in part the judgment of the Court of Appeal, which on remand is to decide whether the sheriff’s deputies have a qualified immunity from liability on plaintiffs’ federal civil rights claims.  (See maj. opn., ante, 11 Cal.Rptr.3d at p. 708, 87 P.3d at p. 14.)   I agree on the remand.

I also agree with the majority that the Court of Appeal correctly reinstated plaintiffs’ actions under Civil Code section 52.1 for interference with statutory or constitutional rights.  (Maj. opn., ante, 11 Cal.Rptr.3d at p. 706, 87 P.3d at p. 13.)   I do, however, share Justice Baxter’s concerns about the potential breadth of the statute.  (Conc. opn. of Baxter, J., ante.)

The third and last issue is this:  Does the Los Angeles County Sheriff act on behalf of the state or the county when performing law enforcement functions?   Reversing the Court of Appeal on this point, the majority holds that in California, a county sheriff acts as a law enforcement officer on behalf of the state, not the county, and thus is absolutely immune from liability in a federal civil rights action.  (See 42 U.S.C., § 1983 (section 1983).)  (Maj. opn., ante, 11 Cal.Rptr.3d at p. 695, 87 P.3d at p. 4.) I disagree.

II.

Section 1983 provides for a damages action against “[e]very person” who, while acting under color of law, subjects another to “the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.”   The federal Constitution’s Eleventh Amendment grants sovereign immunity from such suits not only to each of the 50 states but also to state officers.  (Will v. Michigan Dept. of State Police (1989) 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45.)   This is because a suit against a state officer “is no different from a suit against the State itself.”   (Ibid.) Whether this immunity applies to a particular governmental official is a question of federal law, but the “inquiry is dependent on an analysis of state law.”  (McMillian v. Monroe County (1997) 520 U.S. 781, 786, 117 S.Ct. 1734, 138 L.Ed.2d 1.)

The majority concludes that county sheriffs, when performing law enforcement functions, are state rather than county officers and thus immune from section 1983 lawsuits.  (Maj. opn., ante, 11 Cal.Rptr.3d at p. 695, 87 P.3d at p. 4.) Central to that conclusion is this court’s decision in Pitts v. County of Kern (1998) 17 Cal.4th 340, 345, 70 Cal.Rptr.2d 823, 949 P.2d 920 (Pitts ), in which the majority held that a  county’s district attorney acts on behalf of the state in prosecuting crimes, in establishing policy, and in training prosecutorial staff.   Acknowledging that “Pitts involved district attorneys rather than sheriffs,” the majority here is quick to point out that Pitts “relied on statutes and analysis applying to both kinds of officers” and thus applies with equal force here.  (Maj. opn., ante, 11 Cal.Rptr.3d at pp. 697-698, 87 P.3d at p. 6, italics omitted.)

I agree with the majority that the provisions governing district attorneys and sheriffs are the same.  (See Cal. Const., art. XI [Local Government], §§ 1, subd. (b), 4, subd. (c) [Legislature and county charters shall provide for county officers including “an elected county sheriff [and] an elected district attorney”];  Gov.Code, § 24000 [“The officers of a county are:  [¶] (a) A district attorney [and][¶] (b) A sheriff”].)   Both, in my view, are county officers. In Pitts, I joined Justice Mosk’s dissent.   Relying on the same constitutional and statutory provisions just mentioned, the dissent concluded that a district attorney was an officer of the county.  (Pitts, supra, 17 Cal.4th at p. 366, 70 Cal.Rptr.2d 823, 949 P.2d 920 (dis. opn. of Mosk, J.).)

