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Misconduct by the Prosecutor

the prosecutor is a mere servant to the sovereign people to uphold the Constitution 1st and our laws 2nd, the law we vote for or are made by our elected servants we chose anything outside of these boundaries is treason to the US Constitution and their Sworn Oath and is abuse of immunity and civil rights and is a crime you will be held accountable by your employer, us the sovereign people! you are mere actors of the state servants to the people!

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.”

Pro$ecutor‘$ Duty to the citizen

 

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

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

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

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

Martin v. Thomas et al. 2022 – Employer Independent Negligence

Anti-SLAPP Law in California

 

Thompson v. Clark – Maliciou$ Prosecution claim under § 42 U.S.C. 1983  Click Here
20-659 Thompson v. Clark (04-04-2022) – Suing the Government 

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)

 

Attorney Rule$ of Engagement – Government (A.K.A. THE PRO$UCTOR) and Public/Private Attorney

What is a Fiduciary Duty; Breach of Fiduciary Duty

The Attorney’s Sworn Oath

Malicious Prosecution / Prosecutorial Misconduct – Know What it is!

New Supreme Court Ruling Makes it easier to Sue 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.”

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) ”

In Berger v. United States, 295 U.S. 78 (1935), Justice Sutherland characterized prosecutorial misconduct as “overstepp[ing] the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense.” In the years since Berger, advocates for the wrongly convicted have increasingly focused on prosecutors’ failure to disclose favorable evidence – what are known as “Brady” violations, after the 1963 case of Brady v. Maryland – as one of the most harmful and pervasive forms of prosecutorial misconduct.

In the Dewayne Brown case, for example, a long-buried email chain uncovered more than a decade after Brown’s trial revealed that the trial prosecutor, Dan Rizzo, had deliberately hidden phone records from Brown’s defense attorney that supported Brown’s alibi. Those records might have stayed hidden forever had the police officer who originally obtained them not saved and found a copy in his garage while Brown was wrongfully incarcerated on death row. It was only after the original records were turned over and Brown was released from death row that a special prosecutor assigned to the case concluded that Rizzo not only knew about the phone records before trial, but had knowingly concealed them from Brown’s defense team.

Another example is the case of Stanley Mozee and Dennis Allen, who were both exonerated in Dallas, Texas, in 2019 after spending more than 15 years in prison for a murder they did not commit. Their joint exoneration was based on documents located in the files of the trial prosecutor, Rick Jackson, showing that he’d knowingly put on false testimony from several jailhouse informants and suppressed key evidence from eyewitnesses that would have strongly supported Mozee’s and Allen’s innocence claims. source

 

Juri$diction

[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.

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 juri$diction 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.”

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

[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.

 how Jurisdiction & immunity is violated Murphy v. Ross, Civil Action No. 3:14cv870 (E.D. Va. Apr. 14, 2015)

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.”

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. “

 

Civil Rights Torts

Thompson v. Clark 2022 – MALICIOUS PROSECUTOR & OFFICER

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.

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.

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 $anction$ 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.“

 

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

Civil Rights

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 FourteenthAmendment) 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(Fifthand 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.”

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.”

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; UnitedStates 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.

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 commonlawrights 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.

you spoiled my right to a relationship with my son by perjurious statements in court and scheming to irritate, detract and divert attention from the real problemand paint me into a problem you sir will be SUED IN A CIVIL COURT when you get SUED WITH A TORT CLAIM on your department and county because you conspired to deprive me of my rights , by depriving me of  9.32 Particular Rights – Fourteenth Amendment – Interference with Parent/Child Relationship

you will be held accountable I DO NOT CARE YOU ARE A COP, YOU WONT BE FOREVER YOU WILL PAY, BUT WALMART IS HIRING AFTER ALL THIS SO DONT WORRY YOU STILL HAVE A SHIT LIFE JUST AT A DIFFERENT PLACE, A PLACE THAT DOES NOT ALLOW A PERSON WITH TRUST & POWER TO CORRUPT!  YOU WILL BE A POWERLESS LOW PAID WORKER WHEN AS YOU AGE, YOU ARE A LYING CORRUPT ASS PIG YOU WILL PAY MONETARILY & REPUTATION WISE 

you harmed me, my son, his grandparents and his brother  (my other son)

Those were Bar and Business Code Violations
(with Penal attachments for code violation)

Rule 3.1 Meritorious Claims and Contentions

Rule 1.1 Competence 

Rule 5-100 Threatening Criminal, Administrative, or Disciplinary Charges Caitly had her CHUMP PUNK PIG ABUSE BRUCE BLANK (BRAIN DEAD MORON)

Rule 3.3 Candor Toward the Tribunal
(1) Make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) Fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(3) Offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter that the lawyer reasonably believes is false.

Rule 4.1 Truthfulness in Statements to Others I HAVE ATTACHED ALL HIS LIES
Truthfulness in Statements to Others also covers the duty of candor. He actually tells statements he knows to be false which is not allowed even when protecting confidentiality

Rules 1.2.1 [Advising or Assisting the Violation of Law) HE HELPED NIGEL STAY IN HOME

Rule 8.4 Misconduct

  • Business and Professions Code section 6106 discipline per Business and Professions Code section 6106 “for acts involving moral turpitude, dishonesty, or corruption, whether intentional, reckless, or grossly negligent.”
    [1] A lawyer is required to be truthful when dealing with others on a client’s behalf, but generally has no affirmative duty to inform an opposing party of relevant facts. A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Misrepresentations can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements. For dishonest conduct that does not amount to a false statement or for misrepresentations by a lawyer other than in the course of representing a client,Cal. Bus. & Prof. Code § 6106 I HAVE ATTACHED ALL HIS LIES to the family law case 17FL000138 which the courts will be getting soon again OCT 2022
    Moral Turpitude: Deceit, Dishonesty, Half-Truths Under California law, most forms of deceit and dishonesty by an attorney are considered acts of moral turpitude, according to the State Bar. Under Business & Professions Code § 6106, the commission of any act of moral turpitude constitutes cause for disbarment from the practice of law.
    Ca. Bus. and Proof’s. Code § 6106 California Business and Professions Code section 6106, which permits State Bar discipline for actions involving dishonesty (among other things) whether or not a licensed lawyer is practicing law I HAVE ATTACHED ALL HIS LIES
    Added by Stats. 1939, Ch. 34.
    Cal. Bus. & Prof. Code § 6106 “The commission of any act involving moral turpitude, dishonesty, or corruption whether the act is committed in the course of his relations as an attorney, and whether the act is a felony or misdemeanor or not, constitutes a cause for disbarment or suspension.” (Emphasis added.) “Moral turpitude” has been defined by the California Supreme Court as “anything done contrary to justice or honesty.” See Bryant v. State Bar of California (1942) 21 Cal.2d 285.
  • Cal. Bus. & Prof. Code § 6128 I HAVE ATTACHED ALL HIS LIES
    Every attorney is guilty of a misdemeanor who either: Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party.     This actually imposes misdemeanor criminal liability on a lawyer who engages in or consents to any deceit or collusion “with intent to deceive the court or any party.” (BP 6128(a)) Punishment for violating this section is up to a six-month jail sentence or a fine of up to $2,500 or both (Emphasis added.).
    The B&P Code governs the conduct of all lawyers, no matter what area or type of practice involved. Read together, the above-referenced sections make it clear that as officers of the court, sworn to “preserve, protect, and defend the Constitution” as all must be in order to practice law in the State of California, lawyers are required to be truthful in all of their dealings or be guilty of a misdemeanor. This isn’t a “fine line” — it is black letter law. An attorney who is guilty of criminal conduct — whether misdemeanor or felony — can be assured that it will negatively affect their ability to practice law going forward.
  • Rule 3-200 Prohibited Objectives of Employment
    A member shall not seek, accept, or continue employment if the member knows or should know that the objective of such employment is:
  • To bring an action, conduct a defense, assert a position in litigation, or take an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person; or
  • To present a claim or defense in litigation that is not warranted under existing law, unless it can be supported by a good faith argument for an extension, modification, or reversal of such existing law.
    Id. at Rule 3-200; see also Cal. Bus. & Prof. Code § 6068.Subsection (c) provides that an attorney must counsel only just actions or defenses except if the client is charged with a public offense. Subsection (d) embodies the duty of candor and provides that may only do such things that are consistent with the truth. A violation of these rules could subject the attorney to suspension or disbarment. Cal. Bus. & Prof. Code § 6103.
  • California Rule of Professional Conduct 5-200, Trial Conduct, states that in presenting a matter to a tribunal, a member:
        • Shall employ, for the purpose of maintaining the causes confided to the member, such means only as are consistent with truth; told the court Nigel has moved out even though I had emailed him surveillance and I presented to the court evidence contrary to his statements he denied my claims and mislead the court and bold face lied to them
        • Shall not seek to mislead the judge, judicial officer or jury by an artifice or false statement of fact or law; told through suggestion to the judge by not returning my son who fears moms home that I am kidnapping my son, even though I have police incident reports I show up to each exchange and the child refuses to go even after speaking with the sheriff and he said I put a gun to my sons head
        • Shall not intentionally misquote to a tribunal the language of a book, statute or decision; he did this by telling the court flat out lies on several instances including misleading by misquoting the tribunal decision previously  the CONTENTS OF THE JUDGES ORDER TO PROTECT MY SON. Mr. Toepel also told the courts this with vexatious litigant told the court I fit the criteria which is lying and misleading the Tribunal. Mr. Toepel had the court make an erroneous decision and declare me a Vexatious litigant. I NEVER FIT ANY CRITERIA! Code of Civil Procedure section 391(b) clearly states – Vexatious litigant requires in a 7-year period maintained in propria persona at least 5 litigations other than small claims court that has been finally determined adversely to the person. I have exactly 0 cases that fall into this classification. I have testimony from Mr. Toepel via transcripts of numerous attempts to mislead the judge to declare me a vexatious litigant
        • he used this order to criminally cause issues for me and still completely lock me out of communication and the ability to fight for my rights to fatherhood he helps take from me by grossly misleading to the court on every occasion he attended
        • Shall not, knowing its invalidity, cite as authority a decision that has been overruled or a statute that has been repealed or declared unconstitutional; and he tried to seek a restraining order against flyer distribution which is my 1st amendment rights to send out regarding information that is factual news about members of the community (judge denied him)
          He attempts to get restraining orders one for himself and one for his client he received both under a complete lie and false pretenses. He misleads the court about the physical danger he and his client were in. Never once did I threaten their physical safety however I did exercise my 1st amendment rights, my freedom of speech allows me to complain on Google Reveiws, Yelp, and any supervisory person incharge of either their license of them if they are in commission of a violation of their sworn duties. I cannot be prevent or punished from complaining unless they are fake or false.  He also told the court that he will communicate with me, as I am PRO PER, for legal matters only if the judge issues the restraining order, he issued it and I tried communicating over 50 times via email and voice message to no avail. He lied to the issuing judge and used this order to criminally cause issues for me and still completely lock me out of communication and the ability to fight for my rights to fatherhood he helps take from me by grossly misleading to the court on every occasion he attended
          Rule 5-200 provides that an attorney will present in front of the court using only those means that are consistent with the truth and shall not act to mislead the judge, judicial officer or jury through a false statement of the law or fact, nor shall the attorney intentionally misquote a source or knowingly cite invalid authority.
          Cal. Rule of Prof. Conduct 5-200 provides that “[i]n presenting a matter to a tribunal, a member: (b) shall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law.” See also Mendez v. Superior Court, 162 Cal. App.4th 827 (2009) (observing that “‘“ [c]ounsel should not forget that they are officers of the court, and while it is their duty to protect and defend the interests of their clients, the obligation is equally imperative to aid the court in avoiding error and in determining the cause in accordance with justice and the established rules of practice.”’”)
          Id. at Rule 5-200. For a discussion of the duty of candor, and its application in questions about witnesses, client perjury, and citing authority, see Wendy Patrick Mazzarella, Lawyer’s Duty of Candor: Zealous representation can lead attorneys down a slippery slope right up to the ethical edge, CALIFORNIA BAR JOURNAL (April 2007), available at https://archive.calbar.ca.gov/archive/Archive.aspx?articleId=84844&categoryId=84645&month=4&year=2007If you are reading this in print and the link is too hard I have shortened it with a link shortening service by TINYURL in which will redirect you too the actual CALBAR link above  https://tinyurl.com/truthcalbarCal. Rules Prof. Conduct, 5-200.
          People v. Davis, 48 Cal.2d 241, 257 (1957); In re Branch, 70 Cal.2d 200, 210-211 (1969); Cal. Penal Code § 127. “Every person who willfully procures another person to commit perjury is guilty of subornation of perjury. . . .” and may be punished as if he had perjured himself, which includes a prison term of two, three or four years. Cal. Penal Code §§ 126-27. 475 U.S. 157 (where defendant, in presenting claim of self-defense shortly before trial that he’d seen something metallic in the victim’s hand and told his attorney that “[i]f I don’t say I saw a gun, I’m dead”, the defendant did not render ineffective assistance of counsel when he told his client he would tell the court and withdraw as his attorney if the client so perjured himself; the client did not present the perjured testimony as was convicted).
          Nix, supra 475 U.S. at 169-70.
          People v. Johnson, 62 Cal.App.4th 608 (1998) (finding it error when attorney told court he had an “ethical conflict” calling him as a witness and the court prevented the defendant from testifying).
          Cal. Rules Prof. Conduct 3-310(B)(4) provides that an attorney can’t accept or continue representation of a client without providing written disclosure when has or has had legal, business, financial or professional interest in the subject matter of the representation.
          ABA Model Rules 4.1(a) (2008).
          ABA Model Rules 4.1 cmt. 2 (2008).
          Cal. Evid. Code § 1126. 17 ABA Model Rules 3.3(a)(2) (2008).
  • 26 U.S. Code § 7206 – Fraud and false statements learn at Cornell Lawhere
  • perjury when Paul Toepel attorney of law perjured himself in court  Perjury – California Penal Code 118 PC describes perjury as knowingly providing false testimony while under oath, which is a felony offense punishable by up to four years in jail.
  • CALIFORNIA ATTORNEY MISCONDUCT LAW
    State Bar Court decision, In the Matter of Maloney and Virsik:
    “[The attorneys] committed acts of moral turpitude in wilful violation of section 6106 by knowingly making repeated misrepresentations to the Superior Court. It is well established that acts of moral turpitude include an attorney’s false or misleading statements to a court or tribunal…The actual intent to deceive is not necessary…Acts of moral turpitude include concealment as well as affirmative misrepresentations…
    [N]o distinction can be drawn among concealment, half-truth, and false statement of fact…Also, it is not necessary that [the attorneys] actually succeeded in perpetrating a fraud on the court…These [court] pleadings were permeated with half-truths, omissions, and outright misstatements of fact and law. The Supreme Court has denounced such misleading conduct and has not hesitated to impose discipline in such cases.”
    Lawyers have always had a duty to be honest and truthful pursuant to general ethical principles, as well as the State Bar Act. The newest version of the Rules of Professional Conduct, effective November 1, 2018, provides more specific guidance to lawyers relative to this duty. Rules 1.2.1, 1.6, 3.4, 4.1, 4.2, 4.3,7.1 through 7.5, and 8.4 are all implicated in this duty, as well as Business & Professions Code (“B&P”) sections 6068(d), 6106, and 6128, among others. This discussion will focus on the B&P Code sections, violations of which constitute cause for disbarment or other State Bar sanction, including but not limited to suspension, fines, and re-taking the Professional Responsibility examination.
    Lawyers are required to be truthful not only in dealing with the court and parties in litigation, but also in transactional matters and document preparation. Violations by a lawyer of these requirements can result in not only liability in tort — to one’s own client as well as opposing parties and counsel — but also in State Bar discipline.
    The B&P Code is the source that allows the State Bar to prosecute lawyers for violations of ethical requirements, and section 6068 contains a long list of an attorney’s duties: “It is the duty of an attorney to do all of the following: …

(d) to employ, for the purpose of meeting the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judgeor any judicial officer by an artifice or false statement of fact or law. (Emphasis added.)
Opposing lawyers, as “officers of the court”, are duty-bound to not only tell the truth, but not to omit information that would cause the court or opposing counsel to be misled. This applies not only to litigated matters, but to “all causes confided to him or her”. See Shafer v. Berger, Kahn, et al. (2003) 107 Cal.App.4th 54 for a lengthy discussion of attorney misrepresentations which were determined to be fraudulent, including statements made by counsel during settlement negotiations.

MALICIOU$ PRO$ECUTOR$ = OCDA OFFICE THE WHOLE THING IS OFF

CHILD ENDANGERMENT, FAILURE TO ACT MALICIOUS  PROSECUTION AS WELL

Never helping Me or My son with a bonified Child Sex Crime of PC 288 and PC 288.2 

i still have the APPLE BACKUP OF THE DEVICE WHICH CLEARLY HAS ALL THE PHONE CALLS AND TEXTS BETWEEN ME AND MY SON ON HIS PRIMARY COMMUNICATION DEVICE THAT I ALSO FOUND HIS ADULT BROTHER DICK ALL OVER THAT WERE TAKEN IN PUBLIC PARKS. CAITLYN IS SO DUMB OF A CUNT SHE THOUGHT I WAS REPORTING THE CRIME OF DICK PICS IN A PARK! WOW DUMB CUNT YOU WERE TOLD THAT THEY WERE DICK PICS ON MY SON’S PHONE THE LOCATION TAKEN DOES NOT MATTER, THAT CRIME WOULD HAVE BEEN INDECENT EXPOSURE REQUIRING A VICTIM IN THE PARK TO REPORT THAT MISDEMEANOR. I WAS NOT REPORTING THAT DUMB CUNT! I WAS REPORTING THE FACT THE PHOTOS WERE FOUND ON MY SONS PHONE, HE DOES NOT NEED TO SEE THEM WITH HIS EYES FOR THE CRIME TO HAVE BEEN COMITTED. THE MERE TAKING OF MY SONS PRIMARY COMMUNITCATION DEVICE , TAKING SAID BORROWED/STOLEN PHONE AS AN ADULT TO A PARK TO PHOTO HIS COCK AND DO THIS OVER A MULTITUDE OF TIMES, DAYS, AND LOCATIONS WOULD, MEANWHILE MY SON HAS RECEIVED THE PHONE BACK MANY TIMES WHERE HE PROCEEDS TO TEXT, CALL ME AND USE THE PHOTO APP FOR HIS POWN PHOTOS WHERE I CAN SEE HIS PHOTOS IN BETWEEN ADULT DICK PHOTOS

YOU FAILED TO PROTECT MY MINOR SON, THE CRIME WAS COMMITTED Never helping Me or My son with a bonified Child Sex Crime of PC 288 and PC 288.2 

YOU THEN BECAME A VINDICTIVE CUNT AS ALL WORTHLESS DUMB WOMEN ALWAYS DO, THEN YOU GOT SOME LOW BALL BETA MALE TO HELP YOU PUT A CASE ON ME AND YOUR CLUCK WAS BRADBURY THE MALICOUS IDIOT WHO IS CAPTAIN SAVE A BLONDE DUMB CUNT HOE!

DA Caitlyn Harrington & Detective Jason Forgash  & Officer Montano & a Watch commander (all recorded by me) did this to me! She is the “dumb worthless young wet behind the ear cunt” I called her, SHE IS SO DUMB she puts it in her 653(m)  vindictive prosecution of me that she never answered my complaint of Gregory and his dick pics on my sons phone because their office is now vindictively  prosecuting me for Montano the lying pig that not only put a temporary restraining order for Marcia (baby mama) he lied and said he served me, but he did not, i never lived with Marcia. I lived at the time in Santa Clarita. Then this Dbag Montano is one of the same officers sent to investigate DICK PICS ON MY SONS PHONE, which as him  being in officer in both instances one for the mother one against the mother and no help to me is proof of bias as well. read all their reports….! Marcia ask LHPD to let her know if I call them (LHPD) to report anything at which in the report the officer in one of Marcia’s complaints has a “We told her we would notify her” wow so she gets warnings calls from LHPD when I call to report her violating the court order and allowing the sex offender in the home. Huntleman can’t even honor Judge’s stay away orders protecting my son from a wanted sex offender.  He also does not arrest sex offenders with fugitve bench warrants as he is too insubordinate and incapable of being able and apt to carry out his duty as a sworn officer of the constitution first, then federal law, the state law

424 F.2d 1021 US v.  Horton R. PRUDDEN,No. 28140. . United States Court of Appeals, Fifth Circuit.April 1970Silence 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.

YOU ARE BEYOND MALICIOUS AND INCOMPETANT OF LAW AND THE CONSTITUTION 

  • 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. 5 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)

 

State laws do not limit or guide their decisions. Ultimately their job is to ensure justice is being delivered and crime is kept off the streets. Objectives: Prosecution has the burden of proving beyond a reasonable doubt that the defendant is guilty. Innocent until proven guilty.

 

 

 

 

PENAL CODE – PEN 1096.   PART 2. OF CRIMINAL PROCEDURE [681 – 1620]   ( Part 2 enacted 1872. )
TITLE 7. OF PROCEEDINGS AFTER THE COMMENCEMENT OF THE TRIAL AND BEFORE JUDGMENT [1065 – 1188]  ( Title 7 enacted 1872. )
CHAPTER 2. The Trial [1093 – 1130] ( Chapter 2 enacted 1872. )

A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his or her guilt is satisfactorily shown, he or she is entitled to an acquittal, but the effect of this presumption is only to place upon the state the burden of proving him or her guilty beyond a reasonable doubt. Reasonable doubt is defined as follows: “It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.”

Pursuant to California Penal Code Section 836, peace officers are authorized to make an arrest based on probable cause. As such, the Police must believe that there is more evidence for than against the prospect that the person sought is guilty of a crime, yet reserving some possibility for doubt.

There is no statutory standard to be used by the District Attorney for filing charges against a suspect arrested by the Police Department. However, the San Francisco District Attorney”s Office does operate under charging standards established by the California District Attorney”s Association. According to the District Attorney”s Office, the DA”s interpretation of these standards is equivalent to the provisions contained in Penal Code Section 1096, which states that the guilt of a suspect must be proven beyond a reasonable doubt.

Although PC Section 1096 is intended to be used as a jury instruction when a criminal trial begins, in San Francisco, the DA applies this standard much earlier in the criminal justice process. As such, at the point at which formal charges are made against the suspect, the guilt of the suspect must be proven to the DA beyond a reasonable doubt.

As a result, prosecutable cases are possibly being discharged by the DA because they do not meet this high standard. Other California District Attorney”s Offices apply a less rigorous standard in making the determination whether or not to file charges. As such, as a policy decision, the District Attorney may wish to consider establishing a more flexible policy for accepting cases for prosecution.

Policy Option

The District Attorney should:

1.4.1 Consider establishing a more flexible policy for accepting cases from the Police Department for prosecution.

 

 

TO LEARN MORE ABOUT THE PROSECORS ROLE AND DUTY TO THE PEOPLE WHO ARE SOVEREIGN AND…..
THEY ARE MERE SERVANTS TO
WE CANNOT LET IMMUNITY GO TO YOUR HEAD YOU SERVE US YOU ARE TO BE RESPONSIBLE WITH YOUR POWER WE THE PEOPLE ALLOW YOU TO HAVE!

 

 

National District Attorneys Association puts out its standards
National Prosecution Standards – NDD can be found here

The Ethical Obligations of Prosecutors in Cases Involving Postconviction Claims of Innocence

Prosecutor’s Duty Duty to Disclose Exculpatory Evidence Fordham Law Review PDF

Chapter 14 Disclosure of Exculpatory and Impeachment Information PDF

 

 

 

 

 

Little known fact$:

Can the District Attorney’s Texts Be Used As Evidence?

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

 

 

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.”

 

 

 

Learn more about these sujects

  • Malicious Prosecution
  • Prosecutional Misconduct
  • Vindictive Prosecution
  • Retaliatory Prosecution
  • Abuse of Process

Selected Issues in Malicious Prosecution Cases

Malicious Prosecution / Prosecutorial Misconduct

Vindictive Prosecution – Georgetown University

VINDICTIVE AND SELECTIVE PROSECUTION

What is Abuse of Process?

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

What’s the Difference between Abuse of Process and Malicious Prosecution?

 

Malicious Prosecution Actions Arising Out Of Family Law Proceedings: Proceed Carefully

Frivolous, Meritless or Malicious Prosecution

 

SCOTUS Makes It Easier To Sue Police And Prosecutors For Malicious Prosecution

Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors

National District Attorneys Association – National Prosecution Standards – NDDA

What Happens If Charges Are Dropped Before Trial?

Functions and Duties of the Prosecutor – Prosecution Conduct

Possible courses of action Prosecutorial Misconduct

Misconduct by Judges & Prosecutor – Rules of Professional Conduct

PC 1385 – Dismissal of the Action for Want of Prosecution or Otherwise

 

Thomp$on v. Clark – Maliciou$ Pro$ecution 

Reichle v. Howards (2012) – Retaliatory Prosecution Claims Against Government Officials –1st Amendment

People v. Superior Court (Greer) 5th & 8th Amendment – Bias / Malicious Persecutor

Hartman v. Moore (2006) –Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

What is a Fiduciary Duty; Breach of Fiduciary Duty

Epic SCOTUS Decisions

 

 

 

 

Michael

OFFICER HUNTLEMAN WONT BE A COP LONG. HE IS A LIAR, A FRAMER, AND A CONSTITUTINOAL RIGHTS VIOLATOR. HE IS A POOR BANKRUPT CRIMINAL NOT A COP BUT A PIG 🐖 🐷 WALMART IS ALWAYS HIRING BRYAN, YOU WILL BE ADDRESS BY A FIRST NAME NAMECARD AS WALMART EMPLOYEE, THEY HAVE RETIREMENT PLANS, ALBEIT NOT AS GOOD AS THE POLICE DEPARTMENT

WHEN THE LAST TIME YOU ROAMED THE OCEAN ON YOUR BOAT WITH YOUR KID?
WHEN THE LAST TIME YOU HAD YOUR KID DRIVE IN YOUR LAMBO?
WHEN THE LAST TIME YOUR FLEW A HELICOPTER?
AND BESIDE MONEY WHICH I TRUMP YOUR PUNK BROKE BANKRUPT ASS IN… MONEY MEANS NOTHING TO ME

MONEY IS A TOOL FOR LIVING, YOU NEED IT, I DO NOT!

GOD HAS BLESSED ME FOR HARD WORK AND DEDICATION AND PREACHING HIS WORD.
GOD WORKS ON THOSE WHO WORK FOR HIM

 

 

YOU KNONW WHY? GOD IS TAUGHT IN MY HOME FROM DAY 1

I HAVE THE RESEPCT AND LOVE OF MY SON AND NOT TO MANY FATHERS CAN SAY THAT

YOU INTERUPTED AND PARTICIPATED IN DESTRUCTION OF A FAMILY UNIT AND LETTING EVIL AROUND A CHILD MY CHILD, LAWS WERE SET IN PLACE AND YOU IGNORED BOTH THE WARRANT AND JUDGES ORDER TO NOT HAVE THE SEX OFFENDER THERE! YOU ARE A FUCK WAD AND FINISHED IN LAW, GO TO WALMART SIGNUP EARLY YOU WILL NEED PLAN B NOW!@

YOU HAVE FUCKED UP

TIME FOR GETTING A NEW CARRER AFTER YOU ARE HELD ACCOUNTABLE

 

 

 

 

 

DISTRICT ATTORNEY & PAUL TOEPEL PLAY THESE VIDEOS

Rule 1.1 – Competence (DA REPRESENTS THE STATE)

Rule 1.2 – Assisting in a Crime

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Rule 3.4 – Fairness to Opposing Party and Council

PAUL TOEPEL PLAY THE NEXT VIDEO REMEMBER SUGGESTING ME TO BE MADE A VEXATIOUS LITAGANT YOU PUNK FUCK

Model Rule 3.8 pt.2 – Special Duties of Prosecutors

Learn More: ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

Model Rule 4.1 – Truthfulness in Statements to Others

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Model Rule 4.4 – Respect for the Rights of Others

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Model Rule 5.1 Responsibilities of a Partner or Supervisory Lawyer

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Model Rule 8.1 Bar Admission & Disciplinary Matters

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Model Rule 8.4 pt.1 – Lawyer Misconduct

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ABA Formal Op. 493 pt.1 – Rule 8.4(g): Purpose, Scope & Application

Model Rule 8.4 pt.2 – Discrimination & Harassment

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Attorney Ethics Rules – FOX 17 Know the Law

 

 

 

 

 

 

 

 

 

 

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

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

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

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

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

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

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

Learn More About True Threats Here below….

We also have the The Brandenburg v. Ohio (1969) – 1st Amendment

CURRENT TEST = We also have the The ‘Brandenburg test’ for incitement to violence – 1st Amendment

We also have the The Incitement to Imminent Lawless Action Test– 1st Amendment

We also have the True Threats – Virginia v. Black is most comprehensive Supreme Court definition – 1st Amendment

We also have the Watts v. United States – True Threat Test – 1st Amendment

We also have the Clear and Present Danger Test – 1st Amendment

We also have the Gravity of the Evil Test – 1st Amendment

We also have the Elonis v. United States (2015) – Threats – 1st Amendment

Learn More About What is Obscene…. be careful about education it may enlighten you

We also have the Miller v. California – 3 Prong Obscenity Test (Miller Test) – 1st Amendment

We also have the Obscenity and Pornography – 1st Amendment

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

$$ Retaliatory Arrests and Prosecution $$

Anti-SLAPP Law in California

Freedom of Assembly – Peaceful Assembly – 1st Amendment Right

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

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

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

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

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

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

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

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

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

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

Dwayne Furlow v. Jon Belmar – Police Warrant – Immunity Fail – 4th, 5th, & 14th Amendment

ARE PEOPLE LYING ON YOU? CAN YOU PROVE IT? IF YES…. THEN YOU ARE IN LUCK!

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

Penal Code 118.1 PC – Police Officer$ Filing False Report$

Spencer v. Peters– Police Fabrication of Evidence – 14th Amendment

Penal Code 148.5 PC –  Making a False Police Report in California

Penal Code 115 PC – Filing a False Document in California

Sanctions and Attorney Fee Recovery for Bad Actors

FAM § 3027.1 – Attorney’s Fees and Sanctions For False Child Abuse Allegations – Family Code 3027.1 – Click Here

FAM § 271 – Awarding Attorney Fees– Family Code 271 Family Court Sanction Click Here

Awarding Discovery Based Sanctions in Family Law Cases – Click Here

FAM § 2030 – Bringing Fairness & Fee Recovery – Click Here

Zamos v. Stroud – District Attorney Liable for Bad Faith Action – Click Here

Mi$Conduct – Pro$ecutorial Mi$Conduct

Prosecutor$

Attorney Rule$ of Engagement – Government (A.K.A. THE PRO$UCTOR) and Public/Private Attorney

What is a Fiduciary Duty; Breach of Fiduciary Duty

The Attorney’s Sworn Oath

Malicious Prosecution / Prosecutorial Misconduct – Know What it is!

New Supreme Court Ruling – makes it easier to sue police

Possible courses of action Prosecutorial Misconduct

Misconduct by Judges & Prosecutor – Rules of Professional Conduct

Functions and Duties of the Prosecutor – Prosecution Conduct

Information On Prosecutorial Discretion

Fighting Discovery Abuse in Litigation – Forensic & Investigative Accounting – Click Here

Criminal Motions § 1:9 – Motion for Recusal of Prosecutor

Pen. Code, § 1424 – Recusal of Prosecutor

Removing Corrupt Judges, Prosecutors, Jurors and other Individuals & Fake Evidence from Your Case

National District Attorneys Association puts out its standards
National Prosecution Standards – NDD can be found here

The Ethical Obligations of Prosecutors in Cases Involving Postconviction Claims of Innocence

ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

Prosecutor’s Duty Duty to Disclose Exculpatory Evidence Fordham Law Review PDF

Chapter 14 Disclosure of Exculpatory and Impeachment Information PDF

Mi$Conduct – Judicial Mi$Conduct

Judge$

Prosecution Of Judges For Corrupt Practice$

Code of Conduct for United States Judge$

Disqualification of a Judge for Prejudice

Judicial Immunity from Civil and Criminal Liability

Recusal of Judge – CCP § 170.1 – Removal a Judge – How to Remove a Judge

l292 Disqualification of Judicial Officer – C.C.P. 170.6 Form

How to File a Complaint Against a Judge in California?

Commission on Judicial Performance – Judge Complaint Online Form

Why Judges, District Attorneys or Attorneys Must Sometimes Recuse Themselves

Removing Corrupt Judges, Prosecutors, Jurors and other Individuals & Fake Evidence from Your Case

Misconduct by Government Know Your Rights Click Here (must read!)

 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?

PARENT CASE LAW 

RELATIONSHIP WITH YOUR CHILDREN &
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YOU CANNOT GET BACK TIME BUT YOU CAN HIT THOSE IMMORAL NON CIVIC MINDED PUNKS WHERE THEY WILL FEEL YOU = THEIR BANK

Family Law Appeal – Learn about appealing a Family Court Decision Here

9.3 Section 1983 Claim Against Defendant as (Individuals) —
14th Amendment this CODE PROTECT$ all US CITIZEN$

Amdt5.4.5.6.2 – Parental and Children’s Rights –
5th Amendment this CODE PROTECT$ all US CITIZEN$

9.32 – Interference with Parent / Child Relationship –
14th Amendment this CODE PROTECT$ all US CITIZEN$

California Civil Code Section 52.1
Interference with exercise or enjoyment of individual rights

Parent’s Rights & Children’s Bill of Rights
SCOTUS RULINGS FOR YOUR PARENT RIGHTS

SEARCH of our site for all articles relating for PARENTS RIGHTS Help!

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Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

Learn More:Family Law Appeal

Necessity Defense in Criminal Cases

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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
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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

DUE PROCESS READS>>>>>>

Due Process vs Substantive Due Process learn more HERE

Understanding Due Process  – This clause caused over 200 overturns in just DNA alone Click Here

Mathews v. Eldridge – Due Process – 5th & 14th Amendment Mathews Test – 3 Part Test– Amdt5.4.5.4.2 Mathews Test

“Unfriending” Evidence – 5th Amendment

At the Intersection of Technology and Law

We also have the Introducing TEXT & EMAIL Digital Evidence in California Courts – 1st Amendment
so if you are interested in learning about Introducing Digital Evidence in California State Courts
click here for SCOTUS rulings

Retrieving Evidence / Internal Investigation Case 

Conviction Integrity Unit (“CIU”) of the Orange County District Attorney OCDA – Click Here

Fighting Discovery Abuse in Litigation – Forensic & Investigative Accounting – Click Here

Orange County Data, BodyCam, Police Report, Incident Reports,
and all other available known requests for data below: 

APPLICATION TO EXAMINE LOCAL ARREST RECORD UNDER CPC 13321 Click Here

Learn About Policy 814: Discovery Requests OCDA Office – Click Here

Request for Proof In-Custody Form Click Here

Request for Clearance Letter Form Click Here

Application to Obtain Copy of State Summary of Criminal HistoryForm Click Here

Request Authorization Form Release of Case Information – Click Here

Texts / Emails AS EVIDENCE: Authenticating Texts for California Courts

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

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

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

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

CPRA Public Records Act Data Request – Click Here

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

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

 

Appealing/Contesting Case/Order/Judgment/Charge/ Suppressing Evidence

First Things First: What Can Be Appealed and What it Takes to Get Started – Click Here

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

Cal. Code Civ. Proc. § 1008 Motion to Reconsider

Penal Code 1385 – Dismissal of the Action for Want of Prosecution or Otherwise

Penal Code 1538.5 – Motion To Suppress Evidence in a California Criminal Case

CACI No. 1501 – Wrongful Use of Civil Proceedings

Penal Code “995 Motions” in California –  Motion to Dismiss

WIC § 700.1 – If Court Grants Motion to Suppress as Evidence

Suppression Of Exculpatory Evidence / Presentation Of False Or Misleading Evidence – Click Here

Notice of Appeal — Felony (Defendant) (CR-120)  1237, 1237.5, 1538.5(m) – Click Here

California Motions in Limine – What is a Motion in Limine?

Cleaning Up Your Record

Penal Code 851.8 PC – Certificate of Factual Innocence in California

Petition to Seal and Destroy Adult Arrest Records – Download the PC 851.8 BCIA 8270 Form Here

SB 393: The Consumer Arrest Record Equity Act – 851.87 – 851.92  & 1000.4 – 11105 – CARE ACT

Expungement California – How to Clear Criminal Records Under Penal Code 1203.4 PC

How to Vacate a Criminal Conviction in California – Penal Code 1473.7 PC

Seal & Destroy a Criminal Record

Cleaning Up Your Criminal Record in California (focus OC County)

Governor Pardons – What Does A Governor’s Pardon Do

How to Get a Sentence Commuted (Executive Clemency) in California

How to Reduce a Felony to a Misdemeanor – Penal Code 17b PC Motion

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At issue in Rosenfeld v. New Jersey (1972) was whether a conviction under state law prohibiting profane language in a public place violated a man's First Amendment's protection of free speech. The Supreme Court vacated the man's conviction and remanded the case for reconsideration in light of its recent rulings about fighting words. The man had used profane language at a public school board meeting. (Illustration via Pixabay, public domain) Epic Parents SCOTUS Ruling – Parental Right$ Help – Click Here

Judge’s & Prosecutor’s Jurisdiction– SCOTUS RULINGS on

Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors

 

Family Treatment Court Best Practice Standards

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The PROPOSED Parental Rights Amendment
to the US CONSTITUTION Click Here to visit their site

The proposed Parental Rights Amendment will specifically add parental rights in the text of the U.S. Constitution, protecting these rights for both current and future generations.

The Parental Rights Amendment is currently in the U.S. Senate, and is being introduced in the U.S. House.

 

]]> SCOTUS Makes It Easier To Sue Police And Prosecutors For Malicious Prosecution https://goodshepherdmedia.net/scotus-makes-it-easier-to-sue-police-and-prosecutors-for-malicious-prosecution/ Thu, 29 Aug 2024 01:25:20 +0000 https://goodshepherdmedia.net/?p=10308

SCOTUS Makes It Easier To Sue Police And Prosecutors For Malicious Prosecution

04/06/2022

On April 4th, 2022, the Supreme Court of the United States (SCOTUS), in the matter of Thompson v. Clark[1], held that for purposes of a Fourth Amendment claim under § 1983 for malicious prosecution, a plaintiff is not required to show that the criminal prosecution ended with an affirmative indication of innocence. Rather, the plaintiff need only show that the prosecution ended without a conviction. A more detailed analysis and discussion of this case is provided below.

FACTS

Larry Thompson lived with his fiancé (now his wife) and his newborn daughter in a Brooklyn apartment. In January 2014, his sister-in-law was also residing in the apartment. In January, the sister-in-law called 911 and claimed that Thompson was sexually abusing his one-week-old daughter. Two emergency medical technicians (EMTs) responded, but when they arrived at the residence, Thompson denied that anyone had contacted 911. The EMTs returned with four police officers, but Thompson told them they could not enter the apartment without a warrant. The police officers entered the apartment and handcuffed Thompson. The EMTs examined the newborn baby and, finding red marks on her body, took her to the hospital to be examined. Medical personnel at the hospital determined the marks were a case of diaper rash and found no signs of abuse.

The officers arrested Thompson for resisting their entry into the apartment and he was taken to the local hospital and then to jail. The officers charged Thompson with “obstructing governmental administration” and “resisting arrest.” Thompson remained in police custody for two days, when a judge released him on his own recognizance.

Before the matter reached trial, the prosecution moved to dismiss the charges and the trial judge dismissed the case. The prosecutor did not provide an explanation as to why she sought to dismiss the charges, and the trial judge did not provide an explanation as to why he dismissed the case.

Thompson brought suit for damages under § 1983 against the police officers who had arrested and charged him, alleging several constitutional violations, including a Fourth Amendment claim for “malicious prosecution.”

Under Second Circuit precedent, to prevail on a claim for malicious prosecution in violation of his 4th Amendment rights, Thompson was required to show that his “criminal prosecution ended not merely without a conviction, but also with some affirmative indication of his innocence.” Since Thompson could offer no explanation as to why the prosecutor moved to dismiss the charges or why the trial judge dismissed the case, he was unable to show that his case ended with an affirmative indication of his innocence. As such, the District Court ruled that Thompson’s criminal case had not ended with an affirmative indication of his innocence and granted judgment to the defendant officers on that Fourth Amendment claim. On appeal, the U.S. Court of Appeals for the Second Circuit affirmed the dismissal of Thompson’s Fourth Amendment claim.

As stated, to maintain such a Fourth Amendment claim under § 1983, a plaintiff must demonstrate, among other things, that they obtained a favorable termination of the underlying criminal prosecution. The primary question the Court analyzed was, what does a favorable termination entail? Is it enough for the plaintiff to show only that their criminal prosecution ended without a conviction? Or, must have plaintiff also demonstrate “that the prosecution ended with an affirmative indication of their innocence, such as an acquittal or dismissal accompanied by a statement from the judge that the evidence was sufficient?” As the various Courts of Appeals have split over how to apply the favorable termination requirement of the Fourth Amendment claim under §1983 for malicious prosecution, the U.S. Supreme Court granted certiorari to resolve the split.

SCOTUS OPINION

When determining the elements of a constitutional claim under § 1983, it is SCOTUS’ practice to first look to the elements of the most analogous tort as of 1871, when § 1983 was enacted, “so long as doing so is consistent with the values and purposes of the constitutional right at issue.” SCOTUS determined that the most analogous tort to the Fourth Amendment claim is malicious prosecution. Courts have described the elements of the malicious prosecution tort as follows: “(1) the suit or proceeding was ‘instituted without any probable cause’; (2) the ‘motive in instituting’ the suit ‘was malicious’, which was often defined in this context as without probable cause and for a purpose other than bringing the defendant to justice; and (3) The prosecution terminated in the ‘acquittal or discharge of the accused.’”

The third element of this tort – what constitutes a “favorable termination of the underlying dispute” – is the focus of SCOTUS’ decision. SCOTUS found that in reviewing court decisions considering the question, American courts as of 1871 were largely in agreement that the “‘technical prerequisite is only that the particular prosecution be disposed of in such a manner’ that it ‘cannot be revived.’” Courts found that a favorable termination can include the dismissal of a matter because it “marked an end to further proceedings against the defendant” on the charges. Likewise, courts held that plaintiffs could maintain a case for malicious prosecution when a prosecutor “abandoned the criminal case” or the court “dismissed the case without providing a reason.” SCOTUS further noted that the “treatises of that era agreed that a favorable termination occurred so long as the prosecution ended without conviction.”

SCOTUS found that “Because the American tort law consensus as of 1871 did not require a plaintiff in a malicious prosecution suit to show that his prosecution ended with an affirmative indication of innocence, we similarly construe the Fourth Amendment claim under § 1983 for malicious prosecution.”

SCOTUS concluded that a Fourth Amendment claim under §1983 for malicious prosecution does not require the plaintiff to show that the criminal prosecution ended with some affirmative indication of innocence. Rather, a plaintiff need only show that the criminal prosecution ended without a conviction. As such, SCOTUS reversed the judgement of the U.S. Court of Appeals for the Second Circuit and remanded for further proceedings consistent with its opinion.

TAKE AWAY

In its decision, SCOTUS explicitly stated that it expressed no view on any additional questions that may be relevant to the matter on remand, including whether Thompson was ever seized as a result of the malicious prosecution, whether he was charged without probable cause, and whether the officers were entitled to qualified immunity.

What does this decision mean for the future of law enforcement? Will the Court’s holding have a chilling effect on an officer’s decision to arrest? Will prosecutors be less willing to dismiss cases prior to trial, when to do so could result in an increase in malicious prosecution cases? While these possible consequences are likely not what the Court intended, they very well could be the end result of such a decision.

During its analysis, SCOTUS opined that its decision would not affect an officer’s protection from unwarranted civil suits as, among other things, officers are still protected by the requirement that the plaintiff show the absence of probable cause and by qualified immunity. What various law enforcement agencies understand, however, is that the concept of qualified immunity has come under attack by legislatures throughout the country. The assurances by SCOTUS that officers have this option available to them does not necessarily instill confidence amongst officers or law enforcement agencies.

Judge Alito filed a Dissenting Opinion in which he stated, “What the court has done is to recognize a novel hybrid claim of uncertain scope that has no basis in the constitution and is almost certain to lead to confusion.” Alito further stated that “the Court claims that the ‘gravamen’ of petitioner’s Fourth Amendment claim is the same as that of a malicious prosecution claim: the ‘wrongful initiation of charges without probable cause.’ . . . But what the court describes is not a Fourth Amendment violation at all. As explained, that amendment protects against ‘unreasonable searches and seizures’ not the ‘unreasonable initiation of charges.’” Alito concluded that “the Court’s recognition of a Fourth Amendment malicious-prosecution claim has no basis in our precedents.”

[1] 596 U.S. ____ (2022)

source

 

SCOTUS Civil Rights Ruling against Police Hailed by BU Faculty

Amicus brief filed by LAW dean and Center for Antiracist Research staff may have played a role in Court’s decision in Thompson v. Clark

The little-known civil rights case started back in 2014. The ruling came in 2022. And when the US Supreme Court decided Thompson v. Clark this week in favor of Larry Thompson, by a 6-3 vote, both the BU School of Law and the BU Center for Antiracist Research (CAR) had cause for joy and relief.

The backstory: in January 2014, Thompson, a Navy veteran and postal worker, was living in Brooklyn with his fiancée, their newborn, and Thompson’s sister-in-law. The baby was a week old when the sister-in-law called 911 to claim that Thompson had sexually abused the infant, pointing to a red rash on the baby’s buttocks as proof. Four officers came to the house and when Thompson refused to let them in without a warrant, they tackled him, pinned him to the floor, and arrested him, with one officer filing criminal complaint charges that he resisted arrest (a charge that was later dropped without any explanation).

But when the hospital said the baby merely had a diaper rash, Thompson, who had spent two days in jail, sued the police under a 150-year-old federal civil rights law, known as Section 1983, that lets citizens sue state officials over violations of their constitutional rights, even after prosecutors drop all charges. He claimed the officers had violated the Fourth Amendment, which prohibits “unreasonable seizures.”

In a BU Today POV last October, Neda Khoshkhoo, CAR assistant director of research and policy, and Caitlin Glass, CAR interim associate director of policy, wrote: “Anyone who cares about deterring racialized police misconduct should watch this case closely.”

In support of Thompson’s argument, LAW Dean Angela Onwuachi-Willig, Glass, Khoshkhoo, Jasmine Gonzales Rose, a School of Law professor of law and CAR deputy director of research and policy, submitted an amicus brief to the Supreme Court, arguing that Thompson’s rights had been violated.

While it’s not known if the amicus brief influenced any of the justices directly, the editor of the Supreme Court Press, which assists with preparing documents for SCOTUS, emailed the brief’s authors: “Congratulations—Your amicus brief was successful. This is a message to the BU team that we worked with on the amicus curiae brief in Thompson v. Clark et al. Your case was reversed and remanded. Amicus briefs are a unique and powerful method for directly interfacing with government on important matters and your voice was heard.”

“When I read the opinion, I felt such joy,” Gonzales Rose says. “A plaintiff bringing a Fourth Amendment claim for malicious prosecution need only show that their prosecution ended without a conviction to have their proverbial day in court! I was also relieved that the majority did not follow Justice Alito’s dissent and allow this case to be an excuse to eliminate malicious prosecution claims.”

BU Today asked Gonzales Rose, Khoshkhoo, and Glass for perspective on the ruling’s importance. They answered together.

Q&A

JASMINE GONZALES ROSE, CAITLIN GLASS, AND NEDA KHOSHKHOO

BU Today: Of all the cases the Supreme Court agrees to hear, why was this particular little-known civil rights case important enough for you to become involved with an amicus brief?

This case has significant implications for racial justice, even though racism was not a focus of the issues presented to the Supreme Court. We saw an opportunity to explain how Mr. Thompson’s case connects to broader issues of racialized police misconduct, and why the “indications-of-innocence” standard is not only nonsensical, but also racist.

The indications-of-innocence standard is part of a web of technical barriers to police accountability that are frequently overlooked and need to be removed—like qualified immunity. We wanted to illustrate why this somewhat complicated and technical legal standard causes real-world harms, particularly for BIPOC [Black, indigenous, people of color].

Given the current conservative 6-3 makeup of the US Supreme Court, did the ruling in Thompson v. Clark surprise you?

You never know what courts will do, but the Court’s ruling should not be a surprise given that the original purpose of Section 1983 was to hold state actors accountable for civil rights violations, and the “indications-of-innocence” standard impeded that purpose.

As the word of this ruling spreads and reaches the level of police departments and prosecutors, how do you hope it will help to change behaviors and relationships between law enforcement and the BIPOC community?

Our hope is that this ruling will help deter racialized police misconduct. We hope that when police officers learn that dismissals no longer foreclose federal civil rights claims regarding false charges, they will think twice before pursuing false charges in the first place.

That said, as noted by Justice [Brett] Kavanaugh in the Thompson v. Clark opinion, officers are still protected by the doctrine of qualified immunity. There are still many procedural hurdles to police accountability, and we plan to keep finding ways to challenge them.

In the case of Larry Thompson, how would this case have unfolded differently if this ruling had been in place?

If the indications-of-innocence standard had not been in place when Mr. Thompson first sought civil redress, his Fourth Amendment malicious prosecution claim could have been adjudicated years ago. Based on the Court’s decision [April 4], hopefully anyone with such a potentially meritorious claim in the future will not have to go through such a lengthy and burdensome process to seek justice.

source

 

Thompson v. Clark – Maliciou$ Prosecution claim under § 42 U.S.C. 1983  Click Here
20-659 Thompson v. Clark (04-04-2022) – Suing the Government 

Learn more about these sujects

  • Malicious Prosecution
  • Prosecutional Misconduct
  • Vindictive Prosecution
  • Retaliatory Prosecution
  • Abuse of Process

Selected Issues in Malicious Prosecution Cases

Malicious Prosecution / Prosecutorial Misconduct

Vindictive Prosecution – Georgetown University

VINDICTIVE AND SELECTIVE PROSECUTION

What is Abuse of Process?

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

What’s the Difference between Abuse of Process and Malicious Prosecution?

 

Malicious Prosecution Actions Arising Out Of Family Law Proceedings: Proceed Carefully

Frivolous, Meritless or Malicious Prosecution

 

SCOTUS Makes It Easier To Sue Police And Prosecutors For Malicious Prosecution

Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors

National District Attorneys Association – National Prosecution Standards – NDDA

What Happens If Charges Are Dropped Before Trial?