A brief observation about Justice Werdegar’s concurring and dissenting opinion.   Justice Werdegar joined the majority in Pitts, supra, 17 Cal.4th 340, 70 Cal.Rptr.2d 823, 949 P.2d 920, concluding that district attorneys were state actors immune from section 1983 suit.   But she reaches a contrary conclusion here, concluding as I do that sheriffs exercising their law enforcement functions are county officers.  (Conc. & dis. opn. of Werdegar, J., post, 11 Cal.Rptr.3d at p. 716, 87 P.3d at p. 22.) Justice Werdegar finds significant here that each “California county must pay tort judgments against its sheriff personally for acts in the scope of his or her employment, as well as judgments against the sheriff’s department generally.”  (Id. at p. 719, 87 P.3d at p. 24.)   These obligations derive from Government Code provisions imposing liability on public entity employers, including counties, for their employees’ torts and requiring them to allocate budget provisions for tort judgments.  (Gov.Code, §§ 815.2, 970.8.)   These statutes, however, make no distinction between county sheriffs and district attorneys as employees of a county.   Thus, I cannot join Justice Werdegar’s concurring and dissenting opinion, which relies on these statutes to justify her different legal conclusions about the status of county sheriffs and county district attorneys.

Justice Moreno has signed Justice Werdegar’s separate opinion.   Thus, three members of this court-Justice Werdegar, Justice Moreno, and I-would hold that a California county sheriff is a county officer subject to federal civil rights suit.   This is also the assessment of the United States Court of Appeals for the Ninth Circuit, as expressed in two decisions resolving the exact issue here, whether a sheriff performing law enforcement functions is a state or county officer.  (See Bishop Paiute Tribe v. County of Inyo (9th Cir.2002) 291 F.3d 549, vacated on other grounds and remanded in Inyo County v.  Paiute-Shoshone Indians of the Bishop Cmty. of the Bishop Colony (2003) 538 U.S. 701, 123 S.Ct. 1887, 155 L.Ed.2d 933;  Brewster v. Shasta County (9th Cir.2001) 275 F.3d 803, 807-808.)   The Ninth Circuit has said it is not bound by a state court’s determination that its county sheriffs are state actors because the “[q]uestions regarding section 1983 liability implicate federal, not state, law.”  (Brewster, supra, at p. 811, 123 S.Ct. 75.)

Because the Ninth Circuit considers California sheriffs performing law enforcement functions to be county officers, the majority’s contrary conclusion here creates a split that results in immunizing sheriffs from section 1983 liability in actions brought in state court while exposing them to liability in identical actions filed in federal court.   This effectively drives California civil rights plaintiffs with actions against a county sheriff out of our court system and into federal court.   To ensure uniformity in the enforcement of federal civil rights law in both state and federal courts in California, the United States Supreme Court should decide which view is correct.

Based on my conclusion that a county sheriff exercising law enforcement functions does so for his employing county, I would affirm that part of the Court of Appeal’s judgment reinstating plaintiffs’ section 1983 actions against the Los Angeles County Sheriff and Los Angeles County.

I concur in the majority opinion’s discussion of the deputy sheriffs’ qualified immunity defense (maj. opn., ante, pt. III, at p. 704) and its analysis of liability under Civil Code section 52.1 (maj. opn., ante, pt. IV, at p. 706).   I respectfully dissent from the decision (id., pt. II, at p. 695) as to the immunity of a California sheriff’s office from liability for law enforcement activities under section 1983 (42 U.S.C. § 1983).

The majority opinion’s conclusion on state-agent immunity, that in enforcing the law California sheriffs act under the control and as agents of the State of California, rather than their counties, and thus are not to be considered “persons” subject to official-capacity suits under section 1983, is not without precedent. It draws some support from the high court’s decision in McMillian v. Monroe County (1997) 520 U.S. 781, 117 S.Ct. 1734, 138 L.Ed.2d 1 (McMillian ), which relied prominently on the source of authoritative control in holding Alabama sheriffs were state rather than local officers, as well as this court’s decision in Pitts v. County of Kern (1998) 17 Cal.4th 340, 70 Cal.Rptr.2d 823, 949 P.2d 920, which applied a source-of-control analysis to reach the same conclusion about California district attorneys.