Functions and Duties of the Prosecutor – Prosecution Conduct

Possible courses of action Prosecutorial Misconduct

Misconduct by Judges & Prosecutor – Rules of Professional Conduct

PC 1385 – Dismissal of the Action for Want of Prosecution or Otherwise

 

Thomp$on v. Clark – Maliciou$ Pro$ecution 

Reichle v. Howards (2012) – Retaliatory Prosecution Claims Against Government Officials –1st Amendment

People v. Superior Court (Greer) 5th & 8th Amendment – Bias / Malicious Persecutor

Hartman v. Moore (2006) –Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

What is a Fiduciary Duty; Breach of Fiduciary Duty

Epic SCOTUS Decisions

]]> Supreme Court Sides With Trump – Rules ex-presidents have broad immunity https://goodshepherdmedia.net/supreme-court-sides-with-trump-rules-ex-presidents-have-broad-immunity/ Mon, 01 Jul 2024 17:00:59 +0000 https://goodshepherdmedia.net/?p=18326 Supreme Court Sides With Trump – Rules ex-presidents have broad immunity

“Make no mistake,” said Justice Sonia Sotomayor, in a passionate dissent from bench, “the majority gives President Trump all he asks for and more. ….Whether described as presumptive or absolute, under the majority’s rule, a president’s use of any official power for any purpose, even the most corrupt, is immune from prosecution” under this decision, she said.

 


 

The Supreme Court on Monday ruled for the first time that former presidents have broad immunity from prosecution, extending the delay in the Washington criminal case against Donald Trump on charges he plotted to overturn his 2020 presidential election loss and all but ending prospects the former president could be tried before the November election.

In a historic 6-3 ruling, the court’s conservative majority, including the three justices appointed by Trump, narrowed the case against him and returned it to the trial court to determine what is left of special counsel Jack Smith’s indictment.

Trump celebrated a “BIG WIN” on X. President Joe Biden said the justices set “a dangerous precedent (that) undermines the rule of this nation.”

The ruling reflected a muscular view of presidential power, and left dissenting judges to criticize it as undermining a core democratic principle that no person is above the law.

The court’s decision highlighted how the justices have been thrust into an impactful role in the November presidential election. Earlier, they had rejected efforts to bar him from the ballot because of his actions following the 2020 election. The court last week also limited an obstruction charge faced by Trump and used against hundreds of his supporters who stormed the Capitol on Jan. 6, 2021. The split among the justices also in many ways mirrored the political divide in the country.

“Under our constitutional structure of separated powers, the nature of presidential power entitles a former president to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority,”

Chief Justice John Roberts wrote for the court. “And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts.”

Reading from her opinion in the courtroom, Sotomayor said, “Because our Constitution does not shield a former president from answering for criminal and treasonous acts, I dissent.” Sotomayor said the decision “makes a mockery of the principle, foundational to our Constitution and system of government, that no man is above the law.”

The protection afforded presidents by the court, she said, “is just as bad as it sounds, and it is baseless.”

source

Trump posted in all capital letters on his social media network shortly after the decision was released: “BIG WIN FOR OUR CONSTITUTION AND DEMOCRACY. PROUD TO BE AN AMERICAN!”

Biden, in evening remarks from the White House, cited accepted restraints on presidential power all the way back to George Washington and bemoaned that “for all practical purposes, today’s decision almost certainly means that there are virtually no limits on what a president can do.”

Smith’s office declined to comment on the ruling.

Senate Majority Leader Chuck Schumer denounced the ruling as “a disgraceful decision,” made with the help of the three justices that Trump appointed.

“It undermines SCOTUS’s credibility and suggests political influence trumps all in our courts today,” the New York Democrat said on X.

The justices knocked out one aspect of the indictment. The opinion found Trump is “absolutely immune” from prosecution for alleged conduct involving discussions with the Justice Department.

Trump is also “at least presumptively immune” from allegations that he tried to pressure Vice President Mike Pence to reject certification of Democrat Joe Biden’s electoral vote win on Jan. 6, 2021. Prosecutors can try to make the case that Trump’s pressure on Pence still can be part of the case against him, Roberts wrote.

The court directed a fact-finding analysis on one of the more striking allegations in the indictment — that Trump participated in a scheme to enlist fake electors in battleground states won by Biden who would falsely assert that Trump had won. Both sides had dramatically different interpretations as to whether that effort could be construed as official, and the conservative justices said determining which side is correct would require additional analysis at the trial court level.

Roberts’ opinion further restricted prosecutors by prohibiting them from using any official acts as evidence in trying to prove a president’s unofficial actions violated the law. One example not relevant to this case but which came up in arguments was the hypothetical payment of a bribe in return for an ambassadorial appointment.

Under Monday’s decision, a former president could be prosecuted for accepting a bribe, but prosecutors could not mention the official act, the appointment, in their case.

Justice Amy Coney Barrett, who joined the rest of Roberts’ opinion, parted company on this point. “The Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable,” Barrett wrote.

She also described as unnecessary the analysis of the fake electors claim. “I see no plausible argument for barring prosecution of that alleged conduct,” Barrett wrote.

The work of figuring out how to proceed will fall to U.S. District Judge Tanya Chutkan, who would preside over Trump’s trial.

Trump still could face a trial, said Notre Dame law professor Derek Muller. “But the fact remains that it is almost impossible to happen before the election.”

David Becker, an election law expert and the executive director of the nonprofit Center for Election Innovation and Research, called the breadth of immunity granted to Trump “incredibly broad” and “deeply disturbing.”

“Almost anything that a president does with the executive branch is characterized as an official act,” he said on a call with reporters following the ruling. He said that “for any unscrupulous individual holding the seat of the Oval Office who might lose an election, the way I read this opinion is it could be a roadmap for them seeking to stay in power.”

The ruling was the last of the term, and it came more than two months after the court heard arguments, far slower than in other epic high court cases involving the presidency, including the Watergate tapes case.

The Republican former president has denied doing anything wrong and has said this prosecution and three others are politically motivated to try to keep him from returning to the White House.

In May, Trump became the first former president to be convicted of a felony, in a New York court. He was found guilty of falsifying business records to cover up a hush money payment made during the 2016 presidential election to a porn actor who says she had sex with him, which he denies. After Monday’s ruling, Trump’s lawyers asked the New York judge who presided over that trial to set aside his conviction and delay his sentencing. He still faces three other indictments.

Smith is leading the two federal inquiries of the former president, both of which have led to criminal charges. The Washington case focuses on Trump’s alleged efforts to overturn the 2020 election after he lost to Biden. The case in Florida revolves around the mishandling of classified documents. A separate case, in Georgia, also turns on Trump’s actions after his defeat in 2020.

If Trump’s Washington trial does not take place before the 2024 election and he is not given another four years in the White House, he presumably would stand trial soon thereafter.

But if he wins, he could appoint an attorney general who would seek the dismissal of this case and the other federal prosecution he faces. He could also attempt to pardon himself if he reclaims the White House. He could not pardon himself for the conviction in state court in New York.

The Supreme Court that heard the case included three justices appointed by Trump — Neil Gorsuch, Brett Kavanaugh and Barrett — and two justices who opted not to step aside after questions were raised about their impartiality.

Thomas’ wife, Ginni, attended the rally near the White House where Trump spoke on Jan. 6, 2021, though she did not go the Capitol when a huge group of Positve Trump supporters attacked it soon after. Following the 2020 election, she called the outcome a “heist” and exchanged messages with White House chief of staff Mark Meadows, urging him to stand firm with Trump as he falsely claimed that there was widespread election fraud.

Justice Samuel Alito said there was no reason for him to step aside from the cases.  Flags flew above his homes in Virginia and on the New Jersey shore. His wife, Martha-Ann Alito, was responsible for flying both the inverted American flag in January 2021 and the “Appeal to Heaven” banner in the summer of 2023, he said in letters to Democratic lawmakers responding to their recusal demands.

Before the Supreme Court got involved, a trial judge and a three-judge appellate panel had ruled unanimously that Trump could be prosecuted for actions undertaken while in the White House and in the run-up to Jan. 6.

Chutkan ruled against Trump’s immunity claim in December. In her ruling, Chutkan said the office of the president “does not confer a lifelong ‘get-out-of-jail-free’ pass.” source

 

The ruling makes a distinction between official actions of a president, which have immunity, and those of a private citizen. In dissent, the court’s liberals lament a vast expansion of presidential power.

The Supreme Court declared on Monday that former presidents have immunity for their official actions, upending the case against Donald J. Trump over his attempts to subvert his 2020 election loss.

OPINION OF THE COURT

We conclude that under our constitutional structure of separated powers, the nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office. At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is also entitled to immunity. At the current stage of proceedings in this case, however, we need not and do not decide whether that immunity must be absolute, or instead whether a presumptive immunity is sufficient.

Reactions and Highlights of the Supreme Court Decision on Trump’s Immunity – The New York Times

In the majority opinion, written by Chief Justice John G. Roberts Jr., the conservative supermajority explained that Congress has no authority to pass criminal laws regulating powers that the Constitution assigns exclusively to presidents. Where the two branches share overlapping authority, presidents may or may not have immunity depending on whether applying criminal law to those specific facts would dangerously intrude on the functions of the executive branch.

OPINION OF THE COURT

Taking into account these competing considerations, we conclude that the separation of powers principles explicated in our precedent necessitate at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility. Such an immunity is required to safeguard the independence and effective functioning of the Executive Branch, and to enable the President to carry out his constitutional duties without undue caution.

Reactions and Highlights of the Supreme Court Decision on Trump’s Immunity – The New York Times

Justice Sonia Sotomayor, joined by her liberal colleagues, wrote a vehement dissent, portraying the ruling as a sharp expansion of presidential power — not just for Mr. Trump but for all presidents. She cited the famous World War II ruling that upheld the internment of Japanese Americans in the West to invoke the fear that presidents may feel freer to abuse their power.

JUSTICE SOTOMAYOR DISSENT

Looking beyond the fate of this particular prosecution, the long-term consequences of today’s decision are stark. The court effectively creates a law-free zone around the president, upsetting the status quo that has existed since the founding. This new official-acts immunity now ‘lies about like a loaded weapon’ for any president that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the nation.

Reactions and Highlights of the Supreme Court Decision on Trump’s Immunity – The New York Times

At earlier stages of the Trump case, lower court judges had ruled that Mr. Trump had no immunity from prosecution over the allegations in the indictment regardless of whether the acts were official or unofficial. The Supreme Court sent the case back to the Federal District Court judge who would oversee any trial, Tanya S. Chutkan, to conduct that analysis. The majority, however, declared that Mr. Trump is clearly immune from prosecution for his alleged interactions with Justice Department officials in trying to enlist their help in overturning the 2020 election.

OPINION OF THE COURT

Certain allegations — such as those involving Trump’s discussions with the Acting Attorney General — are readily categorized in light of the nature of the President’s official relationship to the office held by that individual. Other allegations — such as those involving Trump’s interactions with the Vice President, state officials, and certain private parties, and his comments to the general public — present more difficult questions. Although we identify several considerations pertinent to classifying those allegations and determining whether they are subject to immunity, that analysis ultimately is best left to the lower courts to perform in the first instance.

Reactions and Highlights of the Supreme Court Decision on Trump’s Immunity – The New York Times

Even as Chief Justice Roberts wrote that a president talking to a vice president counted as an official act, he suggested that it might not qualify for immunity in the context of Mr. Trump’s pressure campaign on his vice president at the time, Mike Pence, to disrupt the certification of Electoral College votes. He noted that Congress has legislated extensively to define the vice president’s role in that task and that the president plays no direct part in it, suggesting that allowing a prosecution based on that act would not unduly impair executive branch functions. By contrast, the chief justice suggested that another context — a president talking to a vice president about casting a tiebreaking 51st vote in the Senate on legislation that is part of the White House’s agenda, for example — more likely would be immune. But he still left that issue to Judge Chutkan to consider.

OPINION OF THE COURT

It is ultimately the government’s burden to rebut the presumption of immunity. We therefore remand to the district court to assess in the first instance, with appropriate input from the parties, whether a prosecution involving Trump’s alleged attempts to influence the vice president’s oversight of the certification proceeding in his capacity as president of the Senate would pose any dangers of intrusion on the authority and functions of the executive branch.

Reactions and Highlights of the Supreme Court Decision on Trump’s Immunity – The New York Times

During oral arguments, a Justice Department lawyer had suggested that even if the court were to rule that presidents are immune for official acts, prosecutors should still be able to introduce evidence about Mr. Trump’s official acts to help the jury understand the unofficial ones that would be the basis of charges. If so, a ruling that presidents have immunity for official actions would not have been particularly disruptive to the case prosecutors want to present to the jury. But in a major victory for Mr. Trump, Chief Justice Roberts’s opinion ruled out letting prosecutors use testimony or records about any official acts that are subject to immunity.

OPINION OF THE COURT

If official conduct for which the president is immune may be scrutinized to help secure his conviction, even on charges that purport to be based only on his unofficial conduct, the ‘intended effect’ of immunity would be defeated.

Reactions and Highlights of the Supreme Court Decision on Trump’s Immunity – The New York Times

One of the court’s six conservatives, Justice Amy Coney Barrett, split from her colleagues on that issue. In a concurring opinion, she said she agreed with the three liberal judges in dissent that prosecutors should be allowed to use such evidence under certain circumstances. As an example, she pointed to a hypothetical bribery case, saying it would “hamstring the prosecution” not to be able to tell the jury about an official act that an ex-president had taken a bribe to perform.

JUSTICE BARRETT CONCURRING IN PART

Yet excluding from trial any mention of the official act connected to the bribe would hamstring the prosecution. To make sense of charges alleging a quid pro quo, the jury must be allowed to hear about both the quid and the quo, even if the quo, standing alone, could not be a basis for the President’s criminal liability.

Reactions and Highlights of the Supreme Court Decision on Trump’s Immunity – The New York Times

In a footnote, Chief Justice Roberts addressed Justice Barrett, saying “of course” prosecutors could tell the jury that a president had taken an official act in a bribery case; they just could not present documents and testimony inviting the jury to scrutinize a president’s motivation and the legitimacy of that official action.

The five-justice majority’s declaration that official actions that are subject to presidential immunity cannot be used as evidence could matter for evidence about the inflammatory speech Mr. Trump delivered to his followers ahead of the Jan. 6 assault on the Capitol or any of his postings on Twitter leading up to the 2021 riot. It is established that speech that is protected by the First Amendment can be used as evidence about a defendant’s related crimes. But while leaving the first crack to Judge Chutkan, Chief Justice Roberts’s opinion raised the possibility that Mr. Trump’s words may count as official actions; and so would apparently be inadmissible at trial.

OPINION OF THE COURT

He is even expected to comment on those matters of public concern that may not directly implicate the activities of the Federal Government — for instance, to comfort the Nation in the wake of an emergency or tragedy. For these reasons, most of a President’s public communications are likely to fall comfortably within the outer perimeter of his official responsibilities. There may, however, be contexts in which the President, notwithstanding the prominence of his position, speaks in an unofficial capacity — perhaps as a candidate for office or party leader. To the extent that may be the case, objective analysis of “content, form, and context” will necessarily inform the inquiry. Snyder v. Phelps, 562 U. S. 443, 453. But “there is not always a clear line between [the President’s] personal and official affairs.” Mazars, 591 U. S., at 868. The analysis therefore must be fact specific and may prove to be challenging. source

]]> Supreme Court Unanimously rules Trump will stay on ballot, overruling states https://goodshepherdmedia.net/supreme-court-unanimously-rules-trump-will-stay-on-ballot-overruling-states/ Mon, 04 Mar 2024 18:41:57 +0000 https://goodshepherdmedia.net/?p=17263 Supreme Court rules unanimously for Trump in Colorado ballot disqualification dispute

Supreme Court decision to affect more than 30 states that have considered challenges to remove Trump from 2024 ballot

Supreme Court rules Trump will stay on ballot, overruling states

President Donald Trump will remain on the ballot this election year after the U.S. Supreme Court on Monday unanimously overruled a ruling issued by the Colorado Supreme Court.

The ruling means Trump will face President Joe Biden in November! 3/4/2024

What did the Supreme Court say?

In the 9-0 ruling, the justices cited several reasons to overturn the Colorado decision, including the idea that one state or a few states could determine the national election.

“The ‘patchwork’ that would likely result from state enforcement would ‘sever the direct link that the Framers found so critical between the National Government and the people of the United States’ as a whole,” they wrote in the unsigned opinion.

Ultimately, the justices determined that Congress, not the states, has the power to implement the 14th Amendment, which is the clause of the Constitution cited in the Colorado case that was adopted after the Civil War to prevent former officeholders who “engaged in insurrection” from holding office again.

“…the text of the Fourteenth Amendment, on its face, does not affirmatively delegate such a power to the States. The terms of the Amendment speak only to enforcement by Congress,” they stated.

Supreme Court Hands Trump a Big Win in Colorado Ballot Case

The U.S. Supreme Court gave former President Donald Trump a major victory on Monday, ruling that he cannot be disqualified from Colorado’s Republican primary ballot under the 14th Amendment.

The historic ruling derails a broad effort to keep Trump from even qualifying for the 2024 presidential election, one that sought to hold him accountable for inspiring his MAGA supporters to attack Congress on Jan. 6, 2021, in a bald-faced attempt to remain in the White House after losing that election.

“BIG WIN FOR AMERICA!!!” Trump immediately responded in a post on his Truth Social media network.

The highest court in the land issued its decision per curiam, meaning that all nine justices agreed on a basic premise: Allowing a state to unilaterally take this kind of sweeping action would create chaos. Instead, they concluded, this kind of forceful act citing Section 3 of the 14th Amendment should come at the federal level.

“Permitting state enforcement of Section 3 against federal officeholders and candidates would raise serious questions about the scope of that power,” they wrote in an unsigned opinion.

The justices all expressed a serious concern with the fallout of what they called a “patchwork” approach, one that could fuel partisan hack jobs against enemy candidates and destroy the orderliness of the current presidential primary system across the nation.

“The result could well be that a single candidate would be declared ineligible in some states, but not others, based on the same conduct (and perhaps even the same factual record),” they wrote.

Justices Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor joined together in a separate concurrence to clarify why they thought this latest effort could cause harm.

“In this case, the court must decide whether Colorado may keep a presidential candidate off the ballot on the ground that he is an oathbreaking insurrectionist and thus disqualified from holding federal office under Section 3 of the Fourteenth Amendment. Allowing Colorado to do so would, we agree, create a chaotic state-by-state patchwork, at odds with our Nation’s federalism principles,” the trio wrote.

Justice Amy Coney Barrett, a Trump appointee, authored her own separate section of the opinion in which she acknowledged the dramatic tensions surrounding the timing of the court’s decision. After all, the court is weighing in just one day before Trump is set to appear on primary ballots in 15 states, including Colorado and the much larger and more influential California and Texas.

“Writings on the court should turn the national temperature down, not up. For present purposes, our differences are far less important than our unanimity: All nine justices agree on the outcome of this case. That is the message Americans should take home,” she wrote.

The court over the weekend indicated that one case would be decided Monday, taking the unusual decision of issuing an opinion on a day when the court isn’t in session. Rulings are usually issued from the bench, with summaries of their opinions read in the courtroom. The next court day is not scheduled to take place until March 15.

This ruling marks the end of a case that highlighted yet another constitutional crisis Trump has brought upon the nation. When federal prosecutors failed to charge him criminally for inciting the Jan. 6 attack on Congress, voting rights activists felt compelled to use this civil route as a means to bar him from office. In Colorado, the mission failed in its initial phase at a local trial court in November but later won when it was overturned by the state’s supreme court. It was that state’s high court decision that ultimately traveled to the U.S. Supreme Court, where it has now been reversed.

Under Section 3 of the 14th Amendment, which was ratified after the Civil War, any “officer of the United States” who has sworn an oath to support the Constitution who is then found to have “engaged in insurrection or rebellion” is barred from holding public office. The 4-3 ruling from the Colorado Supreme Court was the first time in U.S. history that the constitutional provision had been used as a means of disqualifying a presidential candidate.

Maine and Illinois similarly barred Trump from their primary ballots following similar legal challenges to his candidacy. All of the rulings were placed on hold while Trump appealed the Colorado decision to the U.S. Supreme Court, however, which in turn fast-tracked the case.

The high court’s justices were widely expected to rule in Trump’s favor based on questioning during oral arguments in the case last month. Conservative and liberal justices alike expressed concerns about individual states having the ability to disqualify candidates in national elections, with little of the discussion actually pertaining to the Jan. 6 attack or the role that Trump played in its instigation.

However, these justices will be making yet another monumental decision that relates to Trump’s aspirations of a political comeback this year. They will soon be weighing in on Department of Justice Special Counsel Jack Smith’s wider criminal case against Trump for trying to interfere in the 2020 election by spreading lies and coordinating an effort to employ fake electors that would erase his loss at the polls.

Last week, the Supreme Court separately agreed to hear arguments in April concerning whether or not Trump can be prosecuted on election interference charges. Trump claims that he is immune for actions that he took as president, and his lawyers have sought to delay a trial on the charges until after the election. The high court is expected to rule before the end of its term in late June or early July, possibly creating a situation in which the leading Republican presidential candidate will be on trial for election interference at the height of election season in November. source

 

 

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]]> Counterman v. Colorado – Supreme Court sets higher bar for prosecuting threats under First Amendment https://goodshepherdmedia.net/supreme-court-sets-higher-bar-for-prosecuting-threats-under-first-amendment/ Sun, 28 Jan 2024 08:11:13 +0000 https://goodshepherdmedia.net/?p=15532 Counterman v. Colorado – Supreme Court sets higher bar for prosecuting threats under First Amendment

justices raising the bar for establishing when a statement is a “true threat” not protected by the 1st Amendment.

Holding: To establish that a statement is a “true threat” unprotected by the First Amendment, the state must prove that the defendant had some subjective understanding of the statements’ threatening nature, based on a showing no more demanding than recklessness.

Judgment: Vacated and remanded, 7-2, in an opinion by Justice Kagan on June 27, 2023. Justice Sotomayor filed an opinion concurring in part and concurring in the judgment, in which Justice Gorsuch joined as to Parts I, II, III-A, and III-B. Justice Thomas filed a dissenting opinion. Justice Barrett filed a dissenting opinion, in which Justice Thomas joined.

Washington — The Supreme Court on Tuesday sided with a Colorado man who was convicted of a crime after sending numerous threatening messages to a woman on Facebook, with the justices raising the bar for establishing when a statement is a “true threat” not protected by the First Amendment.

The high court divided 7-2 in the case of Counterman v. Colorado, with Justices Clarence Thomas and Amy Coney Barrett in dissent. The court wiped away a Colorado Court of Appeals’ ruling that upheld the conviction of Billy Counterman and sent the case back for further proceedings consistent with its opinion.

Writing for the majority, Justice Elena Kagan said prosecutors must demonstrate that a defendant who made a threat acted recklessly — that is, with the knowledge that others could regard their statement as threatening violence — to establish that the speech is a “true threat” and thus no longer covered by the First Amendment.

“The question presented is whether the First Amendment still requires proof that the defendant had some substantive understanding of the threatening nature of his statements,” she wrote. “We hold that it does, but that a mental state of recklessness is sufficient. The state must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”

Counterman was prosecuted under a standard requiring the state to show only that a “reasonable person” would understand the messages as threats. The majority found that violated the First Amendment.

“[The state] did not have to show any awareness on his part that the statements could be understood that way. For the reasons stated, that is a violation of the First Amendment,” Kagan wrote.

In a dissenting opinion written by Barrett, which Thomas joined, the justice said the majority’s decision “unjustifiably grants true threat preferential treatment.”

“A delusional speaker may lack awareness of the threatening nature of her speech; a devious speaker may strategically disclaim such awareness; and a lucky speaker may leave behind no evidence of mental state for the government to use against her,” Barrett wrote.

Counterman, she concluded, “communicated true threats” and caused the recipient of the messages, a singer-songwriter named Coles Whalen, to fear for her life.

“Nonetheless, the court concludes that Counterman can prevail on a First Amendment defense,” Barrett said. “Nothing in the Constitution compels this result.”

The case arose from hundreds of Facebook messages Counterman sent to Whalen between 2014 and 2016. Some of the messages were innocuous, while others were more troubling. Whalen tried to block Counterman, but he created multiple accounts to continue sending them. 

In one, Counterman wrote, “F**k off permanently,” while in another, he wrote, “I’ve tapped phone lines before. What do you fear?” According to court filings, a third read, “You’re not being good for human relations. Die. Don’t need you.”

Whalen believed Counterman’s messages were threatening her life and she was worried she would get hurt. She had issues sleeping, suffered from anxiety, stopped walking alone and even turned down performances out of fear that Counterman was following her.

She eventually turned to the authorities and obtained a protective order, after which Colorado law enforcement arrested Counterman and charged him with stalking under a Colorado law that prohibits “repeatedly making any form of communication with another person” in a manner that would “cause a reasonable person to suffer serious emotional distress and does cause that person … to suffer serious emotional distress.”

Conviction under the law requires proof that the speaker “knowingly” made repeated communications, and does not require the person to be aware that the acts would cause “a reasonable person to suffer serious emotional distress.”

Before his trial, Counterman sought to dismiss the charge, arguing that his messages were not “true threats” and therefore protected speech under the First Amendment. But the state trial court found that his messages reached the level of a true threat, and the First Amendment did not preclude his prosecution. A jury then found Counterman guilty, and he was sentenced to four-and-a-half years in prison.

Counterman appealed, arguing the trial court erred when it applied an objective standard for determining whether his messages constituted true threats. He said the court should instead adopt a “subjective intent” requirement, which required the state to show he was aware of the threatening nature of his communications.

But the Colorado Court of Appeals upheld his conviction and agreed with the trial court’s finding that Counterman’s Facebook messages were “true threats” and not protected by the First Amendment. The state supreme court declined to review the case.

The ACLU, which filed a brief in support of Counterman, cheered the decision, saying in a statement that the high court affirmed that “inadvertently threatening speech cannot be criminalized.”

“In a world rife with misunderstandings and miscommunications, people would be chilled from speaking altogether if they could be jailed for failing to predict how their words would be received,” said Brian Hauss, senior staff attorney with the organization’s Speech, Privacy, & Technology Project. “The First Amendment provides essential breathing room for public debate by requiring the government to demonstrate that the defendant acted intentionally or recklessly.”

ACLU Commends Supreme Court Decision to Protect Free Speech in Case Defining True Threats

In Counterman v. Colorado, the court ruled that the First Amendment requires the government to show recklessness in true threats prosecutions.

WASHINGTON – The Supreme Court ruled today in Counterman v. Colorado that in true threats cases the First Amendment requires the government to prove that the defendant acted with a culpable mental state, and not merely that his words were objectively threatening.

Colorado law allowed individuals to be convicted if a reasonable person would perceive their words as threatening, regardless of the speaker’s intent. Today’s decision rules that the First Amendment requires the government to show at a minimum that the defendant recklessly disregarded a substantial risk that his words could be perceived as threatening. The court holds that a recklessness standard strikes the right balance between free expression and safety, “offering ‘enough “breathing space” for protected speech,’ without sacrificing too many of the benefits of enforcing laws against true threats.”

“We’re glad the Supreme Court affirmed today that inadvertently threatening speech cannot be criminalized,” said Brian Hauss, senior staff attorney with the American Civil Liberties Union’s Speech, Privacy, & Technology Project. “In a world rife with misunderstandings and miscommunications, people would be chilled from speaking altogether if they could be jailed for failing to predict how their words would be received. The First Amendment provides essential breathing room for public debate by requiring the government to demonstrate that the defendant acted intentionally or recklessly.”

This case involved a series of disturbing messages that the petitioner, Billy Raymond Counterman, sent to C.W., a professional musician in Colorado, over a two-year period. Counterman was prosecuted and convicted under Colorado’s anti-stalking statute. On appeal, Counterman — who has been diagnosed with a mental illness — argued that his conviction was unconstitutional because the jury was not required to find that he intended to threaten C.W.

The ACLU and its partners filed an amicus brief in the case arguing that a great deal of speech — including political speech, satire, and artistic speech — contains overt or implicit references to violence that could be interpreted as threatening. Without requiring some element of intentional wrongdoing, the ACLU argued, there exists a significant risk that people will be convicted of serious felonies because they failed to adequately anticipate how their words would be perceived.

Counterman v. Colorado is a part of the ACLU’s Joan and Irwin Jacobs Supreme Court Docket. The amicus brief was filed with the ACLU of Colorado, the Abrams Institute for Freedom of Expression, the National Association of Criminal Defense Lawyers, and the National Coalition Against Censorship.

Supreme Court Decides Counterman v. Colorado

On June 27, 2023, the U.S. Supreme Court decided Counterman v. Colorado, No. 22-138, holding that a criminal prosecution based on a true threat of violence requires proof that the defendant subjectively understood the threatening character of the statement such that making the statement was at least reckless.

Between 2014 and 2016, Billy Counterman persistently sent hundreds of unwelcome messages through Facebook to a local musician, creating new accounts to circumvent her attempts to block them. The musician interpreted many of the messages as indicators that Counterman was surveilling her and intended to harm her. Colorado state prosecutors criminally charged Counterman for his behavior, and the Facebook messages themselves were the only evidence presented at trial. Counterman claimed his messages fell within the protections of the First Amendment because they could not be “true threats” if he did not have a subjective understanding that the messages were threatening. The Colorado trial and appellate courts rejected his argument and ruled that “true threats” were subject only to an objective reasonableness standard.

The Supreme Court reversed. While the Court agreed that “true threats of violence” are not protected speech under the First Amendment, the Court held that a court must apply a subjective test to determine if a statement is in fact a true threat of violence. The Court held that this subjective standard is required to avoid a chilling effect on otherwise protected speech. The Court noted that the “ordinary citizen’s predictable tendency” is to steer very wide of speech that may be considered unlawful. The Court held that a subjective standard was necessary to balance the public interest in avoiding unnecessary chilling of lawful speech and the ability of prosecutors to criminally charge defendants for unlawful speech.

The Court then analyzed what level of subjective knowledge is sufficient to accomplish that balance. The Court compared the law governing other non-protected classes of speech, including defamation, and determined that a reckless state of mind is sufficient—i.e., a defendant who consciously disregards a substantial risk that statements would be understood as a true threat may be prosecuted. The Court also concluded that any mens rea requirement higher than recklessness—like purpose or knowledge—would make prosecution too difficult, and “with diminishing returns for protected expression.” To balance the risk of chilling public speech and the need to be able to prosecute true threats of violence, the Court ruled that prosecutors must prove that defendants recklessly made threatening statements.

Justice Kagan authored the opinion of the Court. Justice Sotomayor authored a concurrence in which Justice Gorsuch joined in part. Justice Thomas authored a dissent. Justice Barrett authored a dissent in which Justice Thomas joined.

Volume 30, Issue 5

This Report summarizes an opinion issued on January 23 (Part I); and cases granted review on December 27, 2022, and January 13, 2023 (Part II).

Opinion: Counterman v. Colorado, 22-138

Counterman v. Colorado, 22-138. The Court will clarify the standard for determining whether a statement is a true threat unprotected by the First Amendment. Most federal courts of appeals apply an objective test that asks whether a reasonable person would interpret the statement as a threat of violence. By contrast, the Ninth and Tenth Circuits employ a subjective test that asks whether the speaker intended the recipient to feel threatened. State courts are similarly divided, with some applying a hybrid test that considers both the speaker’s subjective intent and whether a reasonable person would view the statement as a threat. This is the second time that the Court has agreed to address this split. The issue was presented in Elonis v. United States, 575 U.S. 723 (2015), but the Court ultimately resolved that case on a different basis.

The issue here arises in the context of a criminal prosecution for stalking. Over the course of two years, petitioner Billy Raymond Counterman directly messaged a local musician on Facebook without invitation or response. Some of the messages suggested that he was physically surveilling her, while others told her to “Die” and “Fuck off permanently.” Counterman’s messages caused the victim to fear for her safety, so she told her family and police. Relying on 17 messages, Colorado charged him with stalking. Under Colorado law, prosecutors did not need to prove that Counterman intended his statements to be threatening or that he was aware that they could be interpreted that way. Counterman moved to dismiss the charge on First Amendment grounds, arguing that his messages were not true threats and thus were protected speech. The trial court denied the motion and a jury found Counterman guilty of stalking. The Colorado Court of Appeals affirmed Counterman’s conviction. 497 P.3d 1039. In holding that Counterman’s statements were true threats subject to criminal prosecution, the Colorado Court of Appeals applied the objective test that asks whether a reasonable person would view the statements as threatening. The court of appeals rejected Counterman’s argument that a speaker’s subjective intent to threaten is necessary for a statement to constitute a true threat, noting that the Colorado Supreme Court recently rejected that rule absent further guidance from the U.S. Supreme Court. The Colorado Supreme Court later denied Counterman’s petition for review.

Relying on history, tradition, and U.S. Supreme Court precedent, Counterman argues in his petition that “heightened scienter is necessary to true threats.” He notes that, generally, consciousness of wrongdoing is required for a criminal conviction. A scienter requirement is especially important for a statute that regulates speech, Counterman contends, because convicting “a person for negligently misjudging how others would construe the speaker’s words would erode the breathing space that safeguards the free exchange of ideas.” Counterman submits that a purely objective test for true threats conflicts with the Court’s true threats jurisprudence, including Virginia v. Black, 538 U.S. 343 (2003). There, the Court stated that true threats “encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” (Emphasis added.) Counterman relies on this language to argue that the Court has already imposed a heightened scienter requirement for true threats. He also points out that in incitement cases, the Court has required proof that the speaker intended to produce imminent disorder. See Hess v. Indiana, 414 U.S. 105, 109 (1973) (per curiam).

Colorado argues that its objective test for true threats is consistent with the Court’s free speech jurisprudence. It compares its “context-driven objective standard” to the Court’s analysis in Watts v. United States, 394 U.S. 705 (1969). There, in holding that the speaker’s comments at a rally were not true threats subject to criminal prosecution, the Court focused on the plain language of the statements, the context in which they were made, and the listeners’ reaction. Colorado’s test similarly examines “the contested expression’s context, including the listeners’ reaction.” In Colorado’s view, the Court in Black did not subsequently adopt a subjective-intent requirement for true threats. It reads Black as simply identifying one circumstance where a speaker makes a true threat, namely when he communicates with the intent to threaten the recipient. Colorado maintains that Black did not “state that true threats were limited to such statements.” Colorado also contends that an objective test is especially important to protect victims of stalking because stalkers may be delusional, thereby making it difficult for prosecutors to prove a subjective intent to threaten. And because its objective test considers the context in which the statements were made, Colorado submits that speakers will be protected from unfair punishment.

Facts of the case

Billy Raymond Counterman repeatedly contacted a person over Facebook in 2014, sending her “creepy” messages from numerous different accounts even after she repeatedly blocked him. Some of the messages implied that Counterman was watching her and saying that he wanted her to die or be killed. She reported Counterman to law enforcement, who arrested him in 2016. He was charged with one count of stalking (credible threat), one count of stalking (serious emotional distress, and one count of harassment; before trial, the prosecution dismissed the count of stalking (credible threat).

Counterman claimed that the remaining charges, as applied to his Facebook messages, would violate his right to free speech under the  First Amendment because they were not “true threats.” The trial court denied his motion to dismiss, and a jury found him guilty of stalking (serious emotional distress). The Colorado Court of Appeals affirmed his conviction.

US Supreme Court makes decision on Counterman v. Colorado

The justices considered whether a stalker’s intent in contacting his victim must be a factor when determining if a statement is a “true threat.”

WASHINGTON, D.C., USA — The Supreme Court ruled Tuesday to make it more difficult to convict a person of making a violent threat, including against the president or other elected officials.

The Biden administration had warned that the internet and social media have expanded the number and kinds of threats in recent years, including online harassment, intimidation and stalking. And they warned the case could affect the ability to prosecute threats against public officials, which have increased in recent years.

The high court was ruling in a case that involves a man who was sentenced to more than four years in prison in Colorado for sending threatening Facebook messages. The man’s lawyers had argued that he suffers from mental illness and never intended his messages to be threatening.

The question for the court was whether prosecutors must show that a person being prosecuted for making a threat knew their behavior was threatening or whether prosecutors just have to prove that a reasonable person would see it as threatening.

Justice Elena Kagan wrote for a majority of the court that prosecutors have to show that “the defendant had some subjective understanding of the threatening nature of his statements.”

“The State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence,” she said.

Seven justices agreed with the outcome. Two conservative justices, Clarence Thomas and Amy Coney Barrett, dissented.

The Biden administration had been among those arguing for the lower “reasonable person” standard.

“Threats of violence against public officials in particular have proliferated in recent years, including threats against Members of Congress, judges, local officials, and election workers,” the Biden administration had noted, saying the case could affect prosecutions in those cases.

Speech of all kinds is generally protected by the free speech clause in the Constitution’s First Amendment, but so-called “true threats” are an exception.

The specific case before the justices involved Billy Counterman. He contacted a musician through Facebook in 2010 to ask her whether she would perform in a benefit concert he said he was organizing. The woman, Coles Whalen, responded but nothing ever came of it.

Whalen forgot about the exchange, but four years later, Counterman began sending her Facebook messages again. He ultimately sent hundreds of messages, including ones that were rambling and delusional and others that were quotes and memes. Whalen never responded and blocked Counterman several times, but he would just create a new account and continue sending messages.

Counterman believed Whalen was responding through other websites and Facebook pages. Whalen became concerned after Counterman’s messages — including “You’re not being good for human relations. Die. Don’t need you.” and “Was that you in the white Jeep?” — suggested he was following her in person. Eventually, the messages were reported to law enforcement and Counterman was arrested. He was convicted and lost an appeal.

The justices’ ruling is a victory for Counterman and sends his case back to lower courts for another look. In a statement, his attorney John Elwood said that they are “gratified that the Supreme Court agreed with Billy Counterman that the First Amendment requires proof of mental state before it can imprison a person for statements that are perceived as threatening.”

Colorado Attorney General Phil Weiser, whose office prosecuted Counterman, said in a statement that the decision will make it “more difficult to stop stalkers from tormenting their victims.”

“In today’s ruling, the Court creates a loophole for delusional and devious stalkers and misapprehends the very nature of threats faced by stalking victims,” Weiser said. “In short, this decision will make it more likely that victims of threats— mostly women — will live in fear and will be discouraged from speaking out against their stalkers, believing there is little they can do to hold those stalkers accountable.”

The case is Counterman v. Colorado, 22-138.

Opinion of the Court Counterman v. Colorado

source 1  source 2  source 3  source 4 source 5 source 6 source 7

]]> Right to Travel freely – U.S. SUPREME COURT https://goodshepherdmedia.net/right-to-travel-freely-u-s-supreme-court/ Mon, 25 Dec 2023 08:00:26 +0000 https://goodshepherdmedia.net/?p=16558 Right to Travel freely – U.S. SUPREME COURT

Due Process Cause of the 14th amendment (which applies to the states)

Due Process Clause of the 5th amendment (which applies to the federal government)

AND OTHER HIGH COURT CITATIONS PROVING NO LICENSE IS NECESSARY FOR NORMAL USE OF AN AUTOMOBILE ON  common ways.

“The right of a citizen to travel upon the public highways and to transport his property thereon, by horsedrawn carriage, wagon, or automobile, is not a mere privilege which may be permitted or prohibited at will, but a common right which he has under his right to life, liberty and the pursuit of happiness. Under this constitutional guaranty one may, therefore, under normal conditions, travel at his inclination along the public highways or in public places, and while conducting himself in an orderly and decent manner, neither interfering with nor disturbing another’s rights, he will be protected, not only in his person, but in his safe conduct.“ Thompson v. Smith, 154 SE 579, 11 American Jurisprudence, Constitutional Law, Section 329, Page 1135.

“The right of the citizen to travel upon the public highways and to transport his property thereon, in the ordinary course of life and business, is a common right which he has under the right to enjoy life and liberty, to acquire and possess property, and to pursue happiness and safety.  It includes the right, in so doing, to use the ordinary and usual conveyances of the day, and under the existing modes of travel, includes the right to drive a horse drawn carriage or wagon thereon or to operate an automobile thereon, for the usual and ordinary purpose of life and business.” – Thompson vs. Smith, supra.; Teche Lines vs. Danforth, Miss., 12 S.20 784.

“… The right of the citizen to drive on a public street with freedom from police interference… Is a fundamental constitutional right” – White, 97 Cal.App.3d.141, 158 Cal.Rptr. 562, 566 – 67 (1979).

“Citizens have a right to drive upon the public streets of the District of Columbia or any other city absent a constitutionally sound reason for limiting their access.” Caneisha Mills v. D.C. 2009.

“The use of the automobile as a necessary adjunct to the earning of a livelihood in modern life requires us in the interest of realism to conclude that the right to use an automobile on the public highways partakes of the nature of a liberty within the meaning of the constitutional guarantees…” Berberian v. Lussier (1958) 139 a2d 869, 672, see also: Schecter v. Killingsworth, 380 p.20136, 140; 93 Ariz. 273 (1963).

“The right to operate a motor vehicle [an automobile] upon the public streets and highways 15 not a mere privilege. It is a right of liberty, the enjoyment of which is protected by the guarantees of the federal and state constitutions.” Adams v. City of Pocatello, 416 p.2d 46, 48; 91 Idaho 99 (1966).

“A traveler has an equal right to employ an automobile as a means of transportation and to occupy the public highways with other vehicles in common use.” Campbell v. Walker, 78 Atl. 601, 603, 2 Boyce (Del.) 41.

“The owner of an automobile has the same right as the owner of other vehicles to use the highway, a traveler on foot has the same right to the use of the public highways as an automobile or any other vehicle.” Simeone v. Lindsay, 65 Atl. 778, 779; Hannigan v. Wright, 63 Atl. 234, 236.

“The right of the citizen to drive on the public street with freedom from police interference, unless he is engaged in suspicious conduct associated in some manner with criminality is a Fundamental constitutional right which must be protected by the courts.“ People v. Horton 14 Cal. App. 3rd 667 (1971).

“The right to make use of an automobile as a vehicle of travel long the highways of the state, is no longer an open question. The owners thereof have the same rights in the roads and streets as the drivers of horses or those riding a bicycle or traveling in some other vehicle.” House v. Cramer, 112 N.W. 3; 134 Iowa 374; Farnsworth v. Tampa electric co. 57 so. 233, 237, 62 Fla. 166.

“The automobile may be used with safety to others users of the highway, and in its proper use upon the highways there is an equal right with the users of other vehicles properly upon the highways. The law recognizes such right of use upon general principles.” Brinkman v Pacholike, 84 N.E. 762, 764, 41 Ind. App. 662, 666.

“The law does not denounce motor carriages, as such, on public ways. They have an equal right with other vehicles in common use to occupy the streets and roads. It is improper to say that the driver of the horse has rights in the roads superior to the driver of the automobile. Both have the right to use the easement.” Indiana Springs Co. V. Brown, 165 Ind. 465, 468.

“A highway is a public way open and free to any one who has occasion to pass along it on foot or with any kind of vehicle.” Schlesinger v. City of Atlanta, 129 S.E. 861, 867, 161 Ga. 148,159; Holland v. Shackelford, 137 S.E. 2d 298, 304, 220 Ga. 104; Stavola v. Palmer, 73 a.2d 831, 838,136 Conn. 670.

“There can be no question of the right of automobile owners to occupy and use the public streets of cities, or highways in the rural districts.” Liebrecht v. Crandall, 126 N.W. 69, 110 Minn. 454, 456.

“The word ‘automobile’ connotes a pleasure vehicle designed for the transportation of persons on highways.” – American Mutual Liability Ins. Co. vs. Chaput, 60 A.2d 118, 120; 95 NH 200.

Saenz v. Roe, 526 U.S. 489, 498, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999). The constitutional right to travel “embraces at least three different components”:

[1] the right of a citizen of one State to enter and to leave another State,

[2] the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and

[3] for those travelers who elect to be permanent residents, the right to be treated like other citizens of that State.

A law only implicates this right when it actually deters such travel, when impeding travel is its primary objective, or when it uses any classification which serves to penalize the exercise of that right.

 

ArtIV.S2.C1.13 Right to Travel and Privileges and Immunities Clause

Article IV, Section 2, Clause 1:

“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”

In Saenz v. Roe, the Court characterized the constitutional right to travel as having at least three different components:

It protects:
[1]the right of a citizen of one State to enter and to leave another State,
[2] the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and,
[3] for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.4

Footnotes

  1.  Jump to essay-1See, e.g., Ward v. Maryland, 79 U.S. 418, 430 (1870) ([The Privileges and Immunities] clause plainly and unmistakably secures and protects the right of a citizen of one State to pass into any other State of the Union . . . .); Paul v. Virginia, 75 U.S. 168, 180 (1868) (stating that the Privileges and Immunities Clause includes the right of free ingress into other States, and egress from them), overruled on other grounds by United States v. S.-E. Underwriters Ass’n, 322 U.S. 533 (1944); see generally United States v. Guest, 383 U.S. 745, 762–67 (1966) (Harlan, J., concurring in part and dissenting in part) (surveying cases).
  2.  Jump to essay-2See Guest, 383 U.S. at 759 (Although there have been recurring differences in emphasis within the Court as to the source of the constitutional right of interstate travel, there is no need here to canvass those differences further. All have agreed that the right exists.).
  3.  Jump to essay-3Doe v. Bolton, 410 U.S. 179, 200 (1973), abrogated on other grounds by Dobbs v. Jackson Women’s Health Org., No. 19-1393 (U.S. June 24, 2022).
  4.  Jump to essay-4526 U.S. 489, 500 (1999) (numbering added).
  5.  Jump to essay-5Id. at 501 (citing Articles of Confederation of 1781 art. IV, § 1).
  6.  Jump to essay-6Id. at 501–502.
  7.  Jump to essay-7Id. at 502–03 (citing U.S. Const. amend. XIV, § 1). The Commerce Clause is another potential textual basis for the right to travel. See Guest, 383 U.S. at 758 (citing Edwards v. California, 314 U.S. 160, 173 (1941)).
  8. source

Amdt14.S1.8.13.2 Interstate Travel as a Fundamental Right

Fourteenth Amendment, Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The doctrine of the right to travel actually encompasses three separate rights, of which two have been notable for the uncertainty of their textual support. The first is the right of a citizen to move freely between states, a right venerable for its longevity, but still lacking a clear doctrinal basis.1 The second, expressly addressed by the first sentence of Article IV, provides a citizen of one state who is temporarily visiting another state the Privileges and Immunities of a citizen of the latter state.2 The third is the right of a new arrival to a state, who establishes citizenship in that state, to enjoy the same rights and benefits as other state citizens. This right is most often invoked in challenges to durational residency requirements, which require that persons reside in a state for a specified period before taking advantage of the benefits of that state’s citizenship.

Footnotes

  1.  Jump to essay-1Saenz v. Roe, 526 U.S. 489 (1999). For the purposes of this case, we need not identify the source of [the right to travel] in the text of the Constitution. The right of ‘free ingress and regress to and from’ neighboring states which was expressly mentioned in the text of the Articles of Confederation, may simply have been ‘conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created.’ Id. at 501 (citations omitted).
  2.  Jump to essay-2Paul v. Virginia, 75 U.S. (8 Wall.) 168 (1869) (without some provision . . . removing from citizens of each State the disabilities of alienage in other States, and giving them equality of privilege with citizens of those States, the Republic would have constituted little more than a league of States; it would not have constituted the Union which now exists.).
  3. source

What other rights and freedoms relate to the right to freedom of movement?

The right to freedom of movement may also be relevant to:

  • the right to liberty and security under article 9 of the ICCPR
  • the right to participate in public life under article 25 of the ICCPR
  • the right to peaceful assembly under article 21 of the ICCPR
  • the right to freedom of association under article 22 of the ICCPR
  • the right to privacy under article 17 of the ICCPR
  • the conditions for expulsion of aliens in article 13 of the ICCPR.

Articles from relevant Conventions

International Covenant on Civil and Political Rights

Article 12

  • Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
  • Everyone shall be free to leave any country, including his own.
  • The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.
  • No one shall be arbitrarily deprived of the right to enter his own country.

See also: ICCPR article 13; CRC article 10; CRPD article 18; CERD article 5; CEDAW article 15.