Nevertheless, I believe the better view is that California sheriffs are county officers for purposes of section 1983 liability, even when investigating possible crimes, because any tort judgment against the sheriff’s department  would, as counsel for Los Angeles County (the County) conceded at oral argument, be a liability of the county rather than the state, and the control exercised by the state over sheriffs is not so pervasive and immediate as to overcome this crucial factor.   The immunity of state agents from official-capacity suits under section 1983 derives from the sovereign immunity of states under the common law and the Eleventh Amendment to the United States Constitution;  these sovereign immunities predate section 1983’s enactment, and Congress, in enacting the civil rights law, did not intend to disturb them.  (Will v. Michigan Dept. of State Police (1989) 491 U.S. 58, 66-68, 109 S.Ct. 2304, 105 L.Ed.2d 45 (Will ).)   And while the degree of state control is a relevant factor under the Eleventh Amendment, it is not dispositive;  rather, “the vulnerability of the State’s purse” has been recognized as “the most salient factor in Eleventh Amendment determinations.”   (Hess v. Port Authority Trans-Hudson Corporation (1994) 513 U.S. 30, 48, 115 S.Ct. 394, 130 L.Ed.2d 245 (Hess ).)   The present suit for damages under section 1983 against the Los Angeles County Sheriff in his official capacity threatens neither the state’s sovereign dignity nor its treasury;  hence, it should not be barred under Will. Moreover, as explained in part II, post, this conclusion is consistent with the high court’s most recent discussion of section 1983 state-agent immunity, in McMillian.

Today’s decision creates a direct conflict between this court and the federal Court of Appeals on the immunity of California sheriffs from liability on a federal cause of action.  (See Brewster v. Shasta County (9th Cir.2001) 275 F.3d 803.)   Both positions have some support in precedent and logic, suggesting that the anomaly of conflicting decisions is likely to endure until resolved by a higher authority.   Although dependent on an understanding of sheriffs’ functions under state law, immunity from section 1983 liability is of course a federal question.  (McMillian, supra, 520 U.S. at p. 786, 117 S.Ct. 1734.)   The conflict created today can, therefore, be resolved effectively only by the United States Supreme Court.

I

Will, supra, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45, in which the high court first articulated the distinction between state immunity and local government liability at issue here, establishes a close organic link between that distinction and the doctrine of state sovereign immunity.   As the court explained, Congress enacted the 1871 Civil Rights Act, of which section 1983’s predecessor was a part, against a background of state immunity to damages suits under the Eleventh Amendment (for suits in federal courts) and common law sovereign immunity (for suits in state courts).   From language, legislative history, and interpretive precedent the high court concluded that “Congress, in passing § 1983, had no intention to disturb the States’ EEleventh Amendment immunity” (Will, supra, at p. 66, 109 S.Ct. 2304) or to “ disregard the well-established [common law] immunity of a State from being sued without its consent” (id. at p. 67, 109 S.Ct. 2304).   Moreover, because a suit against a state official in his or her official capacity is “a suit against the official’s office,” the Will court extended immunity under section 1983 to such actions, holding “neither a State nor its officials acting in their official capacity are ‘persons’ under § 1983.”  (Will, supra, at p. 71, 109 S.Ct. 2304.)

Official-capacity suits seeking only injunctive relief against state officials, on the other hand, are not considered actions against the state under section 1983, as they likewise would not be under traditional sovereign immunity doctrine.  (Will, supra, 491 U.S. at p. 71, fn. 10, 109 S.Ct. 2304.)   Most pertinent here, the Will court explained that state-agent immunity under section 1983 is not inconsistent with the municipal liability previously recognized in Monell v. New York City Dept. of Social Services (1978) 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (Monell ), because “by the time of the enactment of § 1983, municipalities no longer retained the sovereign immunity they had shared with the states.”  (Will, supra, at p. 67, fn. 7, 109 S.Ct. 2304.) Just as Monell limited municipal liability to entities that “are not considered part of the State for Eleventh Amendment purposes” (Monell, supra, at p. 690, fn. 54, 98 S.Ct. 2018), so the immunity holding in Will “does not cast any doubt on Monell, and applies only to States or governmental entities that are considered ‘arms of the State’ for Eleventh Amendment purposes.”  (Will, supra, at p. 70, 109 S.Ct. 2304.)