Motor Vehicle: 18 USC Part 1 Chapter 2 Section 31 Definitions:

“(6) Motor vehicle. – the term ‘motor vehicle’ means every description of carriage or other contrivance propelled or drawn by mechanical power and used for commercial purposes on the highways…” .
“10) the term ‘used for commercial purposes’ means the carriage of persons or property for any fare, fee, rate, charge or other consideration, or directly or indirectly in connection with any business, or other undertaking intended for profit.
“A motor vehicle or automobile for hire is a motor vehicle, other than an automobile stage, used for the transportation of persons for which remuneration is received.” – International Motor Transit Co. Vs. Seattle, 251 p. 120.
“The term ‘motor vehicle’ is different and broader than the word ‘automobile.'” – City of Dayton vs. Debrosse, 23 NE.2d 647, 650; 62 Ohio App. 232.
“Thus self – driven vehicles are classified according to the use to which they are put rather than according to the means by which they are propelled” – Ex Parts Hoffert, 148 NW 20.
“The Supreme Court, in Arthur v. Morgan, 112 U.S. 495, 5 S.Ct. 241, 28 L.ed. 825, held that carriages were properly classified as household effects, and we see no reason that automobiles should not be similarly disposed of.” Hillhouse v United States, 152 f. 163, 164 (2nd Cir. 1907).
“… A citizen has the right to travel upon the public highways and to transport his property thereon…” State vs. Johnson, 243 p. 1073; Cummins vs. Homes, 155 p. 171; Packard vs. Banton, 44 S.Ct. 256; Hadfield vs. Lundin, 98 wash 516, Willis vs. Buck, 263 p. L 982; Barney vs. Board of railroad commissioners, 17 P.2d 82.
“The use of the highways for the purpose of travel and transportation is not a mere privilege, but a common and fundamental right of which the public and the individual cannot be rightfully deprived.” Chicago motor coach vs. Chicago, 169 NE 22; Ligare vs. Chicago, 28 ne 934; Boon vs. Clark, 214 SSW 607; 25 Am.Jur. (1st) Highways Sect.163.
“The right of the citizen to travel upon the highway and to transport his property thereon in the ordinary course of life and business… 15 the usual and ordinary right of the citizen, a right common to all.” – Ex Parte Dickey, (Dickey vs. Davis), 85 SE 781.
“Every citizen has an unalienable right to make use of the public highways of the state; every citizen has full freedom to travel from place to place in the enjoyment of life and liberty.” People v. Nothaus, 147 Colo. 210.
“No state government entity has the power to allow or deny passage on the highways, byways, nor waterways… Transporting his vehicles and personal property for either recreation or business, but by being subject only to local regulation i.e., safety, caution, traffic lights, speed limits, etc. Travel is not a privilege requiring licensing, vehicle registration, or forced insurances.” Chicago Coach Co. V. City of Chicago, 337 Ill. 200, 169 N.E. 22.
“Traffic infractions are not a crime.” People v. Battle.
“Persons faced with an unconstitutional licensing law which purports to require a license as a prerequisite to exercise of right… May ignore the law and engage with impunity in exercise of such right.” Shuttlesworth v. Birmingham 394 U.S. 147 (1969).
“The word ‘operator’ shall not include any person who solely transports his own property and who transports no persons or property for hire or compensation:” Statutes at Large California Chapter 412 p.83.
“Highways are for the use of the traveling public, and all have the right to use them in a reasonable and proper manner; the use thereof is an inalienable right of every citizen.” Escobedo v. State 35 C2d 870 IN 8 Cal Jur 3d p.27.
“Right – – a legal right, a Constitutional Right means a Right protected by the law, by the constitution, but government does not create the idea of right or original rights; it acknowledges them… ” Bouvier’s Law Dictionary, 1914, p. 2961.
“Those who have the right to do something cannot be licensed for what they already have right to 00 as such license would be meaningless.” City of Chicago v Collins 51 NE 907, 910.
“A license means leave to do a thing which the licensor could prevent.” Blatz Brewing Co. V. Collins, 160 P.2d 37, 39; 69 Cal. A. 2. 639.
“The object of a license is to confer a right or power, which does not exist without it.” Payne v. Massey (19) 196 SW 2nd 493, 145 Tex 273.
“The court makes it clear that a license relates to qualifications to engage in profession, business, trade or calling; thus, when merely traveling without compensation or profit, outside of business enterprise or adventure with the corporate state, no license is required of the natural individual traveling for personal business, pleasure and transportation.” Wingfield v. Fielder 20 ca. 3d 213 (1972).
“If [state] officials construe a vague statute unconstitutionally, the citizen may take them at their word, and act on the assumption that the statute is void.” – Shuttlesworth v. Birmingham 394 U.S. 147 (1969).
“With regard particularly to the U.S. Constitution, it is elementary that aright 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.
“The right to travel (called the right of free ingress to other states, and egress from them) is so fundamental that it appears in the articles of confederation, which governed our society before the constitution.” (Paul v. Virginia).
“[T]he right to travel freely from state to state … Is a right broadly assertable against private interference as well as governmental action. Like the right of association, it is a virtually unconditional personal right, guaranteed by the constitution to us all.” (U.S. Supreme Court, Shapiro v. Thompson).
Edgerton, Chief Judge: “Iron curtains have no place in a free world… ‘Undoubtedly the right of locomotion, the right to remove from one place to another according to inclination, is an attribute of personal liberty, and the right, ordinarily, of free transit from or through the territory of any state is a right secured by the constitution.” Williams v. Fears, 179 U.S. 270, 274, 21 S.Ct. 128, 45 L.ed. 186.
“Our nation has thrived on the principle that, outside areas of plainly harmful conduct, every American is left to shape his own life as he thinks best, do what he pleases, go where he pleases.” Id., at 197. Kent vs. Dulles see Vestal, Freedom of Movement, 41 Iowa L. Rev. 6, 13 – 14.
“The validity of restrictions on the freedom of movement of particular individuals, both substantively and procedurally, is precisely the sort of matter that is the peculiar domain of the courts.” comment, 61 Yale L.J. at page 187.
“A person detained for an investigatory stop can be questioned but is “not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest.” Justice White, Hiibel.
“Automobiles have the right to use the highways of the state on an equal footing with other vehicles.” Cumberland Telephone & Telegraph Co. v. Yeiser 141 Kentucky 15.
“Each citizen has the absolute right to choose for himself the mode of conveyance he desires, whether it be by wagon or carriage, by horse, motor or electric car, or by bicycle, or astride of a horse, subject to the sole condition that he will observe all those requirements that are known as the law of the road.” Swift v City of Topeka, 43 Kansas 671, 674.
The Supreme Court said in U.S. v Mersky (1960) 361 U.S. 431: an administrative regulation, of course, is not a “statute”.
“A traveler on foot has the same right to use of the public highway as an automobile or any other vehicle.” Cecchi v. Lindsay, 75 Atl. 376, 377, 1 Novae (Del.) 185.
“Automotive vehicles are lawful means of conveyance and have equal rights upon the streets with horses and carriages.” Chicago Coach Co. v. City of Chicago, 337 Ill. 200, 205; see also: Christy v. Elliot, 216 Ill. 31; Ward v. Meredith, 202 Ill. 66; Shinkle v. McCullough, 116 Ky. 960; Butler v. Cabe, 116 Ark. 26, 28 – 29.
“Automobiles are lawful vehicles and have equal rights on the highways with horses and carriages.” Daily v. Maxwell, 133 S.W. 351, 354. Matson v. Dawson, 178 N.W. 2d 589, 591.
“A farmer has the same right to the use of the highways of the state, whether on foot or in a motor vehicle, as any other citizen. Draffin v. Massey, 92 S.E.2d 38, 42.
“Persons may lawfully ride in automobiles, as they may lawfully ride on bicycles.” Doherty v. Ayer, 83 N.E. 677,197 Mass. 241, 246; Molway v. City of Chicago, 88 N.E. 485, 486, 239 Ill. 486; Smiley v. East St Louis Rv. Co., 100 N.E. 157, 158.
“A soldier’s personal automobile is part of his ‘household goods[.]” U.S. V Bomar, C.A.S.(Tex.), 8 F.3d 226, 235″ 19A Words and Phrases – Permanent Edition (West) Pocket Part 94. “[it is a jury question whether … an automobile … is a motor vehicle[.]” United States v Johnson, 718 F.20 1317, 1324 (5th Cir. 1983).
Other right to use an automobile cases:

  • Edwards vs. California, 314 U.S. 160
  • Twinng vs New Jersey, 211 U.S. 78
  • Williams vs. Fears, 179 U.S. 270, at 274
  • Crandall vs. Nevada, 6 Wall. 35, at 43 – 44
  • The Passenger Cases, 7 Howard 207, at 492
  • U.S. vs. Guest, 383 U.S. 745, At 757 – 758 (1966)
  • Griffin vs. Breckenridge, 403 U.S. 88, at105 – 106 (1971)
  • Califano vs. Tors, 435 U.S. 1, At 4, Note 6   – Shapiro vs. Thompson, 324 U.S. 618 (1969)
  • Alifano vs. Aznavavorian, 439 U.S. 170 At 176 (1978)

source

READ UP MORE….. on Malicious Prosecution and Thompson Vs. Clark and other SCOTUS Rulings here

Footnotes

  1. Saenz v. Roe, 526 U.S. 489 (1999). For the purposes of this case, we need not identify the source of [the right to travel] in the text of the Constitution. The right of “free ingress and regress” to and from neighboring states which was expressly mentioned in the text of the Article of Confederation, may simply have been ‘conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created.’ Id. at 501 (citations omitted).
  2. Paul v. Virginia, 75 U.S. (8 Wall.) 168 (1869) (without some provision . . . removing from citizens of each State the disabilities of alienage in other States, and giving them equality of privilege with citizens of those States, the Republic would have constituted little more than a league of States; it would not have constituted the Union which now exists.).
  3. Saenz v. Roe, 526 U.S. 489, 502–03 (1999).
  4. Dunn v. Blumstein, 405 U.S. 330, 334 (1972). Because the right to travel is implicated by state distinctions between residents and nonresidents, the relevant constitutional provision is the Privileges and Immunities Clause, Article IV, § 2, cl. 1.
  5. Intrastate travel is protected to the extent that the classification fails to meet equal protection standards in some respect. Compare Hadnott v. Amos, 320 F. Supp. 107 (M.D. Ala. 1970) (three-judge court), aff’d. per curiam, 405 U.S. 1035 (1972), with Arlington County Bd. v. Richards, 434 U.S. 5 (1977). The same principle applies in the commerce clause cases, in which discrimination may run against in-state as well as out-of-state concerns. Cf. Dean Milk Co. v. City of Madison, 340 U.S. 349 (1951).
  6. Shapiro v. Thompson, 394 U.S. 618, 629–31, 638 (1969); Dunn v. Blumstein, 405 U.S. 330, 338–42 (1972); Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974); Jones v. Helms, 452 U.S. 412, 420–21 (1981). See also Oregon v. Mitchell, 400 U.S. 112, 236–39 (1970) (Justices Brennan, White, and Marshall), and id. at 285–92 (Justices Stewart and Blackmun and Chief Justice Burger).
  7. Shapiro v. Thompson, 394 U.S. 618, 634 (1969) (emphasis by Court); Graham v. Richardson, 403 U.S. 365, 375–76 (1971).
  8. Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1868); Edwards v. California, 314 U.S. 160 (1941) (both cases in context of direct restrictions on travel). The source of the right to travel and the reasons for reliance on the Equal Protection Clause are questions puzzled over and unresolved by the Court. United States v. Guest, 383 U.S. 745, 758, 759 (1966), and id. at 763–64 (Justice Harlan concurring and dissenting), id. at 777 n.3 (Justice Brennan concurring and dissenting); Shapiro v. Thompson, 394 U.S. 618, 629–31 (1969), and id. at 671 (Justice Harlan dissenting); San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 31–32 (1973); Jones v. Helms, 452 U.S. 412, 417–19 (1981); Zobel v. Williams, 457 U.S. 55, 60 & n.6 (1982), and id. at 66–68 (Justice Brennan concurring), 78-81 (Justice O’Connor concurring).
  9. 394 U.S. 618 (1969).
  10. The durational residency provision established by Congress for the District of Columbia was also voided. 394 U.S. at 641–42.
  11. 394 U.S. at 627–33. Gaddis v. Wyman, 304 F. Supp. 717 (N.D.N.Y. 1969), aff’d sub nom. Wyman v. Bowens, 397 U.S. 49 (1970), struck down a provision construed so as to bar only persons who came into the state solely to obtain welfare assistance.
  12. 394 U.S. at 633–38. Shapiro was reaffirmed in Graham v. Richardson, 403 U.S. 365 (1971) (striking down durational residency requirements for aliens applying for welfare assistance), and in Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974) (voiding requirement of one year’s residency in the county as a condition to indigent’s receiving nonemergency hospitalization or medical care at county’s expense). When Connecticut and New York reinstituted the requirements, pleading a financial emergency as the compelling state interest, they were summarily rebuffed. Rivera v. Dunn, 329 F. Supp. 554 (D. Conn. 1971), aff’d per curiam, 404 U.S. 1054 (1972); Lopez v. Wyman, Civ. No. 1971-308 (W.D.N.Y. 1971), aff’d per curiam, 404 U.S. 1055 (1972). The source of the funds, state or federal, is irrelevant to application of the principle. Pease v. Hansen, 404 U.S. 70 (1971).
  13. 405 U.S. 330 (1972). But see Marston v. Lewis, 410 U.S. 679 (1973), and Burns v. Fortson, 410 U.S. 686 (1973). Durational residency requirements of five and seven years respectively for candidates for elective office were sustained in Kanapaux v. Ellisor, 419 U.S. 891 (1974), and Sununu v. Stark, 420 U.S. 958 (1975).
  14. For additional discussion of durational residence as a qualification to vote, see Voter Qualifications, supra.
  15. Saenz v. Roe, 526 U.S. 489, 505 (1999).
  16. 419 U.S. 393 (1975). Justices Marshall and Brennan dissented on the merits. Id. at 418.
  17. 419 U.S. at 409. But the Court also indicated that the plaintiff was not absolutely barred from the state courts, but merely required to wait for access (which was true in the prior cases as well and there held immaterial), and that possibly the state interests in marriage and divorce were more exclusive and thus more immune from federal constitutional attack than were the matters at issue in the previous cases. The Court also did not indicate whether it was using strict or traditional scrutiny.
  18. Starns v. Malkerson, 326 F. Supp. 234 (D. Minn. 1970), aff’d per curiam, 401 U.S. 985 (1971). Cf. Vlandis v. Kline, 412 U.S. 441, 452 & n.9 (1973), and id. at 456, 464, 467 (dicta). In Memorial Hospital v. Maricopa County, 415 U.S. 250, 256 (1974), the Court, noting the results, stated that some waiting periods . . . may not be penalties and thus would be valid.
  19. Saenz v. Roe, 526 U.S. at 505.
  20. Zobel v. Williams, 457 U.S. 55 (1982). Somewhat similar was the Court’s invalidation on equal protection grounds of a veterans preference for state employment limited to persons who were state residents when they entered military service; four Justices also thought the preference penalized the right to travel. Attorney General of New York v. Soto-Lopez, 476 U.S. 898 (1986).
  21. La Tourette v. McMaster, 248 U.S. 465 (1919), upholding a two-year residence requirement to become an insurance broker, must be considered of questionable validity. Durational periods for admission to the practice of law or medicine or other professions have evoked differing responses by lower courts.
  22. E.g., McCarthy v. Philadelphia Civil Service Comm’n, 424 U.S. 645 (1976) (ordinance requiring city employees to be and to remain city residents upheld). See Memorial Hospital v. Maricopa County, 415 U.S. 250, 255 (1974). See also Martinez v. Bynum, 461 U.S. 321 (1983) (bona fide residency requirement for free tuition to public schools).
  23. Jones v. Helms, 452 U.S. 412 (1981) (statute made it a misdemeanor to abandon a dependent child but a felony to commit the offense and then leave the state).

 

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

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

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

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

Learn More About True Threats Here below….

We also have the The Brandenburg v. Ohio (1969) – 1st Amendment

CURRENT TEST = We also have the The ‘Brandenburg test’ for incitement to violence – 1st Amendment

We also have the The Incitement to Imminent Lawless Action Test– 1st Amendment

We also have the True Threats – Virginia v. Black is most comprehensive Supreme Court definition – 1st Amendment

We also have the Watts v. United States – True Threat Test – 1st Amendment

We also have the Clear and Present Danger Test – 1st Amendment

We also have the Gravity of the Evil Test – 1st Amendment

We also have the Elonis v. United States (2015) – Threats – 1st Amendment

Learn More About What is Obscene…. be careful about education it may enlighten you

We also have the Miller v. California – 3 Prong Obscenity Test (Miller Test) – 1st Amendment

We also have the Obscenity and Pornography – 1st Amendment

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Anti-SLAPP Law in California

Freedom of Assembly – Peaceful Assembly – 1st Amendment Right

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

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

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

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

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

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

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

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

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

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

Sanctions and Attorney Fee Recovery for Bad Actors

FAM § 3027.1 – Attorney’s Fees and Sanctions For False Child Abuse Allegations – Family Code 3027.1 – Click Here

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Awarding Discovery Based Sanctions in Family Law Cases – Click Here

FAM § 2030 – Bringing Fairness & Fee Recovery – Click Here

Zamos v. Stroud – District Attorney Liable for Bad Faith Action – Click Here

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Fighting Discovery Abuse in Litigation – Forensic & Investigative Accounting – Click Here

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The Ethical Obligations of Prosecutors in Cases Involving Postconviction Claims of Innocence

ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

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Why Judges, District Attorneys or Attorneys Must Sometimes Recuse Themselves

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DUE PROCESS READS>>>>>>

Due Process vs Substantive Due Process learn more HERE

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“Unfriending” Evidence – 5th Amendment

At the Intersection of Technology and Law

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so if you are interested in learning about Introducing Digital Evidence in California State Courts
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What is Probable Cause? and.. How is Probable Cause Established?

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Penal Code 135 PC – Destroying or Concealing Evidence

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ARE PEOPLE LYING ON YOU?
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Penal Code 118 PC – California Penalty of “Perjury” Law

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Spencer v. Peters– Police Fabrication of Evidence – 14th Amendment

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Complete and submit the Government Claim Form, including the required $25 filing fee or Fee Waiver Request, and supporting documents, to the GCP.

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Taken from the UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA Forms source

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CACI No. 1501 – Wrongful Use of Civil Proceedings

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Suppression Of Exculpatory Evidence / Presentation Of False Or Misleading Evidence – Click Here

Notice of Appeal — Felony (Defendant) (CR-120)  1237, 1237.5, 1538.5(m) – Click Here

California Motions in Limine – What is a Motion in Limine?

Petition for a Writ of Mandate or Writ of Mandamus (learn more…)

Retrieving Evidence / Internal Investigation Case 

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Orange County Data, BodyCam, Police Report, Incident Reports,
and all other available known requests for data below: 

APPLICATION TO EXAMINE LOCAL ARREST RECORD UNDER CPC 13321 Click Here

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Request for Proof In-Custody Form Click Here

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Application to Obtain Copy of State Summary of Criminal HistoryForm Click Here

Request Authorization Form Release of Case Information – Click Here

Texts / Emails AS EVIDENCE: Authenticating Texts for California Courts

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

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

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

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

CPRA Public Records Act Data Request – Click Here

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

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

Police BodyCam Footage Release

Electronic Audio Recording Request of OC Court Hearings

Cleaning Up Your Record

Tossing Out an Inferior Judgement – When the Judge Steps on Due Process – California Constitution Article VI – Judicial Section 13

Penal Code 851.8 PC – Certificate of Factual Innocence in California

Petition to Seal and Destroy Adult Arrest Records – Download the PC 851.8 BCIA 8270 Form Here

SB 393: The Consumer Arrest Record Equity Act – 851.87 – 851.92  & 1000.4 – 11105 – CARE ACT

Expungement California – How to Clear Criminal Records Under Penal Code 1203.4 PC

How to Vacate a Criminal Conviction in California – Penal Code 1473.7 PC

Seal & Destroy a Criminal Record

Cleaning Up Your Criminal Record in California (focus OC County)

Governor Pardons –What Does A Governor’s Pardon Do

How to Get a Sentence Commuted (Executive Clemency) in California

How to Reduce a Felony to a Misdemeanor – Penal Code 17b PC Motion

PARENT CASE LAW 

RELATIONSHIP WITH YOUR CHILDREN &
YOUR CONSTITUIONAL RIGHT$ + RULING$

YOU CANNOT GET BACK TIME BUT YOU CAN HIT THOSE IMMORAL NON CIVIC MINDED PUNKS WHERE THEY WILL FEEL YOU = THEIR BANK

Family Law Appeal – Learn about appealing a Family Court Decision Here

9.3 Section 1983 Claim Against Defendant as (Individuals) — 14th Amendment this CODE PROTECT$ all US CITIZEN$

Amdt5.4.5.6.2 – Parental and Children’s Rights“> – 5th Amendment this CODE PROTECT$ all US CITIZEN$

9.32 – Interference with Parent / Child Relationship – 14th Amendment this CODE PROTECT$ all US CITIZEN$

California Civil Code Section 52.1
Interference with exercise or enjoyment of individual rights

Parent’s Rights & Children’s Bill of Rights
SCOTUS RULINGS FOR YOUR PARENT RIGHTS

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Child’s Best Interest in Custody Cases

Are You From Out of State (California)?  FL-105 GC-120(A)
Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

Learn More:Family Law Appeal

Necessity Defense in Criminal Cases

Can You Transfer Your Case to Another County or State With Family Law? – Challenges to Jurisdiction

Venue in Family Law Proceedings

GRANDPARENT CASE LAW 

Do Grandparents Have Visitation Rights? If there is an Established Relationship then Yes

Third “PRESUMED PARENT” Family Code 7612(C) – Requires Established Relationship Required

Cal State Bar PDF to read about Three Parent Law –
The State Bar of California family law news issue4 2017 vol. 39, no. 4.pdf

Distinguishing Request for Custody from Request for Visitation

Troxel v. Granville, 530 U.S. 57 (2000) – Grandparents – 14th Amendment

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

9.32 Particular Rights – Fourteenth Amendment – Interference with Parent / Child Relationship

Child’s Best Interest in Custody Cases

When is a Joinder in a Family Law Case Appropriate? – Reason for Joinder

Joinder In Family Law Cases – CRC Rule 5.24

GrandParents Rights To Visit
Family Law Packet OC Resource Center
Family Law Packet SB Resource Center

Motion to vacate an adverse judgment

Mandatory Joinder vs Permissive Joinder – Compulsory vs Dismissive Joinder

When is a Joinder in a Family Law Case Appropriate?

Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848

Punsly v. Ho (2001) 87 Cal.App.4th 1099

Zauseta v. Zauseta (2002) 102 Cal.App.4th 1242

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

Ian J. v. Peter M

Family Treatment Court Best Practice Standards

Download Here this Recommended Citation

 Epic Criminal / Civil Right$ SCOTUS Help – Click Here

At issue in Rosenfeld v. New Jersey (1972) was whether a conviction under state law prohibiting profane language in a public place violated a man's First Amendment's protection of free speech. The Supreme Court vacated the man's conviction and remanded the case for reconsideration in light of its recent rulings about fighting words. The man had used profane language at a public school board meeting. (Illustration via Pixabay, public domain) Epic Parents SCOTUS Ruling – Parental Right$ Help – Click Here

Judge’s & Prosecutor’s Jurisdiction– SCOTUS RULINGS on

Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors

Please take time to learn new UPCOMING 

The PROPOSED Parental Rights Amendment
to the US CONSTITUTION Click Here to visit their site

The proposed Parental Rights Amendment will specifically add parental rights in the text of the U.S. Constitution, protecting these rights for both current and future generations.

The Parental Rights Amendment is currently in the U.S. Senate, and is being introduced in the U.S. House.

 

 

]]> Supreme Court unanimously reaffirms: There is “NO HATE SPEECH’ exception to the First Amendment https://goodshepherdmedia.net/supreme-court-unanimously-reaffirms-there-is-no-hate-speech-exception-to-the-first-amendment/ Mon, 14 Aug 2023 19:15:12 +0000 https://goodshepherdmedia.net/?p=15518 Supreme Court unanimously reaffirms: There is “NO HATE SPEECH’ exception to the First Amendment

The dispute began when Simon Tam, lead singer of the rock group “The Slants,” sought to register the name of his band. Tam and his bandmates, who are all of Asian descent, chose the name in order to “reclaim” the term and drain its denigrating force as a derogatory term for Asian persons.

today’s opinion by Justice Samuel Alito (for four justices) in Matal v. Tam, the “Slants” case:

[The idea that the government may restrict] speech expressing ideas that offend … strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.”

Justice Anthony Kennedy wrote separately, also for four justices, but on this point the opinions agreed:

A law found to discriminate based on viewpoint is an “egregious form of content discrimination,” which is “presumptively unconstitutional.” … A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.

And the justices made clear that speech that some view as racially offensive is protected not just against outright prohibition but also against lesser restrictions. In Matal, the government refused to register “The Slants” as a band’s trademark, on the ground that the name might be seen as demeaning to Asian Americans. The government wasn’t trying to forbid the band from using the mark; it was just denying it certain protections that trademarks get against unauthorized use by third parties. But even in this sort of program, the court held, viewpoint discrimination — including against allegedly racially offensive viewpoints — is unconstitutional. And this no-viewpoint-discrimination principle has long been seen as applying to exclusion of speakers from universities, denial of tax exemptions to nonprofits, and much more. source

There Is No Such Thing as ‘Hate Speech’

Yes, that is correct. “Hate speech” is not a category of speech recognized under current constitutional law. It is merely a convenient way to pigeonhole speech that some people find offensive. But what is very troubling is when people begin to treat “hate speech” as unprotected speech. For example, a student leader at Penn State, a university which was recently sued for its unconstitutionally vague and overbroad speech codes, made the following comment featured in a prominent article in the student newspaper The Daily Collegian:

“We support any and all university policies that prohibit intolerant actions against any student on this campus,” said Watson, adding that hate speech was not protected by the constitution. [Emphasis added.]

Unfortunately, this is not the first time that a statement like this has been made. This belief has become somewhat pervasive, especially on college campuses, making it high time to put this fundamentally false and dangerous belief to rest.

There is no constitutional exception for so-called hate speech. The First Amendment fully protects speech that some may find offensive, unpopular, or even racist. The First Amendment allows you to wear a jacket that says “Fuck the Draft” in a public building (see Cohen v. California, 403 U.S. 15), yell “We’ll take the fucking street later!” during a protest (see Hess v. Indiana, 414 U.S. 105), burn the American flag in protest (Texas v. Johnson, 491 U.S. 397 and United States v. Eichman, 496 U.S. 310), and even give a racially charged speech to a restless crowd (see Terminello v. Chicago, 337 U.S. 1). You can even, consistent with the First Amendment, call for the overthrow of the United States government (see Brandenburg v. Ohio, 395 U.S. 444). This is not a recent development in constitutional law—these cases date back to 1949.<

The U.S. Supreme Court stated the general rule regarding protected speech quite well in Texas v. Johnson, when it held:

The government may not prohibit the verbal or nonverbal expression of an idea merely because society finds the idea offensive or disagreeable.

Federal courts have consistently followed this holding when applying the First Amendment to public universities. While invalidating sanctions placed on a fraternity for holding an “ugly woman contest,” a federal district court in Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University, 993 F.2d 386, held:

The First Amendment does not recognize exceptions for bigotry, racism, and religious intolerance or ideas or matters some may deem trivial, vulgar or profane.

Furthermore, federal courts have consistently used this concept in striking down college speech codes that regulate offensive or unpopular language (for examples, see Doe v. University of Michigan, 721 F. Supp. 852, UWM Post, Inc., v. Board of Regents of University of Wisc., 774 F. Supp. 1163, and Bair v. Shippensburg Univ., 280 F. Supp. 2d 357). The law is so consistent that not one college speech code challenged in federal court has ever been left standing.

As you can see, it is settled law that public universities, in order to be consistent with the First Amendment, cannot regulate or suppress speech based upon its content, even when it is offensive, vulgar, profane, or unpopular. A university, especially one run with our tax dollars, should be a marketplace of ideas where open and vigorous discourse is encouraged and not suppressed by crafty speech codes and the threat of disciplinary sanctions.

Make sure to check out FIRE’s Guide to Free Speech on Campus for an excellent resource on this subject. source

Matal v. Tam: Supreme Court Invalidates Lanham Act Section Prohibiting “Disparaging” Trademarks

Matal v. Tam, No. 15–1293 (June 19, 2017)

The Slants

For many years, 15 U.S.C. § 1052(a) prevented the registration of any federal trademark that “may disparage … persons, living or dead, institutions, beliefs, or national symbols.” While trademark practitioners and courts have long debated the metes and bounds of this prohibition on “disparaging” marks, the United States Supreme Court just drastically simplified the issue in Matal v. Tam, striking down the prohibition as a violation of the First Amendment.

Factual Summary

In Tam, an Asian-American plaintiff had attempted to obtain a federal trademark on the name of his band “The Slants,” which he chose “in order to ‘reclaim’ the term and drain its denigrating force as a derogatory term for Asian persons.” When the registration was denied based upon § 1052(a), Tam took the matter all the way to the Supreme Court.

The Majority Opinion

In a unanimous opinion, the Supreme Court held that § 1052(a) “offends a bedrock First Amendment principle” — that “[s]peech may not be banned on the ground that it expresses ideas that offend.” Citing the inherent dangers of government picking winners and losers in the marketplace of ideas, the Court pushes back at the idea that trademarks, governing commerce, are meaningfully less expressive than copyrights, and thus any less worthy of being protected against censorship of ideas: “It is true that the necessary brevity of trademarks limits what they can say,” the Court writes. “But powerful messages can sometimes be conveyed in just a few words.” Moreover, “[t]he commercial market is well stocked with merchandise that disparages prominent figures and groups, and the line between commercial and non-commercial speech is not always clear, as this case illustrates.” Thus, the Court warns that, “[i]f affixing the commercial label permits the suppression of any speech that may lead to political or social ‘volatility,’ free speech would be endangered.”

For this same reason, the Court declines to extend a line of precedent concerning “government speech” to categorize the grant of a trademark as the imprimatur of the government itself. “If private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints.” Moreover, “if trademarks represent government speech, what does the Government have in mind when it advises Americans to ‘make.believe’ (Sony), ‘Think different’ (Apple), ‘Just do it’ (Nike), or ‘Have it your way’ (Burger King)? Was the Government warning about a coming disaster when it registered the mark ‘EndTime Ministries’?” Framed this way, the Court (in both the majority and concurrence) makes clear that the Trademark Office approving a registration endorses the registrant’s right to source identity in the marketplace and nothing more.

Concurring Opinions

In a concurring opinion joined by half of the Court, Justice Kennedy “explains in greater detail why the First Amendment’s protections against viewpoint discrimination apply to the trademark here” and further contends “that the viewpoint discrimination rationale renders unnecessary any extended treatment of other questions raised by the parties.” Kennedy notes “[i]t is telling that the Court’s precedents have recognized just one narrow situation in which viewpoint discrimination is permissible: where the government itself is speaking or recruiting others to communicate a message on its behalf” or, as a subset of this doctrine, “situations where private speakers are selected for a government program to assist the government in advancing a particular message” — neither of which apply to the issues presented by § 1052(a).

Finally, a one-page concurrence from the ever-cantankerous Justice Thomas notes his personal belief that all attempts by the government to restrict truthful speech warrant strict (rather than intermediate) scrutiny, regardless of whether or not the speech is commercial. While a moot issue for the purposes of the case, since § 1052(a) did not even survive intermediate scrutiny, this is clearly an evergreen point of contention for the Justice.

Conclusion

By invalidating § 1052(a)’s disparagement clause under the First Amendment, the Supreme Court has opened up a wider range of trademarks to be submitted to and accepted by the Trademark Office. While social mores may ultimately curb the use of arguably disparaging marks in the marketplace, Tam has helped ensure that the federal government will no longer play a part in that decision-making process.

]]> California Supreme Court Rules: Text Messages Sent on Private Government Employees Lines Subject to Open Records Requests https://goodshepherdmedia.net/california-supreme-court-rules-text-messages-sent-on-private-government-employees-lines-subject-to-open-records-requests/ Mon, 29 May 2023 12:19:16 +0000 https://goodshepherdmedia.net/?p=10425

Supreme Court Case Regarding Disclosure of Records Contained in Private Accounts

 

On March 2, 2017, the California Supreme Court, in City of San Jose v. Superior Court of Santa Clara County (Smith),[1] held that “when a city employee uses a personal account to communicate about the conduct of public business, the writings may be subject to disclosure under the California Public Records Act (CPRA or Act).” This decision provides a definitive determination on this issue that will significantly impact public agencies.

Factual Background

In 2009, Ted Smith made a CPRA request to the City of San Jose (“City”), seeking 32 categories of public records involving specified persons and issues related to redevelopment efforts in downtown San Jose. Included in the request were requests for voicemails, emails, and text messages sent or received on private electronic devices used by the mayor, members of the city council, and their staffs. The City disclosed communications made using City telephone numbers and email accounts, but did not disclose communications made using the individuals’ personal accounts, taking the position that such items were not “public records” subject to the CPRA.

Smith filed a lawsuit for declaratory relief, arguing that the CPRA’s definition of “public records” encompasses all communications about official business, regardless of how they are created, communicated or stored. The City argued that messages communicated through personal accounts are not public records because they are not within the public entity’s custody or control.

The trial court granted summary judgment in favor of Smith, ordering disclosure of the records sought. The Court of Appeal issued a writ of mandate overturning the trial court’s order, and the Supreme Court granted review.

The Supreme Court’s Decision

After noting that the CPRA and California Constitution strike a careful balance between public access and personal privacy, the Court stated that the issue was narrow: “Are writings concerning the conduct of public business beyond CPRA’s reach merely because they were sent or received using a nongovernmental account?” The Court concluded the answer is no — employees’ communications relating to official agency business may be subject to the CPRA regardless of the account utilized in their preparation or transmission. Of course, applicable exemptions (e.g. privacy, the deliberative process privilege, and the statutory exemptions in Government Code §§ 6254 and 6255) continue to apply.

The Court explained that the CPRA’s definition of “public record,”[2] has four aspects: (1) it is “a writing, (2) with content relating to the conduct of the people’s business, which is (3) prepared by, or (4) owned, used, or retained by any state or local agency.”

  1. Writing

After setting forth the CPRA’s definition of “writing”[3] and noting that, at the time the CPRA was enacted writings were generally made on paper or another tangible medium, the Court explained that, today, electronic communication, such as email, text messaging, and other electronic platforms, permit writings to be prepared, exchanged and stored more quickly and easily.

  1. Relating to the Conduct of the People’s Business

Next, the Court explained that the second aspect of the definition of “public records” establishes a framework for distinguishing between work-related and purely private communications. Pursuant to the CPRA, the Court noted, to qualify as a public record, a writing must “contain [] information relating to the conduct of the people’s business.” Since the question of whether a writing is sufficiently related to public business is not always clear, the Court explained that resolution of the question, especially when writings are kept in personal accounts, would involve an examination of several factors, such as the content itself, the context in or the purpose for which it was written, the audience to whom the writing was directed, and whether the writing was prepared by an employee acting or purporting to act within the scope of his or her employment.

Although the content of specific records was not before the Court, it clarified that, “to qualify as a public record under the CPRA, at a minimum, a writing must relate in some substantive way to the conduct of the people’s business” noting that, although the standard is broad, it “is not so elastic as to include every piece of information the public may find interesting. Communications that are primarily personal, containing no more than incidental mentions of agency business, generally will not constitute public records.”

  1. Prepared by Any State or Local Agency

Third, the Court held that a writing is “prepared by” the agency even if the writing is prepared using the employee’s personal account.  In other words, a document can be a public record, even if it is solely on the employee’s own computer or phone.

  1. Owned, Use, or Retained by Any State or Local Agency

Fourth, citing section 6253(c) of the Government Code, the Court explained that an agency’s actual or constructive possession of records is relevant in determining whether it has an obligation to search for, collect, and disclose material requested. Nonetheless, the Court explained, “[i]t is a separate and more fundamental question whether a document located outside an agency’s walls, or servers, is sufficiently ‘owned, used, or retained’ by the agency so as to constitute a public record.”  The Court concluded that “documents otherwise meeting CPRA’s definition of ‘public records’ do not lose this status because they are located in an employee’s personal account.”[4] A writing retained by a public employee conducting agency business has been ‘retained by’ the agency within the meaning of section 6252, subdivision (e), even if the writing is retained in the employee’s personal account.”

The Court thus concluded that “a city employee’s communications related to the conduct of the public business do not cease to be public records just because they were sent or received using a personal account. Sound public policy supports this result.”

The Court did not wish to allow government officials to evade the CPRA by merely using a personal account. The Court noted that the “whole purpose” of the CPRA is to “ensure transparency in government activities. If public officials could evade the law simply by clicking into a different email account, or communicating through a personal device, sensitive information could routinely evade public scrutiny.”

Court’s Guidance for Conducting Searches

Although the legality of a specific kind of search was not before the Court, the Court provided guidance on how to strike the balance between privacy and disclosure. The Court, noting that agencies are required to disclose records they can locate “with reasonable effort,” first explained that “[r]easonable efforts do not require that agencies undertake extraordinarily extensive or intrusive searches.” Next, the Court explained that agencies can adopt their own procedures. Citing general principles that have emerged, the Court stated that, once an agency receives a CPRA request, it must communicate the scope of the information to the custodian of records. Where a request seeks records held in employees’ nongovernmental accounts, the Court explained that “an agency’s first step should be to communicate the request to the employees in question. The agency may then reasonably rely on these employees to search their own personal files, accounts, and devices for responsive material.”

The Court noted that federal courts applying FOIA have approved of employees conducting their own searches and segregating public records, as long as those employees have been properly trained on how to distinguish between the two. The Washington Supreme Court recently adopted a similar procedure under its public records law, requiring employees who withhold personal records from their employer to submit an affidavit with facts sufficient to demonstrate that the information sought is not a public record under the state’s public records act.  The Court agreed with Washington’s Supreme Court that the procedure, “when followed in good faith, strikes an appropriate balance, allowing a public agency to ‘fulfill its responsibility to search for and disclose public records without unnecessarily treading on the constitutional rights of its employees.’”

The Court also noted that “agencies can adopt policies that will reduce the likelihood of public records being held in employees’ private accounts,” such as requiring employees to use or copy their government accounts for all communications relating to public business, citing procedures that federal employees are required to follow to ensure compliance with analogous FOIA requests. Despite its suggestions, the Court expressly noted that it was not holding that any particular search method is required or adequate, but that it was offering suggestions to provide guidance on remand and to explain why privacy concerns do not require categorical exclusion of documents in personal accounts from the CPRA’s “public records” definition.

In conclusion, noting consistency with the legislative purpose of the CPRA and the constitutional requirement to interpret the CPRA broadly in favor of public access, the Court held that “a city employee’s writings about public business are not excluded from CPRA simply because they have been sent, received, or stored in a personal account.”

HOW THIS AFFECTS YOUR AGENCY

The Supreme Court’s decision makes clear that writings relating to public business may be subject to disclosure under the CPRA, irrespective of whether such writings have been sent, received, or stored in an official’s or employee’s personal account. The Supreme Court provided agencies with some guidance as to how they could comply with requests for writings that may exist on an employee or elected official’s personal communication device or personal communication account.  It is imperative that you contact your agency’s legal advisor to ensure that you have proper policies and procedures in place to comply with the inevitable barrage of CPRA requests that are sure to follow the Supreme Court’s decision on this issue

 

[1] Available at http://www.courts.ca.gov/opinions/documents/S218066.PDF.

[2] Section 6252(e) of the California Government Code defines “public records” to include “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.”

[3] The CPRA defines a “writing” as “any handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored.” Cal. Gov’t Code § 6252(g).

[4] The Court cited the D.C. Circuit’s construction of the Freedom of Information Act (“FOIA”) in Competitive Enterprise Institute v. Office of Science and Technology Policy, 827 F.3d 145 (D.C. Cir. 2016). For a more detailed summary relating to this case, please see Client Alert Vol. 31, No. 13, authored by Martin J. Mayer and available at www.jones-mayer.com.

source

Texts / Emails AS EVIDENCE:  Authenticating Texts for California Courts

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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

California Supreme Court Subjects Private Electronic Accounts to the Public Records Act

On March 2, the California Supreme Court issued its decision in City of San Jose v. Superior Court (2017) S218066, in which it held that City officials were required to publicly disclose work-related electronic communications from their personal electronic accounts and devices. The case involved a private citizen who formally requested numerous records, including emails and text messages “sent or received on private electronic devices used by” the mayor, City Council members and their staff. The City disclosed communications made using official City telephone numbers and email accounts, but did not disclose communications using the individuals’ personal accounts and devices.

The Supreme Court overruled the lower court’s determination that electronic communications relating to the conduct of public business on private accounts were not “prepared, owned … or retained” by the governmental agency and hence subject to disclosure under the California Public Records Act (CPRA). This decision is significant because it concerns how laws originally enacted to cover paper documents apply to evolving methods of electronic communications, while recognizing that, in today’s environment, much employment-related activity occurs outside the conventional workday and the employer-maintained work environment. It establishes for the first time a legal standard of disclosure of work-related communications on personally owned devices or over personal email accounts that will have a significant and far-reaching impact on every public employee in the state of California. The mere act of communicating with other public employees and elected officials via personal electronic devices will need to be considered in the context of this decision.

The Public Records Act

The CPRA (Government Code Section 6250, et seq.) was created in order “to require that public business be conducted ‘under the hard light of full public scrutiny’ and thereby ‘to permit the public to decide for itself whether government action is proper’” (Times Mirror Co. v. Superior Court [1991] 53 Cal.3d 1325, 1350). In creating this act, the California Legislature declared that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state” (Gov. Code, § 6250). Indeed, in 2004, voters codified this principle in the California Constitution by adopting Proposition 59, which stated that “the writings of public officers and agencies shall be open to public scrutiny.” The California Supreme Court subsequently determined that the CPRA creates “a presumptive right of access to any record created or maintained by a public agency that relates in any way to the business of the public agency” (Sander v. State Bar of California [2013] 58 Cal.4th 300, 323).

The California Supreme Court’s Decision

The California Supreme Court framed the legal issue as a narrow one: “Are writings concerning the conduct of public business beyond CPRA’s reach merely because they were sent or received using a nongovernmental account?” In answering this question in the negative, the court looked at the language of the CPRA and its intent. It rejected the City’s arguments that personal communications were not “prepared” by the local agency, were not “owned, used, or retained by the local agency” and, thus, were not a “public record” under the CPRA. The Supreme Court concluded (at p. 10) that the CPRA includes not only the governmental entity, but also its individual officers and employees. Moreover, the Supreme Court found that a document is retained by the agency within the meaning of the CPRA, “even if the writing is retained in the employee’s personal account” (Decision, p. 13).

To be subject to disclosure under the CPRA, the records must relate in some substantive manner to the conduct of the public’s business. However, the Supreme Court cautioned (at p. 7) that “This standard, though broad, is not so elastic as to include every piece of information the public may find interesting. Communications that are primarily personal, containing no more than incidental mentions of agency business, generally will not constitute public records.”

The Impact of the Decision on Public Employees

This decision will have a significant impact on all public employees in the state of California — and most assuredly, peace officers. Pursuant to the CPRA, the public agency has an obligation to search, collect and disclose material requested in a Public Records Act request. Such records would include information in the actual or constructive possession of the agency, and according to this recent decision, public records do not lose their status merely because they are located in an employee’s personal account or on a personal device (e.g., cell phone). Therefore, the decision recognizes the right of the agency to undertake a “reasonable effort” to locate responsive documents to the Public Records Act request, including through the search of an employee’s personal account.

Although the CPRA does not prescribe specific methods of searching for documents, the California Supreme Court explored potential methods to accomplish the search for documents. For instance, the court indicated that agencies could develop internal policies for conducting such searches, or could rely on employees to search their own personal files and devices for responsive materials. Alternatively, the court also suggested that public agencies could develop policies that would reduce the likelihood of public records being held in employees’ private accounts.

The court cautioned, however, that any personal information not related to the conduct of public business or falling under a statutory exemption under the act could be redacted (Gov. Code, § 6253[a]), but that such privacy concerns would need to be addressed on a case-by-case basis. The court also noted the catchall exemption under the CPRA that allows agencies to withhold any record if the public interest served by withholding it clearly outweighs the public’s interest in disclosure (Gov. Code, § 6255[a]). Such an exemption permits a balance between a public’s interest in disclosure and an individual’s privacy interest.

Conclusion

his decision will certainly cause public agencies to examine their policies and practices regarding electronic communications. It may impact the reasonable expectation of privacy a public employee has in a personal device if he or she uses that personal device for official business. Any expectation of privacy must be reasonable (see Hernandez v. Hillsides, Inc. [2009] 47 Cal.4th 272, 287-88), and the United States Supreme Court has held that “Public employees’ expectations of privacy in their offices, desks, and file cabinets, like similar expectations of employees in the private sector, may be reduced by virtue of actual office practices and procedures, or by legitimate regulation” (O’Connor v. Ortega [1987] 480 U.S. 709, 717). Thus, we may see an employer argue that an employee who conducts official business on a personal device or account after this decision should know that such records will be subject to disclosure through the CPRA and, therefore, the employee has a reduced expectation of privacy in the device and the private account in general.

In the wake of this decision, labor organizations and individual employees should anticipate that agencies will likely be adopting policies and procedures respecting searches of private devices and regulating electronic communications. Employee organizations should be vigilant to exercise all applicable meet and confer rights under collective bargaining statutes to ensure that any such agency procedures are consistent with privacy rights established by the United States and California constitutions.

Moreover, the court’s decision should cause every public employee to seriously consider when, how and whether to use their personal communication devices for anything related to the business of the agency they work for. Peace officers in particular should be especially reluctant to use their personal devices and accounts for law enforcement business, as the nature of their work places them at even greater risk of having their cell phones accessed.

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Texts / Emails AS EVIDENCE:  Authenticating Texts for California Courts

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

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

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

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

 

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

With the unanimous Supreme Court ruling, California joins other states, including Washington and Florida, and the Federal government in issuing a clear statement that all records regarding government business, even private email or text message accounts, are subject to open records laws.

The ruling may have monetary implications for the City of San Jose; the City may be required to pay the plaintiff’s costs and attorneys’ fees. Also, some states have statutes that include personal fines or criminal penalties for egregious violations of public records laws.

In the City of San Jose v. Superior Court of Santa Clara County, the City of San Jose argued that the City should not be required to disclose communications on the personal phones lines or email accounts of government employees or officials. The City also argued that privacy law protected their employees’ personal text messages and email messages from public disclosure.

Consistent with other states rulings, the California Supreme Court ruled that emails and text message communications are not excluded from disclosure under the California Public Records Act when they are on a personal account or device. Rather, the court ruled that it is the content, not the location of a communication, that determines whether an email or text message is a public record. Like San Jose, many other state and local agencies also assume that privacy law protects communications on employee personal phones or accounts. However, the California Supreme Court specifically held that individual privacy rights are not subservient to public records disclosure.

The rule is clear: all agency communications are subject to open records requests (with limited statutory exceptions) regardless of the channel of communication. The ruling is also consistent with California’s very strong public policy favoring the public’s fundamental right of access to information regarding public matters, as set forth in the CPRA.

3 Tips for Compliant Records Requests Programs after The City of San Jose

Without prescribing a specific policy or procedural framework, the Supreme Court in The City of San Jose discussed how agencies may implement policies to ensure all public records can be produced. So, what policies and procedures should an agency use?

  1. Make Sure Your Record Request Policy is Clear.

Many states, along with California, have held that a record is a public record if it is about public business, no matter where it’s located. Agencies need to review and update the definition of ‘public record’ in their policies and procedure documents. The definition should be stated clearly so government employees and officials understand the agency’s disclosure obligations.

In addition, policy and procedure documents need to make it clear that when there is a request for records which may be located within an employee’s or government official’s private account, the individual must perform a good faith search of their accounts or devices for all public records and sign an affidavit attesting to such search. Here’s sample text for California:

Records Subject to Disclosure. Every record made or received by the Department is presumed to be a public record that members of the public may inspect or obtain a copy upon request.

Records made by Department officials or personnel about Department business, whether within the possession of the Department or not, are presumed to be public records.
Only records that are exempt from public disclosure under federal, state and/or local law may be withheld. Examples of records the Department is prohibited from disclosing or may decline to disclose include: [Department to list statutory exemptions].

  1. Train, Communicate, Repeat.

The League of California Cities provides a resource on the CPRA that public entities may use to train employees and officials. To ensure employees and officials understand the CPRA, it is essential that public entities provide initial, in person training for each employee or official and continue to provide training on an annual basis thereafter. Further, cities, states, and agencies must ensure training includes information about which channels of communication are approved for agency business and which are prohibited. Employees and officials must understand that if they choose to use unapproved channels, such as personal text messages or email accounts, then those accounts may become searchable. In the extreme scenario, personal information may be subject to judicial review to determine whether a record is a public or personal record.

A good training program must be supported by an ongoing communication plan. Agencies must build awareness through repeated intra-agency communications. Agencies may send email updates, newsletter articles, create awareness campaigns, or find other venues to make announcements. Repeated reminders will help build a culture of compliance.

Using the records request process is another way to generate awareness and educate employees and officials. With each record request received by the public entity there is an opportunity to educate employees and officials on the CPRA and an individual’s obligations with respect to the CPRA. Agencies should consider including educational statements with records requests notices. Such statements might say:

The purpose of the California Public Records Act is to ensure transparency in government activities. Records under the California Public Records Act include any record about the business of the [Department]. As a public entity, we are required to produce all records which are responsive to the request and which are not excluded under [applicable statute].

This includes records that may be sent through personal accounts or devices. Government personnel are required to perform a good faith search of their personal accounts or devices for communication related to public business.

  1. Require a Good Faith Search + Employee Affidavit.

The California Supreme Court made it clear that the onus is on the city, state, or agency to ensure production of all responsive records. California is not alone. Many other courts have concluded the same. Cities, states, and agencies need to either ensure their employees are not using unapproved communication channels for public business or they need to update their policies to require a good faith search by employees where appropriate. An employee’s good-faith search for public records on his or her personal device can satisfy an agency’s disclosure obligations under the statute in some states (See Nissen v. Pierce County).

After an employee performs a good faith search, the agency should require the employee to submit an affidavit stating they performed a good faith search of all communication channels and provided all records related to public business. It’s important to note the employee should not determine which records are or are not responsive to the public records request. The employee should produce all records that involve the public entity’s business.

Smarsh Can Help

Public records requests can require a great deal of effort on the part of a public agency, especially if the agency doesn’t have technology in place to help dramatically streamline the process. Agencies are usually required to locate, search, redact, and produce responsive records with limited personnel and budget devoted to handling requests.

The Archiving Platform from Smarsh gives government agencies a centralized platform to manage record requests across the entire range of digital communications, including email, social media, websites, instant messaging and mobile messaging. Agencies can easily search across all communication channels for responsive content and export the content at the click of a button – making the process faster and more efficient for the agency and ultimately the tax payer.

source

Texts / Emails AS EVIDENCE:  Authenticating Texts for California Courts

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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

California Supreme Court Rules Public Records Act Covers Government Communications on Private Email and Personal Devices

In a major victory for transparency, the California Supreme Court ruled today that when government officials conduct public business using private email or personal devices, those communications may be subject to disclosure under the California Public Record Acts (CPRA).

In the unanimous opinion, the court overturned an appellate court ruling, writing:

CPRA and the [California] Constitution strike a careful balance between public access and personal privacy. This case concerns how that balance is served when documents concerning official business are created or stored outside the workplace. The issue is a narrow one: Are writings concerning the conduct of public business beyond CPRA’s reach merely because they were sent or received using a nongovernmental account? Considering the statute’s language and the important policy interests it serves, the answer is no. Employees’ communications about official agency business may be subject to CPRA regardless of the type of account used in their preparation or transmission.

EFF has long been concerned with the potential for officials to hide public records by using private online accounts or personal phones and computers to conduct business.  In this case, activist Ted Smith was seeking records from the City of San Jose that may have been stored in personal devices or accounts. These issues have come up, not only on the local level, but federal as well—all the way up to former Secretary of State Hillary Clinton, who was embroiled in a high-profile scandal over her use of a private email server based out of her home.

EFF joined the ACLU in filing an amicus brief in this case, asking the Supreme Court to overturn an appellate court ruling in favor of the City of San Jose. As we wrote in our opening:

[The court of appeal’s] holding violates both the letter and spirit of the California Public Records Act and Article I, section 3 of the California Constitution by holding that emails related to official business are outside the PRA merely because they are sent and receiving using non-governmental accounts. And the court’s reasoning would allow government officials and employees to circumvent the PRA simply by opening a new browser window and logging into a personal web-based email account as they sit at their government-owned computers. The result would be to curtail if not eliminate public access to informal emails between individual officials and employees and with industry and special interests that provide critical insight into the government operations beyond the often sanitized contents of formal memoranda and bulletins: not just what the government is doing but why it is doing it and at whose behest.