The immunity recognized in Will thus bars only section 1983 suits seeking money damages from a state, which are barred under the Eleventh Amendment if brought in federal court.  (See also Alden v. Maine (1999) 527 U.S. 706, 756-757, 119 S.Ct. 2240, 144 L.Ed.2d 636 [sovereign immunity generally does not extend to municipalities, or to injunctive relief and personal-capacity actions against state officials, for in those cases “relief is not sought from the state treasury”].)   Thus, in deciding whether a government official sued in his or her official capacity under section 1983 enjoys state-agent immunity, as in deciding directly under the Eleventh Amendment whether the office is an arm of the state, the court’s primary consideration should be whether or not the state is obligated to pay the office’s liabilities.

In Hess, supra, 513 U.S. 30, 115 S.Ct. 394, 130 L.Ed.2d 245, in holding that the Port Authority of New York and New Jersey, an entity created by compact between those two states, was not an arm of either for Eleventh Amendment purposes, the high court relied primarily on the Port Authority’s financial independence, rather than on the states’ control or lack thereof over it.   Although an examination of how the office is controlled can be helpful to the overall inquiry, “rendering control dispositive does not home in on the impetus for the Eleventh Amendment:  the prevention of federal-court judgments that must be paid out of a State’s treasury.”  (Hess, supra, at p. 48, 115 S.Ct. 394.)   The high court considered “the vulnerability  of the State’s purse [to be] the most salient factor in Eleventh Amendment determinations.”  (Ibid. [citing extensive list of lower court decisions to same effect];  Regents of the Univ. of California v. Doe (1997) 519 U.S. 425, 429, 117 S.Ct. 900, 137 L.Ed.2d 55 [11th Amend. immunity applies “ ‘when the action is in essence one for the recovery of money from the state’ ”];  Lake Country Estates, Inc. v. Tahoe Planning Agency (1979) 440 U.S. 391, 401, 99 S.Ct. 1171, 59 L.Ed.2d 401 [“some agencies exercising state power have been permitted to invoke the Amendment in order to protect the state treasury from liability”];  Quern v. Jordan (1979) 440 U.S. 332, 338, 99 S.Ct. 1139, 59 L.Ed.2d 358 [11th Amend. forbids “ ‘retroactive award which requires the payment of funds from the state treasury’ ”];  Streit v. County of Los Angeles (9th Cir.2001) 236 F.3d 552, 567 [potential liability of state is “most important factor in identifying an arm of the state”].)   Thus, in determining whether a California sheriff’s office is an arm of the state for Eleventh Amendment purposes (and therefore immune from section 1983 liability in state court, as well), we must look to whether a judgment against the sheriff’s office potentially threatens California’s treasury.   An examination of the laws governing the Los Angeles Sheriff’s Department shows a judgment against it does not have that potential.

California law defines sheriffs as elected officers of the county. (Cal. Const., art.   XI [Local Government], §§ 1, subd. (b), 4, subd. (c) [Legislature and county charters shall provide for county officers including “an elected county sheriff”];  Gov.Code, § 24000 [“The officers of a county are:  ․ (b) A sheriff”].)   The Los Angeles County Charter (art. IV, § 12) similarly lists the sheriff as one of the “elective County officers.”

In addition, a California sheriff’s office is funded by the county, even as to enforcement of state criminal laws.  (Gov.Code, §§ 25300 [county board of supervisors sets compensation of county officers and employees], 29430, 29435 [county required to appropriate special fund for sheriff’s law enforcement activities], 29601, subd. (b)(1) [sheriff’s expenses incurred in “ the detection of crime” are county charges];  Los Angeles County Code, ch. 4.12 [board of supervisors sets budget for all departments and offices].)

Finally and most significantly, a California county must pay tort judgments against its sheriff personally for acts in the scope of his or her employment, as well as judgments against the sheriff’s department generally.  (See Gov.Code, §§ 815.2 [public employer liable in respondeat superior for torts of employees], 970.8 [public entity required to make provision in its budget to pay judgments];  Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, 717, 117 Cal.Rptr. 241, 527 P.2d 865 [sheriff is county employee for purposes of Gov.Code, § 815.2].) Indeed, as noted earlier, the County concedes as much.   While the state may help to fund certain activities of the sheriff’s department,  the parties have not cited, nor have I discovered, any provision of California law that would make the state legally responsible for a judgment against the Sheriff of Los Angeles County in his official capacity.

Viewing the “potential legal liability” of the state as “an indicator of the relationship between the State and its creation” (Regents of the Univ. of California v. Doe, supra, 519 U.S. at p. 431, 117 S.Ct. 900), California law thus clearly regards a sheriff’s office not as an arm of the state but, rather, as a department of the county government.   The existence of some degree of state control over sheriffs should not change this assessment.   The majority opinion relies on the general supervisory authority the California Attorney General enjoys over sheriffs (Cal. Const., art. V, § 13), which includes the power to appoint a person “to perform the duties of sheriff with respect to the investigation or detection of a particular crime” (Gov.Code, § 12561).   How often, if ever, this theoretical power is exercised is unclear, but in the vast majority of cases sheriffs appear to retain wide autonomy (restrained of course by general state law) over formulation of law enforcement policies and their implementation.

In Roe v. County of Lake (N.D.Cal.2000) 107 F.Supp.2d 1146, 1151, footnote 13, the district court, expressing skepticism regarding the real degree of Attorney General supervision, noted that “[a]lthough county sheriffs have been frequently sued for civil rights violations in federal court, I have found no regulations which enable the Attorney General to prohibit or remedy such violations and have found no reported case in which the Attorney General has attempted to do so.”   Nor, in this case, has the County directed us to any such regulations or instance of the Attorney General’s exercising his appointment authority under Government Code section 12561.

True, a county board of supervisors, while charged with “supervis[ing] the official conduct of all county officers,” is also enjoined not to “obstruct the investigative function of the sheriff.”  (Gov.Code, § 25303.)   But this provision simply shows that a California sheriff acts in some respects autonomously from the county board of supervisors;  it does not logically make the sheriff a state agent.   As explained in Brewster v. Shasta County, supra, 275 F.3d at page 810, the restriction in Government Code section 25303 “is akin to a separation of powers provision, and as such has no obvious bearing on whether the sheriff should be understood to act for the state or the county when investigating crime within his county.   Merely because a county official exercises certain functions independently of other political entities within the county does not mean that he does not act for the county.”   A California sheriff, then, makes law enforcement policy for his or her own department,  which, though it operates outside direct county legislative control in some respects, is nonetheless part of the county government, both formally and financially, rather than an arm of the state.¹