The California Supreme Court pointed out in its ruling that agencies aren’t just disembodied entities, but rather rely on human beings to prepare, retain, or use records: “When employees are conducting agency business, they are working for the agency and on its behalf.”

The court added: “The whole purpose of CPRA is to ensure transparency in government activities. If public officials could evade the law simply by clicking into a different email account, or communicating through a personal device, sensitive information could routinely evade public scrutiny.”

While government officials should not be able to use private devices to evade public scrutiny, at the same time, government employees shouldn’t have to forfeit all rights to privacy by holding public office, and their personal communications shouldn’t be subject to search every time someone files a public records request. The court seemed to take this issue into account and provided some guidance on what records on private devices would be subject to disclosure. As the Court wrote in the opinion:

We clarify, however, that to qualify as a public record under CPRA, at a minimum, a writing must relate in some substantive way to the conduct of the public’s business. This standard, though broad, is not so elastic as to include every piece of information the public may find interesting. Communications that are primarily personal, containing no more than incidental mentions of agency business, generally will not constitute public records. For example, the public might be titillated to learn that not all agency workers enjoy the company of their colleagues, or hold them in high regard. However, an employee’s electronic musings about a colleague’s personal shortcomings will often fall far short of being a “writing containing information relating to the conduct of the public’s business.”

Ultimately, the Court’s message was clear: if you’re a government official conducting the public’s business, those are public records, no matter where those records are stored. Today’s decision will have wide-ranging impact on how public records are treated throughout the state, whether that’s elected officials communicating with lobbyists through Twitter direct messages or law enforcement officers exchanging controversial text messages on their personal smartphones. The case doesn’t end the discussion, though. We hope it will also trigger policy reforms within agencies to ensure that employees and officials do not use personal communications tools to conduct public business: this requirement would ultimately be the best way to ensure transparency and privacy.

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Texts / Emails AS EVIDENCE:  Authenticating Texts for California Courts

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

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

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

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

 

California Supreme Court Holds Public Records Sent Through Private Email Accounts and Devices May Be Subject to Disclosure

The Supreme Court’s Decision
The Court described the single “narrow issue” in the case: “Are writings concerning the conduct of public business beyond CPRA’s reach merely because they were sent or received using a nongovernmental account?”

Noting the competing interests of openness in government and protecting personal privacy, the Court concluded, “Employees’ communications about official agency business may be subject to CPRA regardless of the type of account used in their preparation or transmission.” The Court made no distinction between the terms employee and official for purposes of the CPRA requirements.

The Court focused primarily on the definition of a “public record” under the CPRA: “(1) a writing; (2) with content relating to the conduct of the public’s business, which is (3) prepared by, or (4) owned, used, or retained by any state or local agency.” The Court did not address whether any exemptions under the CPRA could apply because the City had not invoked any CPRA exemptions.

With regard to the second element of a public record, its content, the Court clarified that “at a minimum, a writing must relate in some substantive way to the conduct of the public’s business.” This standard, the Court specified, should not be “so elastic as to include every piece of information the public may find interesting.” If a communication is primarily personal in nature, it should not be considered a public record. As an example, a public employee casually discussing a colleague’s “personal shortcoming” through email “will often fall far short” of becoming a public record.

As to the third element, noting that an agency can act only through its individual officers and employees, the Court concluded that if a writing is prepared by an employee, regarding agency business, it is “prepared by” the agency regardless of whether a personal account was used.

The Court interpreted the fourth element to mean that records in the entity’s actual or constructive possession are subject to a CPRA request. An agency has constructive possession of records if it has the right to control them, either directly or through another person. Therefore, the Court held, writings prepared by a public employee regarding agency business are public records, regardless of where they are located.

The Court concluded the Legislature never intended for public officials to have the ability to “shield communications about official business simply by directing them through personal accounts.” Any other interpretation would mean that “sensitive information could routinely evade public scrutiny.”

Practical Effect on Public Agencies
Recognizing that the CPRA does not prescribe specific methods of searching for records, the Court offered agencies limited guidance for complying with the duty to disclose records from private employee accounts or devices. Though the Court did not indicate that following its guidance would guarantee compliance, it noted the two suggestions offered are already being used by federal agencies to respond to requests under the Freedom of Information Act.

First, when faced with a CPRA request seeking records believed to be in an employee’s personal account or device, the agency should communicate the request to that employee. The agency may “reasonably rely” on the employee to search his or her own personal files, accounts, and devices for responsive material. For this procedure to be adequate under the CPRA, the employee must be trained in distinguishing public records from private records. An “employee who withholds a document identified as potentially responsive may submit an affidavit providing the agency, and a reviewing court, ‘with a sufficient factual basis upon which to determine whether contested items were “agency records” or personal materials.’” When an employee makes a good faith effort to comply with the request, the agency fulfills its responsibility to conduct a reasonable search under the CPRA.

Second, the Court suggested that agencies develop policies that reduce the incidence of public records being maintained solely in private accounts and devices. For example, the agency could require that all emails involving agency business, sent by an employee through a private account, be copied to the employee’s agency email account. (See, e.g., 44 U.S.C. § 2911(a) [prohibiting use of personal electronic accounts for official federal agency business unless messages are copied or forwarded to an official account]; 36 C.F.R. § 1236.22(b) [requiring federal agencies to ensure official email messages in employees’ personal accounts are preserved in the agencies’ recordkeeping system].)

This decision is likely to result in many more requests for records that reside on officials’ and employees’ personal devices. To be prepared for these requests, public agencies are advised to promptly adopt the measures suggested by the Supreme Court: (1) training all employees and officials in identifying public records, (2) developing an appropriate affidavit for employees to use, and (3) adopting policies to discourage the use of personal accounts and devices for the conduct of public business. Our team of attorneys can assist any public agency in implementing these measures.

Texts / Emails AS EVIDENCE:  Authenticating Texts for California Courts

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

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

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

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

Federal Records Act in 2014

The amendments made in the Federal Records Act in 2014 have made the public records request response for government agencies more complex and challenging.

Under the amended law, the scope of “records” now constitutes messages transmitted through electronic communications, such as mobile SMS. With that regard, it has become imperative for public offices to know how to archive text messages. It is imperative not only to meet the retention requirements of FOIA and Sunshine policies but also to instill transparency and trust to the public by being able to respond to public records requests promptly.

Most states also consider text messages and other electronic communications as official business records and, therefore, must be archived and open for the public’s perusal. Just last year, the Texas government passed the Senate Bill 944 into law, declaring that public information held on private devices or in a private account of a public employee or official must be released.

With federal and state mobile text message retention laws, the public has all the rights to request records of government officials’ and employees’ business communications. Failure to ensure timely public records request the response will not only lead to severe backlash from the public, but also compromised critical government data, and even expensive FOIA lawsuits.

Read on as we detail in this infographic the cases where public agencies and offices were requested to produce records of mobile SMS of their employees and officials and the outcome of these requests.

H.R.1233 – Presidential and Federal Records Act Amendments of 2014

Public Law No: 113-187 (11/26/2014)

(This measure has not been amended since it was reported to the Senate on July 23, 2014. The summary of that version is repeated here.)

Presidential and Federal Records Act Amendments of 2014 – (Sec. 2) Amends the Presidential Records Act to require the Archivist of the United States, upon determining to make publicly available any presidential record not previously made available, to: (1) promptly provide written notice of such determination to the former President during whose term of office the record was created, to the incumbent President, and to the public; and (2) make such record available to the public within 60 days, except any record with respect to which the Archivist receives notification from a former or incumbent President of a claim of constitutionally-based privilege against disclosure. Prohibits the Archivist from making a record that is subject to such a claim publicly available unless: (1) the incumbent President withdraws a decision upholding the claim, or (2) the Archivist is otherwise directed to do so by a final court order that is not subject to appeal.

Prohibits the Archivist from making available any original presidential records to anyone claiming access to them as a designated representative of a President or former President if that individual has been convicted of a crime relating to the review, retention, removal, or destruction of the records of the Archives.

Prohibits the President, the Vice President, or a covered employee (i.e., the immediate staff of the President and Vice President or office advising and assisting the President or Vice President) from creating or sending a presidential or vice presidential record using a non-official electronic messaging account unless the President, Vice President, or covered employee: (1) copies an official electronic messaging account of the President, Vice President, or covered employee in the original creation or transmission of the presidential or vice presidential record; or (2) forwards a complete copy of the presidential record to an official electronic messaging account of the President, Vice President, or covered employee not later than 20 days after the original creation or transmission of the presidential or vice presidential record.

(Sec. 3) Provides that the transfer to the Archivist of records by a federal agency that have historical significance shall take place as soon as practicable but not later than 30 years after the creation or receipt of such records by an agency. Expands the authority of the Archivist with respect to the creation and preservation of audio and visual records.

(Sec. 5) Revises the definition of “records” for purposes of this Act to include all recorded information, regardless of form or characteristics. Makes the Archivist’s determination of whether recorded information is a record binding on all federal agencies.

(Sec. 6) Directs the Archivist to prescribe internal procedures to prevent the unauthorized removal of classified records from the National Archives and Records Administration (NARA) or the destruction or damage of such records, including when such records are accessed electronically. Requires such procedures to: (1) prohibit any person, other than personnel with appropriate security clearances (covered personnel), from viewing classified records in any room that is not secure, except in the presence of NARA personnel or under video surveillance, from being left alone with classified records unless under video surveillance, or from conducting any review of classified records while in the possession of any personal communication device; (2) require all persons seeking access to classified records to consent to a search of their belongings upon conclusion of their records review; and (3) require all writings prepared by persons, other than covered personnel, during the course of a review of classified records to be retained by NARA in a secure facility until such writings are determined to be unclassified, are declassified, or are securely transferred to another secure facility.

(Sec. 7) Repeals provisions authorizing the National Study Commission on Records and Documents of Federal Officials.

(Sec. 9) Transfers responsibility for records management from the Administrator of the General Services Administration (GSA) to the Archivist. Requires the transfer of records from federal agencies to the National Archives in digital or electronic form to the greatest extent possible.

(Sec. 10) Prohibits an officer or employee of an executive agency from creating or sending a record using a non-official electronic messaging account unless such officer or employee: (1) copies an official electronic messaging account of the officer or employee in the original creation or transmission of the record, or (2) forwards a complete copy of the record to an official electronic messaging account of the officer or employee not later than 20 days after the original creation or transmission of the record. Provides for disciplinary action against an agency officer or employee for an intentional violation of such prohibition.

source

]]> Parent’s Rights & Children’s Bill of Rights https://goodshepherdmedia.net/parents-rights-childrens-bill-of-rights/ Wed, 14 Sep 2022 22:55:30 +0000 https://goodshepherdmedia.net/?p=6433 Parent’s Rights & Children’s Bill of Rights

Scotus Ruling for Parents

Quick Facts on Parental Involvement

  • Children who have parental support are likely to have better health as adults.
  • Students with involved parents tend to earn higher grades, have better social skills, and are more likely to graduate and go on to post-secondary education.
  • Children are more likely to be socially competent and have better communication skills when they have parents who are sensitive to their needs and emotions.
  • Teens who are monitored by their parents are one-quarter as likely as teens with “hands-off” parents to smoke, drink, and use drugs.

Parents play an irreplaceable role in the lives of their children. This vital relationship positively impacts a child’s physical, mental, and emotional well-being. The right of parents to maintain a strong involvement in their children’s lives has been continually upheld by Supreme Court doctrine. It is deeply valued by millions of American families. cited

 

Amdt 5.4.5.6.2 Parental and Children’s Rights – under the Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

In a case involving a state proceeding to terminate the parental rights of an indigent without providing her counsel, the Court recognized the parent’s interest as “an extremely important one.” The Court, however, also noted the state’s strong interest in protecting the welfare of children. Thus, as the interest in correct fact-finding was strong on both sides, the proceeding was relatively simple, no features were present raising a risk of criminal liability, no expert witnesses were present, and no “specially troublesome” substantive or procedural issues had been raised, the litigant did not have a right to appointed counsel.1 In other due process cases involving parental rights, the Court has held that due process requires special state attention to parental rights.2 Thus, it would appear likely that in other parental right cases, a right to appointed counsel could be established.

read another amendment section under the 14th amendment below

Amdt 9.32 Particular Rights – Fourteenth Amendment –  Interference with Parent / Child Relationship

 

 

RELATIONSHIP WITH YOUR CHILDREN & YOUR CONSTITUIONAL RIGHT$ + RULING$

YOU CANNOT GET BACK TIME BUT YOU CAN HIT THOSE PUNKS WHERE THEY WILL FEEL YOU = THEIR BANK

We also have the 9.3 Section 1983 Claim Against Defendant as (Individuals) — 14th Amendment  this CODE PROTECTS all US CITIZENS

We also have the  Amdt5.4.5.6.2 – Parental and Children’s Rights 5th Amendment  this CODE PROTECTS all US CITIZENS

We also have the 9.32 – Interference with Parent / Child Relationship – 14th Amendment this CODE PROTECTS all US CITIZENS

We also have the  California Civil Code Section 52.1 Interference with exercise or enjoyment of individual rights

We also have the Parent’s Rights & Children’s Bill of Rights SCOTUS RULINGS FOR YOUR PARENT RIGHTS

We also have the GrandParents Rights To Visit Family Law Packet including the FL-375 Form Needed to File

 

Children’s Bill of Rights During Splitting Up, Separation or Divorce

The biggest fear parents have during divorce is the impact it will have on their children.  Putting the needs and best interests of your children first during a divorce can look different for every family.

Even during a time of great stress and turmoil, parents have a responsibility and opportunity to truly support their children.  One way is to remember your child’s rights.

1. Your child has a right to love both of their parents.

2. Your child has a right to not to have to choose between their parents.

3. Your child has a right to not to have to listen to either parent talk badly about the other parent or his or her family.

4. Your child has a right to express feelings and have those feelings acknowledged by their parents.

5. Your child has a right to have contact with both parents at appropriate times, regardless of the parenting schedule.

6. Your child has the right to have their things at both parents’ homes and have it acknowledged that they child have two homes, regardless of how much time they spend at each.

We know you want to be the best parent you can be during your divorce.  Keeping the above rights of your child in mind during the divorce process can help your actions be aligned with your intentions when the going gets tough.

If your child is of appropriate age (generally ages 8 and up), we encourage you to discuss these rights with your child to create an environment in your home that fosters open and honest communication and to support your child through this transition. cited https://koenigdunne.com/childrens-bill-of-rights-during-divorce/

“…It is a Fundamental Constitutional Right.”

In 2000, the Supreme Court cited a long train of previous cases which showed that the right of parents to direct the education and upbringing of their children is a fundamental right. The following passage, taken from Troxel v. Granville, highlights the rich history of this fundamental right:

In subsequent cases also, we have recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children. See, e.g., Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (“It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children ‘come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements'” (citation omitted)); Wisconsin v. Yoder, 406 U.S. 205, 232, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (“The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition”); Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978) (“We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected”); Parham v. J. R., 442 U.S. 584, 602, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979) ( “Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course”); Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (discussing “[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child”); Glucksberg, supra, at 720, 117 S.Ct. 2258 (“In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the ‘liberty’ specially protected by the Due Process Clause includes the right … to direct the education and upbringing of one’s children” (citing Meyer and Pierce)). In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children. (emphasis added)

 

Learn More: Family Law Appeal

Parents Have an Irreplaceable Role

The role of parents in a child’s life is an irreplaceable one. “Even when young children spend most of their waking hours in child care, parents remain the most influential adults in their lives,” writes Dr. Jack Shonkoff, a board-certified pediatrician who sits on the faculty of the Harvard Graduate School of Education.[2]

“The hallmark of [the parental] relationship is the readily observable fact that this special adult is not interchangeable with others,” he continues. “A child may not care who cuts his hair or takes his money at the toy store, but he cares a great deal about who is holding her when she is unsure, comforts her when she is hurt, and shares special moments in her life.”[3]

The relationship that parents share with their children is one that impacts a child throughout his or her lifetime. Studies show that the benefits of parental involvement are manifold, affecting numerous areas of a child’s life, including health and development, academic progress, and life choices.

Time-Honored Parental Rights

The Supreme Court has maintained that parents possess a fundamental constitutional right to raise their children as they see fit. “The child is not the mere creature of the State,” the Supreme Court concluded in a 1925 ruling. “Those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”

“The child is not the mere creature of the State. Those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”
– Pierce v. Society of Sisters, 268 U.S. 510
(1925 Supreme Court case)

The role of parents in the lives of their children has, historically, been one of unquestioned value, celebrated in cultures around the world. And the rights that come along with that responsibility—to direct the upbringing and education of one’s own children—have been consistently honored and upheld.

Protecting the Vital Parent-Child Relationship

There is only one way to effectively secure the foundation of parenthood for this generation and the next: a constitutional amendment that explicitly protects the child-parent relationship from unreasonable government intrusion. A constitutional amendment will ensure that the rights of parents to raise their children are honored by federal court judges.

cited 

 

In early 2006, the U.S. Supreme Court used this very language when talking about violations of religious liberty. According to the Court, the government must “demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’–the particular claimant whose sincere exercise of religion is being substantially burdened.”Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 430-431 (2006). The text of this proposed parental rights amendment merely takes this well-established principle of law, and applies it explicitly to the fundamental right of parents.

Protecting Parental Rights at the State Level

Parents have rights to be parents’

[1] While in Jackson v. Tangreen (2000), the Court of Appeals of Arizona found that “Troxel cannot stand for the proposition that [a state visitation statute] is necessarily subject to strict scrutiny,” the newer Ariz. Rev. Stat. § 1-601 explicitly requires this strict scrutiny review.

[3] Col. Rev. Stat. § 13-22-107(1)(a)(III) expressly declares parental rights “fundamental,” which may lead to strict scrutiny protection the next time the issue comes up in the courts.

[4] In Wilson v. Div. of Family Servs., the Supreme Court of Delaware recognized “the interest of natural parents in the care and custody of their children” as a “fundamental right,” but did not specify strict scrutiny.

[5] O.C.G.A. § 19-7-1 (b. [***8] 1) establishes a rebuttable presumption that parental custody is always in the child’s best interest.

[6] While in Skov v. Wicker v. Boydston, 272 Kan 240 (2001), the Kansas Supreme Court, citing the Troxel ruling, only demanded the ambiguous Troxel test, it is expected that the religious freedom statute of 2013 that calls for fundamental parental rights and outlines strict scrutiny protection will lead to a different outcome in Kansas courts the next time the issue comes up.

[7] Louisiana Children’s Code Article 101 supports parental rights and family privacy.

[8] Parental rights are affirmed as fundamental rights deserving of strict scrutiny in Nebraska Supreme Court case precedent, but contrary court precedent also exists. The state of parental rights in Nebraska’s courts, therefore, is unclear.

[7] Louisiana Children’s Code Article 101 supports parental rights and family privacy.

[8] Parental rights are affirmed as fundamental rights deserving of strict scrutiny in Nebraska Supreme Court case precedent, but contrary court precedent also exists. The state of parental rights in Nebraska’s courts, therefore, is unclear.

[9] While North Carolina and Rhode Island courts have repeatedly recognized the rights of parents to oversee the care of their children as a fundamental right, unfortunately, no specific standard of review (such as “strict scrutiny”) is set in these cases in either state.

[10] Tennessee does have numerous laws on the books that provide support to parental rights.

[11] Although Texas does not have a specific parental rights statute, parental rights are respected and protected by statute in several key parts of Texas law. A parental rights statute could improve on this–but not by much.

[12] Vermont courts have a history of recognizing fundamental parental rights but the standard of review may be a subject of confusion.

[13] Washington courts affirm parental rights as fundamental, although there is no mention of strict scrutiny.

[14] West Virginia law acknowledges parental rights as fundamental in W. Va. Code § 49-1-1(a) and W. Va. Code § 49-6D-2(a).

[15] In 2003, the New Jersey Supreme Court heard just such a challenge to the grandparent visitation statute. Our Supreme Court, in essence, found the Grandparent Visitation Statute as drafted to be unconstitutional and therefore added a requirement: a threshold showing of harm that can be satisfied only by “gross misconduct, unfitness, abandonment, or exceptional circumstances.” [Moriarty v. Bradt, 177 N.J. 84, 112-18 (2003).] Following such a finding, the parent is obliged to offer a visitation schedule, and if the grandparents agree to that schedule, “that will be the end of the inquiry.” If the parent and grandparents are unable to agree on a visitation schedule, the Court will implement a schedule “that it finds is in the child’s best interest, based on the application of the statutory factors.” [Moriarty v. Bradt, 177 N.J. 84, 117 (2003).]

Cited https://parentalrights.org/states/

 3 Constitutional Rights of Parents Develop 1920’s : parents have a fundamental liberty interest in the “care, custody and control” of their children (though not to due process before removal).  Meyer v. Nebraska, 262 U.S. 390 (1923) (teaching foreign language in school)  Pierce v. Society of Sisters, 268 U.S. 510 (1925) (private schools) “It is cardinal with us that the custody, care and nurture of the child reside first in the parents.”  Prince v. Massachusetts, 321 U.S. 158 (1944) (right to practice religion)

4 4 In Re Gault, 387 U.S. 1 (1967) “Due process, not benevolent intentions, produces justice.” – Justice Abe Fortas   Struck down parens patriae authority of the court to remove children from home without a hearing (to deal with criminal conduct).   Did not disturb the parens patriae doctrine in dependency cases.   Hailed by some as advancement in children’s rights.   Criticized by others as the criminalization of the juvenile court and the beginning of the end of the court’s authority to treat children like children rather than adults.   “Child’s best interest” today can retain some of the old paternalism, if we are not careful.

5 5 Constitutional Rights of Parents 1972: Unwed father could not be presumed to be an unfit parent; Entitled to a hearing, under equal protection clause) – Stanley v. Illinois, 405 U.S. 645 1982: The interest of parents in the care and custody of their children is a fundamental liberty interest protected by the due process clause of the 14 th amendment. – Santosky v. Kramer, 455 U.S. 745 (because of due process protection, standard of proof for TPR must be clear and convincing). * Extended to adjudications by NM statute 32A-4-20(H). * 83 years from the first children’s courts, 15 years after Gault, came the establishment of due process for TPRs in Santosky.

6 6 Despite the Supreme Court’s repeated recognition of these significant fundamental parental liberty interests, these interests have never been seen to be without limits. -Lehr v. Robertson, 463 US 248 (1983). -Gerald D., 491 U.S. 110 (1989). 1980’s

7 7 The Right to Parent Requires a Familial Relationship – Biology is not enough Lehr v. Robertson: The mere existence of a biological link does not merit… constitutional protection. To have constitutionally protected parental rights, an unwed father must take steps to establish a “significant custodial, personal, or financial relationship with his child.”

cited https://slideplayer.com/slide/5813806/

UNFAIR TO ONE SIDE

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.”

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.”

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.”

 

 

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

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 no 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

THEREFOR GIVE THE RIGHTS TO PARENT TO GOOD PARENTS EQUALLY

(In re Caden C. (2021) 11 Cal. 5th 614, 644 (“Caden C.”).) In reversal, the California Supreme Court holds that the parental-benefit exception per Welf. & Inst.C. §366.26(c)(1)(B)(i) does not require heightened or additional showing in order to establish the exception; neither must a parent show that they are substantially complying with the case plan in order to establish the exception.

( In re B.G. (1974) 11 Cal.3d 679, 688–689, 114 Cal.Rptr. 444, 523 P.2d 244 ; see In re Marilyn H. (1993) 5 Cal.4th 295, 306, 19 Cal.Rptr.2d 544, 851 P.2d 826.) “[A] parent whose child may be found subject to the dependency jurisdiction of the court enjoys a due process right to be informed of the nature of the hearing, as well as the allegations upon which the deprivation of custody is predicated, in order that he or she may make an informed decision whether to appear and contest the allegations.”

 

The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations. – Pierce v. Society of Sisters, 268 U.S. 510 (1925)

 

In subsequent cases also, we have recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children. See, e.g.,

 

Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (“It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children ‘come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements'” (citation omitted));

 

Wisconsin v. Yoder, 406 U.S. 205, 232, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (“The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition”);

 

Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978) (“We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected”);

 

Parham v. J. R., 442 U.S. 584, 602, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979) ( “Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course”);

 

Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (discussing “[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child”);

 

Glucksberg, supra, at 720, 117 S.Ct. 2258 (“In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the ‘liberty’ specially protected by the Due Process Clause includes the right … to direct the education and upbringing of one’s children” (citing Meyer and Pierce)). In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children. (emphasis added)

 

It is the natural duty of the parent to give his children education suitable to their station in life. – Meyer v. State of Nebraska, 262 U.S. 390 (1923)

The values of parental direction of the religious upbringing and education of their children in their early and formative years have a high place in our society.

Even more markedly than in Prince, therefore, this case involves the fundamental interest of parents, as contrasted with that of the State, to guide the religious future and education of their children.

The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition. – Wisconsin v. Yoder, 406 U.S. 205 (1972)

 

This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. – Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974)

 

The liberty interest in family privacy has its source, and its contours are ordinarily to be sought, not in state law, but in intrinsic human rights, as they have been understood in “this Nation’s history and tradition.” – Smith v. Organization of Foster Families, 431 U.S. 816 (1977)

 

We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected.

We have little doubt that the Due Process Clause would be offended “if a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest.” – Quilloin v. Walcott, 434 U.S. 246 (1978)

 

Our decisions establish that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition. It is through the family that we inculcate and pass down many of our most cherished values, moral and cultural. – Moore v. East Cleveland, 431 U.S. 494 (1977)

 

 

It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. . . . It is in recognition of this that these decisions have respected the private realm of family life which the state cannot enter. – Prince v. Commonwealth of Massachusetts, 321 U.S. 158 (1944)

 

The law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children.