“The purpose of a McMillian analysis is to cull from cases seeking a federal remedy for civil rights violations, those in which the remedy would impugn state sovereignty.”  (Roe v. County of Lake, supra, 107 F.Supp.2d at p. 1151.)   As discussed above, California sheriffs are elective county officers, whose compensation and budgets are set by county boards of supervisors and whose tort judgments are county liabilities.   Moreover, as a county officer, a California sheriff can be removed only at an election by the county voters or, during his or her term of office, by trial on an accusation returned by a county grand jury.  (Gov.Code, § 3060;  People v. Hulburt (1977) 75 Cal.App.3d 404, 409, 142 Cal.Rptr. 190.)   To paraphrase the decision in Roe v. County of Lake, supra, at page 1152, “[t]he deterrent effect of paying any judgment plaintiff may obtain will be felt in [Los Angeles] County.   If the public is dissatisfied with [the sheriffs policies], he will either not be reelected by the voters of [Los Angeles] County or he will be impeached before a [Los Angeles] County grand jury.”   In sum, the Los Angeles County Sheriff is not a designated state officer under the California Constitution, nor is he appointed by the state, nor removable by the state, nor subject to the immediate day-to-day supervision of any state agency or officer.   Most important, a tort judgment against the Los Angeles County Sheriff in his personal or official capacity is a liability of the County, which funds the sheriff’s office, not of the state.   Truly, “[i]t is hard to see how any of this will violate California’s sovereignty.”  (Ibid.)

II

McMillian itself is not to the contrary.   The role of sheriffs and other county officers vis-à-vis state government varies from State to State;  thus “no inconsistency [is] created by court decisions that declare sheriffs to be county officers in one State, and not in another.”  (McMillian, supra, 520 U.S. at p. 795, 117 S.Ct. 1734.)   More significantly, the McMillian court, though it discussed at length aspects of state classification of and control over Alabama sheriffs,² relied crucially on Alabama law fixing any potential responsibility for a sheriff’s  torts on the state, which was immune under the state constitution, rather than the county.   (McMillian, supra, at p. 789, 117 S.Ct. 1734.)   The McMillian court observed that the Alabama Constitution classified sheriffs as officers of the state’s executive department and gave the state authority to remove sheriffs by impeachment.  (McMillian, supra, at pp. 787-788, 117 S.Ct. 1734.)   “Critically for our case,” the high court continued, the Alabama Supreme Court, relying on those constitutional provisions, had held sheriffs were state officials for tort law purposes, and the counties were therefore not liable for their torts.  (Id. at p. 789, 117 S.Ct. 1734.)

The majority opinion argues that the McMillian court found “critical” to its reasoning not Alabama’s assignment of tort liability but, rather, “the fact that the Alabama Supreme Court had determined that the framers of the Alabama Constitution took steps to ensure that its sheriffs would be considered executive officers of the state.”  (Maj. opn., ante, 11 Cal.Rptr.3d at p. 702, 87 P.3d at p. 9.)   That reading of McMillian may be facially plausible, but, unlike my own, it fails to harmonize McMillian with the high court’s previous holdings in Will, supra, 491 U.S. at page 70, 109 S.Ct. 2304, that state-agent immunity to section 1983 liability applies “only to States or governmental entities that are considered ‘arms of the State’ for Eleventh Amendment purposes,” and Hess, supra, 513 U.S. at page 48, 115 S.Ct. 394, that the state’s potential legal liability for damages is “the most salient factor in Eleventh Amendment determinations.”   As I read McMillian, supra, 520 U.S. at page 789, 117 S.Ct. 1734, the court concluded, from the fact Alabama law classifies sheriffs, with respect to tort damages, as officials of the state, rather than the county, that an Alabama sheriff’s office is an “arm of the state” for sovereign immunity purposes under Hess. A section 1983 damages suit against an Alabama sheriff in his official capacity is therefore an action seeking money damages from the state, rather than from a county, and for that reason is barred under Will.

The same, of course, cannot be said of California sheriffs.   When sheriffs are sued personally in tort, their counties, not the state, are liable in respondeat superior.  (Gov.Code, § 815.2;  Sullivan v. County of Los Angeles, supra, 12 Cal.3d at p. 717, 117 Cal.Rptr. 241, 527 P.2d 865.)   Although section 1983 liability cannot be imposed on a public entity vicariously, but only for acts done pursuant to the entity’s own policies or customs (Monell, supra, 436 U.S. at p. 694, 98 S.Ct. 2018), the counties’ vicarious liability for sheriffs’ state law torts is nonetheless “strong evidence” (McMillian, supra, 520 U.S. at p. 789, 117 S.Ct. 1734) that California sheriffs ordinarily act as county, not state, agents.³  Where, as here, a sheriff is sued in his official, not personal, capacity, any judgment for damages would be a  liability of his office, here the Los Angeles Sheriff’s Department.⁴  Such a judgment would thus be a liability of the County, which establishes the budget of the sheriff’s department and must include therein the funds to pay judgments.  (Gov.Code, §§ 970.8, 29601, subd. (b)(1);  Los Angeles County Code, ch. 4.12.)   Considering the liability factor held critical in McMillian, then, a section 1983 damages suit against a California sheriff in his official capacity is not an action seeking money damages from the state and is, therefore, not barred under Will.

Our decision in Pitts v. County of Kern, supra, 17 Cal.4th 340, 70 Cal.Rptr.2d 823, 949 P.2d 920, does not, in my view, compel a different result.   To be sure, in holding that district attorneys act for the state when prosecuting and preparing to prosecute criminal violations of state law, the court relied in part on provisions of California law equally applicable to sheriffs.  (See id. at pp. 356-358, 70 Cal.Rptr.2d 823, 949 P.2d 920 [discussing Cal. Const., art. V, § 13 and Gov.Code, § 25303].)   But the court expressly declined to consider the tort liability factor held critical in McMillian, reasoning that it was of little importance because public employees and their employers enjoy broad statutory immunity, under California law, for instituting or prosecuting an action.  (Pitts v. County of Kern, supra, at pp. 360-361, fn. 7, 70 Cal.Rptr.2d 823, 949 P.2d 920.)

Whether or not the analysis in Pitts v. County of Kern was adequate to explain why the lack of potential state liability was not relevant or determinative, it distinguishes the present case, for California public employees and entities enjoy no such blanket immunity for illegal arrests and searches, the area of activity at issue here.⁵  District attorneys, moreover, have a particularly strong association with the direct exercise of the state’s power and are thus  further distinguished from sheriffs, in that they prosecute state criminal offenses in the name of, and as the legal representatives of, the People of the State of California.   (See Pitts v. County of Kern, supra, 17 Cal.4th at p. 360, 70 Cal.Rptr.2d 823, 949 P.2d 920.)   Nothing comparable to that direct link suggests a California sheriff acts as an arm of the state by apprehending criminals within his or her county.

III

The issue that primarily divides the majority opinion from this separate opinion and from the Ninth Circuit decisions in Brewster v. Shasta County, supra, 275 F.3d 803, and Streit v. County of Los Angeles, supra, 236 F.3d 552, is one of federal, rather than California, law.   I believe that under the United States Supreme Court’s decisions establishing state sovereign immunity from section 1983 liability, the state’s potential legal liability for torts of a local government office is a critical factor in deciding whether or not that office is an arm of the state.  (McMillian, supra, 520 U.S. at p. 789, 117 S.Ct. 1734;  Hess, supra, 513 U.S. at p. 48, 115 S.Ct. 394;  Will, supra, 491 U.S. at p. 70, 109 S.Ct. 2304;  see also Brewster v. Shasta County, supra, 275 F.3d at p. 808;  Streit v. County of Los Angeles, supra, 236 F.3d at p. 562.)   The majority opinion does not dispute that California law assigns potential liability for acts of a sheriff to the county rather than the state, but considers this fact irrelevant. (Maj. opn., ante, 11 Cal.Rptr.3d at p. 702, 87 P.3d at p. 9.)   Thus, the disputed point is the relevance and weight, under federal law, to be given a particular aspect of state law defining the relationship of California sheriffs to the state and county governments.

Until this question is resolved, federal district courts in California will be required to follow one rule, permitting section 1983 suits against sheriffs’ departments, while California superior courts will be required to follow the opposite rule, prohibiting such actions.   I urge the United States Supreme Court to consider removing this anomaly by deciding the underlying issue of federal law.

FOOTNOTES

1.   Violations of court orders issued pursuant to Civil Code section 52.1 are declared to be punishable as misdemeanors under the act.   (See § 52.1, subd. (d);  see also Pen.Code, § 422.9.)

1.   Cf. Franklin v. Zaruba (7th Cir.1998) 150 F.3d 682, 685-686 (although Illinois sheriffs are not county agents for respondeat superior purposes, neither are they immune from section 1983 liability as state agents;  sheriff is instead “an agent of the county sheriffs department, an independently-elected office that is not subject to the control of the county in most respects”).

2.   McMillian, supra, 520 U.S. at pages 787-788, 790-792, 117 S.Ct. 1734.   Alabama law on this point differs from that of California in several notable respects.   Where Alabama classifies sheriffs as members of the state executive department (see id. at p. 787, 117 S.Ct. 1734), California classifies them as elective county officers (Cal. Const., art. XI, §§ 1, subd. (b), 4, subd. (c);  Gov.Code, § 24000).   Where the Alabama Legislature sets its sheriffs’ salaries (McMillian, supra, at p. 791, 117 S.Ct. 1734), California delegates that choice to the county boards of supervisors (Gov.Code, § 25300).   And where impeachment of an Alabama sheriff may be initiated by the Governor in that state’s Supreme Court (McMillian, supra, at p. 788, 117 S.Ct. 1734), a California sheriff may be removed only on an accusation returned by a county grand jury (Gov.Code, § 3060).

3.   The majority opinion suggests discussion of county liability under Government Code section 815.2 begs the question because if the sheriff were immune so would be his or her public employer.  (Maj. opn., ante, 11 Cal.Rptr.3d at p. 701, 87 P.3d at p. 9.)   I disagree.   The question of which government entity would bear tort liability for acts of a particular government official is, in this context, a hypothetical one;  it assumes the existence of an action in which the official is not immune from liability.   But it does not make the assumption that the official is not immune in the action at bench.

4.   See Will, supra, 491 U.S. at page 71, 109 S.Ct. 2304 (official-capacity suit “is not a suit against the official but rather is a suit against the official’s office”).   In this case, plaintiffs redundantly sued both the County’s sheriff in his official capacity and its sheriff’s department.  (Maj. opn., ante, 11 Cal.Rptr.3d at p. 695, 87 P.3d at p. 4.)

5.   The majority opinion (ante, 11 Cal.Rptr.3d at p. 702, 87 P.3d at p. 9) cites Government Code sections 820.2 (discretionary acts) and 820.4 (law enforcement) as providing sheriffs potential immunity.   But the former provision applies only to basic policy decisions committed to the legislative or executive branches of government (Barner v. Leeds (2000) 24 Cal.4th 676, 685, 102 Cal.Rptr.2d 97, 13 P.3d 704), while the latter statute provides immunity only for acts taken with “due care” and exempts “false arrest or false imprisonment.”   It is also well established that “a governmental entity can be held vicariously liable when a police officer acting in the course and scope of employment uses excessive force or engages in assaultive conduct.”  (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 215, 285 Cal.Rptr. 99, 814 P.2d 1341.)   The cited statutes thus indicate no broad immunity comparable to that relied upon in Pitts v. County of Kern, supra, 17 Cal.4th at pages 360-361, footnote 7, 70 Cal.Rptr.2d 823, 949 P.2d 920, for unreasonable searches and seizures.

CHIN, J.

WE CONCUR:  GEORGE, C.J., BAXTER, and BROWN, JJ.

cited https://caselaw.findlaw.com/ca-supreme-court/1009989.html

Laws are Beautiful if obeyed by the government as well

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Article. I.

Section. 1.

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Section. 2.

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Section. 3.

The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.

Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.

No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.