 

The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition.

Simply because the decision of a parent is not agreeable to a child or because it involves risks does not automatically transfer the power to make that decision from the parents to some agency or officer of the state. – Parham v. J. R., 442 U.S. 584 (1979)

 

The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life.

Until the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship. – Santosky v. Kramer, 455 U.S. 745 (1982)

The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life.

Until the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship. – Santosky v. Kramer, 455 U.S. 745 (1982)

“The best interests of the child,” a venerable phrase familiar from divorce proceedings, is a proper and feasible criterion for making the decision as to which of two parents will be accorded custody. But it is not traditionally the sole criterion-much less the sole constitutional criterion-for other, less narrowly channeled judgments involving children, where their interests conflict in varying degrees with the interests of others.

“The best interests of the child” is not the legal standard that governs parents’ or guardians’ exercise of their custody: So long as certain minimum requirements of child care are met, the interests of the child may be subordinated to the interests of other children, or indeed even to the interests of the parents or guardians themselves. – Reno v. Flores, 507 U.S. 292 (1993)

In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the “liberty” specially protected by the Due Process Clause includes the rights . . . to direct the education and upbringing of one’s children.

The Fourteenth Amendment “forbids the government to infringe … ‘fundamental’ liberty interests of all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.” – Washington v. Glucksburg, 521 U.S. 702 (1997)

 

 

 

Child Dependency Due Process –

Conforming to Proof In re I.S.

Published 8/16/2021; First Dist., Div. Two Docket No.: A161417; 67 Cal.App.5th 918

IT WAS AN ABUSE OF DISCRETION AND VIOLATION OF A PARENT’S DUE PROCESS RIGHTS FOR THE COURT TO AMEND THE ALLEGATIONS TO CONFORM TO PROOF IN SUCH A WAY THAT IT 6 MATERIALLY ALTERED THE ALLEGATIONS BY INCLUDING FACTS AND LEGAL THEORIES NOT INCLUDED IN THE ORIGINAL PETITION.

Reversed. Mother’s due process was violated when the court amended the petitions to conform to proof by including facts and legal theories that were not in the original petition. A court may amend a petition to conform to the proof presented at a jurisdictional hearing if the amendment is immaterial, but amendments that are material or prejudicial are not allowed. An example of an allowable amendment is the substituting of one word for another where the variance between the words was minimal. (See In re Jessica C. (2001) 93 Cal.App.4th 1027 [holding the word “touching” could be substituted for “penetrating” in a sexual abuse case because the basic allegation remained the same].)

IN RE I.S.,

“Since the interest of a parent in the companionship, care, custody, and management of his [or her] children is a compelling one, ranked among  the most  basic of civil rights [citations], the state, before depriving a parent of this interest, must afford [the parent] adequate notice and an opportunity to be heard.” ( In re B.G. (1974) 11 Cal.3d 679, 688–689, 114 Cal.Rptr. 444, 523 P.2d 244 ; see In re Marilyn H. (1993) 5 Cal.4th 295, 306, 19 Cal.Rptr.2d 544, 851 P.2d 826.) “[A] parent whose child may be found subject to the dependency jurisdiction of the court enjoys a due process right to be informed of the nature of the hearing, as well as the allegations upon which the deprivation of custody is predicated, in order that he or she may make an informed decision whether to appear and contest the allegations.”

( In re Wilford J. (2005) 131 Cal.App.4th 742, 751, 32 Cal.Rptr.3d 317.) “Notice of the specific facts upon which the petition is based is necessary to enable the parties to properly meet the charges.” ( In re Jeremy C. (1980) 109 Cal.App.3d 384, 397, 167 Cal.Rptr. 283.)

A court may amend a dependency petition to conform to the evidence received at the jurisdiction hearing to remedy immaterial variances between the petition and proof. ( § 348 ; Code Civ. Proc., § 470.) However, material amendments that mislead a party to his or her prejudice are not allowed. ( Code Civ. Proc., §§ 469 – 470 ; In re Andrew L. (2011) 192 Cal.App.4th 683, 689, 121 Cal.Rptr.3d 664 ( Andrew L. ).)

The basic rule from civil law, however, is that amendments to conform to proof are favored, and should not be denied unless the pleading as drafted prior to the proposed amendment would have misled the adversarial party to its prejudice.” ( In re Jessica C. (2001) 93 Cal.App.4th 1027, 1041–1042, 113 Cal.Rptr.2d 597 ( Jessica C. ).)

 

https://goodshepherdmedia.net/child-dependency-due-process-conforming-to-proof-in-re-i-s/

CONFRONTATION CLAUSE / DUE PROCESS
https://goodshepherdmedia.net/confrontation-clause/

The Sixth Amendment’s Confrontation Clause provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” This bedrock procedural guarantee applies to both federal and state prosecutions. Pointer v. Texas, 380 U. S. 400, 406 (1965). In Ohio v. Roberts, 448 U. S. 56 (1980), the Supreme Court held that the Confrontation Clause does not bar admission of an unavailable witness’s statement against a criminal defendant if the statement bears “adequate ‘indicia of reliability.’” Id., at 66. To meet that test, evidence had to either fall within a “firmly rooted hearsay exception” or bear “particularized guarantees of trustworthiness.” Ibid. The Sixth Amendment’s Confrontation Clause provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” This bedrock procedural guarantee applies to both federal and state prosecutions. .

In , the Supreme Court held that the Confrontation Clause does not bar admission of an unavailable witness’s statement against a criminal defendant if the statement bears “adequate ‘indicia of reliability.’” ., at 66. To meet that test, evidence had to either fall within a “firmly rooted hearsay exception” or bear “particularized guarantees of trustworthiness.” Ibid.

People v. Superior Court (Jones ) (1998) 18 Cal.4th 667, 680-681, 76 Cal.Rptr.2d 641, 958 P.2d 393.) “Findings of fact are reviewed under a ‘substantial evidence’ standard.” ( Ibid. )

Under this standard, ” ‘a trial court’s ruling will not be disturbed, and reversal of the judgment [or order] is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’ ” ( People v. Hovarter (2008) 44 Cal.4th 983, 1004, 81 Cal.Rptr.3d 299, 189 P.3d 300 ; see People v. Kipp (1998) 18 Cal.4th 349, 371, 75 Cal.Rptr.2d 716, 956 P.2d 1169 [“[a] court abuses its discretion when its ruling ‘falls outside the bounds of reason’

substantive issues to the court’s findings, and the court abused  its discretion (see In re M.R. (2017) 7 Cal.App.5th 886, 902; Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300) in terminating jurisdiction and issuing the custody orders.

Gravamen of proof  (In re I.S., supra, 67 Cal.App.5th at p. 928) as the proof offered at the jurisdiction hearing.

“‘Substantial evidence is evidence that is “reasonable, credible, and of solid value”; such that a reasonable trier of fact could make such findings.'” (In re L.W., supra, 32 Cal.App.5th at p. 848.) “‘But substantial evidence “is not synonymous with any evidence. [Citations.] A decision supported by a mere scintilla of evidence need not be affirmed on appeal.”‘” (In re Joaquin C. (2017) 15 Cal.App.5th 537, 560.) “‘”Inferences may constitute substantial evidence, but they must be the product of logic and reason. Speculation or conjecture alone is not substantial evidence.'”” (Patricia W. v. Superior Court (2016) 244 Cal.App.4th 397, 420; see In re Ma.V., supra, 64 Cal.App.5th *19 at p. 22 [“Substantial evidence indicates more than a smidgeon or trace; it must be meaningful and significant and cannot be merely speculative.”]; In re Donovan L. (2016) 244 Cal.App.4th 1075, 1093 [a “juvenile court’s conclusion ‘supported by little more than speculation’ [is] not based on substantial evidence”].) The appellant has the burden to show there is no evidence of a sufficiently substantial nature to support the findings or order. (In re R.V. (2012) 208 Cal.App.4th 837, 843.)

where, as here, the parent appeals from the order terminating jurisdiction and the custody order, an appeal from jurisdiction findings is not moot where the sustained findings have an adverse effect on a parent’s custody or visitation rights. (See Rashad D., supra, 63 Cal.App.5th at p. 159 [“the parent must appeal not only from the jurisdiction finding . . . order but also from the orders terminating jurisdiction and modifying the parent’s prior custody status”].)

 

Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children. – Troxel v. Granville, 530 U.S. 57, at 65-6 (2000) state court judge does NOT HAVE the discretion to determine the best interests of the child in these situations THIS violates due process, especially when there is no allegation that the parent is unfit. It is reasonable to presume that parents will act in the best interests of their children, so the state should not interfere and take that role away from them.

 

The Fourteenth Amendment’s Due Process Clause has a substantive component that “provides heightened protection against government interference with certain fundamental rights and liberty interests,” Washington v. Glucksberg, 521 U. S. 702, 720, including parents’ fundamental right to make decisions concerning the care, custody, and control of their children, see, e. g., Stanley v. Illinois, 405 U. S. 645, 651. Pp.63-66.

There is a presumption that fit parents act in their children’s best interests, Parham v. J. R., 442 U. S. 584, 602; there is normally no reason for the State to inject itself into the private realm of the family to further question fit parents’ ability to make the best decisions regarding their child, my son, see, e. g., Reno v. Flores, 507 U. S. 292, 304.

 

Family Court Sanctions Ruling Results in Father’s Rights to Visit being Strengthened

Featherstone v. Martinez –  “[i]n a vacuum, [Mother’s] declaration contained lies, was misleading, entitled, controlling, manipulative, constitutionally abusive, and dismissive of any rights to meaningfully participate in co-parenting from the initial requests and arguments of the initial filing till now [Father].”  The court deemed the request “that the court prevent overnights for two years, while limiting [Father] to an approximately one-quarter or one-half of one percent timeshare for those two years” “in and of itself, sanctionable”

Featherstone v. Martinez – “[T]he way you wrote it, it was along the lines of, I control everything, I’m the boss, and, you know, I’ll do him a favor and let him see his child.  That is not how it works. You are co-equal parents. Moms get the advantage because technically, literally, when a child is born, they are there, obviously. But then when it comes to court, they think, well, I’m the mom. I always win.” Mother agreed Father had always been involved in Minor’s life and the court then remarked, “So it’s not a lack of familiarity. You should literally be at 50/50. Not, I let him see her whenever he wants.  But he has a weird travel schedule.”

When Mother informed the court that, during mediation, she offered Father six hours of visitation “or whenever he’s home[,]” the court asked Mother if she would like it if the roles were reversed and said: “I know how hard it is.  You gave birth to the child.  You held the child.  You’ve taken care of this child.  It’s hard to conceptualize that he is every bit of the parent that you are, especially in this case because he’s been there from birth.”  The court then said, “So here’s the law:  If everything is equal, you’re supposed to be sharing 50/50.  Not six hours.  50/50.”

The court then made its ruling as follows: “I’m going to side completely with respondent today, and I think in the future you’re going to have a really hard time, because although I’ve tried to explain it, emotionally—and I understand—you do not feel like he’s an equal parent and you feel like you need to drag this out and make it slow.”

 

 

 

 

 

 

 

 

 

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FAM § 3027.1 – Attorney’s Fees and Sanctions For False Child Abuse Allegations – Family Code 3027.1 – Click Here

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At issue in Rosenfeld v. New Jersey (1972) was whether a conviction under state law prohibiting profane language in a public place violated a man's First Amendment's protection of free speech. The Supreme Court vacated the man's conviction and remanded the case for reconsideration in light of its recent rulings about fighting words. The man had used profane language at a public school board meeting. (Illustration via Pixabay, public domain) Epic Parents SCOTUS Ruling – Parental Right$ Help – Click Here

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The Parental Rights Amendment is currently in the U.S. Senate, and is being introduced in the U.S. House.

 

 

 

 

]]> Jurisdiction – Judge’s Qualified Immunity – Judicial Ethics for Pro Se Litigants https://goodshepherdmedia.net/jurisdiction-judges-immunity-judicial-ethics/ Sun, 17 Jul 2022 08:45:56 +0000 https://goodshepherdmedia.net/?p=4708

Judge’s Jurisdiction – Judicial Ethics for Pro Se Litigants

Piercing a Judges’ Qualified Immunity 

You can’t But he can, and many do………..

JUDGE’S’ PIERCING THEIR OWN IMMUNITY OF PROTECTION OPENING THEMSELVES UP TO CIVIL RETALIATION

NOT ALWAYS IMMUNE WHEN THEY PIERCE IT THEMSELVES

 

 

 

 

after reading this article learn more on the subject Jurisdiction vs Venue below:

What Is Jurisdiction? Jurisdition vs Venue? (click here)

 

 

 

How Far Does Judicial Immunity & Where it End$ Click Here to Learn More

 

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 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

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 no 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.

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). (HEAD DISTRICT ATTORNEY & HEADMASTER JUDGE)

“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

“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.

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)]

“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.” 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. 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.”

“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. 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 509516, “Federal tort law: judges cannot invoke judicial immunity for acts that violate litigants’ civil rights.” – Robert Craig Waters.

“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.

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.” Maine v. Thiboutot, 448 U.S. 1 Mookini v. U.S., 303 U.S. 201 (1938) “The term ‘District Courts of the United States’ as used in the rules without an addition expressing a wider connotation, has its historic significance. It describes the constitutional courts created under Article 3 of the Constitution. Courts of the Territories are Legislative Courts, properly speaking, and are not district courts of the United States. We have often held that vesting a territorial court with jurisdiction similar to that vested in the district courts of the United States (98 U.S. 145) does not make it a ‘District Court of the United States’.

“Not only did the promulgating order use the term District Courts of the United States in its historic and proper sense, but the omission of provision for the application of the rules the territorial court and other courts mentioned in the authorizing act clearly
shows the limitation that was intended.“

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.

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.

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.” 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.”

When there is substantive issues to the court’s findings, and the court abused  its discretion (see In re M.R. (2017) 7 Cal.App.5th 886, 902; Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300) in terminating jurisdiction and issuing the custody orders.

THIS CLARIFY YOU DON’T GET TO GO AROUND CHANGING IT FOR YOURSELF 

28 U.S. Code § 144 – Bias or prejudice of judge

Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.

(June 25, 1948, ch. 646, 62 Stat. 898; May 24, 1949, ch. 139, § 65, 63 Stat. 99.)

Rule 2.3: Bias, Prejudice, and Harassment

(A) A judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice.

(B) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials, or others subject to the judge’s direction and control to do so.

(C) A judge shall require lawyers in proceedings before the court to refrain from manifesting bias or prejudice, or engaging in harassment, based upon attributes including but not limited to race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, against parties, witnesses, lawyers, or others.

(D) The restrictions of paragraphs (B) and (C) do not preclude judges or lawyers from making legitimate reference to the listed factors, or similar factors, when they are relevant to an issue in a proceeding.

Standing on YOUR rights as a citizen to use my rights as a citizen

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

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

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.”

 

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 employs of the sanctity 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.”

Harris v. Harvey (1979) The jury concluded that Harvey was not eligible for judicial immunity for these actions, as such acts which were not part of the judge’s normal duties (i.e. were “outside his jurisdiction”). The jury awarded Harris $260,000 damages. Another judge later added $7,500 legal fees. The United States Court of Appeals for the Seventh Circuit concurred with the jury’s decision. Judge Harvey petitioned the Seventh Circuit court for an en banc rehearing, which was denied. His petition to the Supreme Court was also denied. Harris v. Harvey is the first case in the United States where a sitting court judge has been sued and lost in a civil action; it is a binding precedent in the Seventh Circuit and is persuasive authority in the other circuits.

Supreme Court of Virginia v. Consumers Union (1980) Consumers Union filed a lawsuit in federal court against the Supreme Court of Virginia and others, under 42 U.S.C. § 1983, seeking to have the regulation declared unconstitutional and to enjoin the defendants from enforcing it.[22] The U.S. Supreme Court affirmed the Supreme Court of Virginia’s legislative immunity:

 

People v. Superior Court (Jones ) (1998) 18 Cal.4th 667, 680-681, 76 Cal.Rptr.2d 641, 958 P.2d 393.) “Findings of fact are reviewed under a ‘substantial evidence’ standard.” ( Ibid. )

Under this standard, ” ‘a trial court’s ruling will not be disturbed, and reversal of the judgment [or order] is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’ ” ( People v. Hovarter (2008) 44 Cal.4th 983, 1004, 81 Cal.Rptr.3d 299, 189 P.3d 300 ; see People v. Kipp (1998) 18 Cal.4th 349, 371, 75 Cal.Rptr.2d 716, 956 P.2d 1169 [“[a] court abuses its discretion when its ruling ‘falls outside the bounds of reason’

 

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.

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”

 

Judicial Ethics for Pro Se Litigants

Justice is the waying of facts presented in the case.  Most judges will eventually hear a case with pro se parties. With pro se parties, in the interest of assuring them the same access to justice as represented parties, even if that comes at times at the expense of procedural efficiency. As a result, cases with a pro se party can be more time-consuming and require more patience

In an advisory opinion, the California Judges Association Judicial Ethics Committee encouraged judges to “understand the difficulties encountered by self-represented litigants” and “to exercise discretion to treat them differently.”  California Judges Association Advisory Opinion 76 (2018).  The opinion emphasized that a “judge may make reasonable procedural accommodations that will provide a diligent self-represented litigant acting in good faith the opportunity to have his or her case fairly heard.”

The committee explained:

Some judges take the position that the job of the judge is to call the balls and strikes, not to throw the pitches.  Is this an accurate statement of the role of the judge?  Not necessarily. . . .  Fundamental justice should not be sacrificed to procedural rules and cases should be decided on their merits.  Exercising discretion – not just calling balls and strikes – is the nature of judging, from granting motions for extensions of time to handing out sentences.

Frequently, there is tension between the represented party and the self-represented litigant.  One side is ready to proceed, has done the legal work, and would like to complete the proceeding as soon as possible.  The self-represented litigant often is struggling with legal terms, time limits, and court procedures.  The judge must decide what reasonable accommodation is proper and when it is unreasonable.  Judges may grant continuances, explain legal terms, refer a litigant to self-help services or the library, or refer him or her to the local bar association for a low-cost meeting with an attorney.  Whether the judge should take any of these or other steps is a matter of judicial discretion.

The committee concluded:

The adversary system is not embedded in the Code of Judicial Ethics, nor is it the primary purpose of the code to protect the formalities of the adversary system.  Reasonable procedural accommodations for self-represented litigants do not change the facts, the law, or the burden of proof, nor do they ensure a victory for the unrepresented.  Such accommodations simply mean that both sides will have a fair opportunity to tell their stories.

The committee applied its analysis to several courtroom situations.  For example, the committee stated, a judge may, at the beginning of a civil case in which one litigant is unrepresented by counsel and the other is represented, explain how the proceedings will be conducted, including that the party bringing the action has the burden to present evidence in support of the relief sought, the kind of evidence that may be presented, and the kind of evidence that cannot be considered.  In addition, the opinion advised:

  • A judge may give a self-represented litigant a neutral explanation of how to respond to a motion for summary judgment.
  • A judge may provide a self-represented litigant information about the requirements for entry of a default judgment.
  • A judge may ask a self-represented litigant if she wants a continuance to bring a witness to court.
  • During a trial, a judge may ask witnesses neutral questions to clarify testimony and develop facts.
  • A judge may sign a settlement agreement prepared by the attorney for 1 party and signed by an unrepresented party, but, as a best practice, should ask the parties if they understand the document and ask the unrepresented party if she understands her responsibilities under the agreement.
  • When a self-represented litigant refers to information after being instructed not to, a judge is not required to grant a motion for a mistrial but may instruct the jury to disregard the testimony.
  • If an unrepresented plaintiff makes no specific claim for damages at the close of her case, the judge may ask the plaintiff, “Are you asking for damages in this case? If so, what is the amount you are asking for?  And why are you asking for this amount?”
  • In a criminal case, if a prosecutor tries to take advantage of a defendant’s unrepresented status to introduce the defendant’s prior drug-related arrest and the factual basis for a search, the judge should immediately intervene even if the defendant does not object.

In domestic violence cases, the committee stated, a judge:

  • May give the self-represented plaintiff a short continuance to learn about the relevant rules of evidence and the procedural requirements for the admission of hospital records,
  • Should permit a support person to accompany a self-represented moving party to counsel table, and
  • Should inform a self-represented respondent that he could present oral testimony.

Commentary to the California Code of Judicial Ethics states:  “[W]hen a litigant is self-represented, a judge has the dis­cretion to take reasonable steps, appropriate under the circumstances and con­sistent with the law and the canons to enable the litigant to be heard.”  Comment 4 to Rule 2.2 of the American Bar Association Model Code of Judicial Conduct states:  “It is not a violation of this Rule [requiring that a judge be fair and impartial] for a judge to make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard.”  34 states and the District of Columbia have added comment 4 or a version of comment 4 to their codes of judicial conduct.

https://ncscjudicialethicsblog.org/category/pro-se-litigants/

 

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.

 

California Civil Code Section 52.1

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

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.

Secret Canons of Judicial Conduct 

 

 

immunity immunity

 

 

immunity

 

 

 

 

 

ECONOMIC STATUS ATTACKS!

 

 

 

 

 

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

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

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

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

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

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

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

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

Learn More About True Threats Here below….

We also have the The Brandenburg v. Ohio (1969) – 1st Amendment

CURRENT TEST = We also have the The ‘Brandenburg test’ for incitement to violence – 1st Amendment

We also have the The Incitement to Imminent Lawless Action Test– 1st Amendment

We also have the True Threats – Virginia v. Black is most comprehensive Supreme Court definition – 1st Amendment

We also have the Watts v. United States – True Threat Test – 1st Amendment

We also have the Clear and Present Danger Test – 1st Amendment

We also have the Gravity of the Evil Test – 1st Amendment

We also have the Elonis v. United States (2015) – Threats – 1st Amendment

Learn More About What is Obscene…. be careful about education it may enlighten you

We also have the Miller v. California – 3 Prong Obscenity Test (Miller Test) – 1st Amendment

We also have the Obscenity and Pornography – 1st Amendment

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

$$ Retaliatory Arrests and Prosecution $$

Anti-SLAPP Law in California

Freedom of Assembly – Peaceful Assembly – 1st Amendment Right

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

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

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

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

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

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

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

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

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

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

Dwayne Furlow v. Jon Belmar – Police Warrant – Immunity Fail – 4th, 5th, & 14th Amendment

ARE PEOPLE LYING ON YOU? CAN YOU PROVE IT? IF YES…. THEN YOU ARE IN LUCK!

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

Penal Code 118.1 PC – Police Officer$ Filing False Report$

Spencer v. Peters– Police Fabrication of Evidence – 14th Amendment

Penal Code 148.5 PC –  Making a False Police Report in California

Penal Code 115 PC – Filing a False Document in California

Sanctions and Attorney Fee Recovery for Bad Actors

FAM § 3027.1 – Attorney’s Fees and Sanctions For False Child Abuse Allegations – Family Code 3027.1 – Click Here

FAM § 271 – Awarding Attorney Fees– Family Code 271 Family Court Sanction Click Here

Awarding Discovery Based Sanctions in Family Law Cases – Click Here

FAM § 2030 – Bringing Fairness & Fee Recovery – Click Here

Zamos v. Stroud – District Attorney Liable for Bad Faith Action – Click Here

Mi$Conduct – Pro$ecutorial Mi$Conduct

Prosecutor$

Attorney Rule$ of Engagement – Government (A.K.A. THE PRO$UCTOR) and Public/Private Attorney

What is a Fiduciary Duty; Breach of Fiduciary Duty

The Attorney’s Sworn Oath

Malicious Prosecution / Prosecutorial Misconduct – Know What it is!

New Supreme Court Ruling – makes it easier to sue police

Possible courses of action Prosecutorial Misconduct

Misconduct by Judges & Prosecutor – Rules of Professional Conduct

Functions and Duties of the Prosecutor – Prosecution Conduct

Criminal Motions § 1:9 – Motion for Recusal of Prosecutor

Pen. Code, § 1424 – Recusal of Prosecutor

Removing Corrupt Judges, Prosecutors, Jurors and other Individuals & Fake Evidence from Your Case

Mi$Conduct – Judicial Mi$Conduct

Judge$

Prosecution Of Judges For Corrupt Practice$

Code of Conduct for United States Judge$

Disqualification of a Judge for Prejudice

Judicial Immunity from Civil and Criminal Liability

Recusal of Judge – CCP § 170.1 – Removal a Judge – How to Remove a Judge

l292 Disqualification of Judicial Officer – C.C.P. 170.6 Form

How to File a Complaint Against a Judge in California?

Commission on Judicial Performance – Judge Complaint Online Form

Why Judges, District Attorneys or Attorneys Must Sometimes Recuse Themselves

Removing Corrupt Judges, Prosecutors, Jurors and other Individuals & Fake Evidence from Your Case

Misconduct by Government Know Your Rights Click Here (must read!)

 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?

PARENT CASE LAW 

RELATIONSHIP WITH YOUR CHILDREN &
YOUR CONSTITUIONAL RIGHT$ + RULING$

YOU CANNOT GET BACK TIME BUT YOU CAN HIT THOSE IMMORAL NON CIVIC MINDED PUNKS WHERE THEY WILL FEEL YOU = THEIR BANK

Family Law Appeal – Learn about appealing a Family Court Decision Here

9.3 Section 1983 Claim Against Defendant as (Individuals) —
14th Amendment this CODE PROTECT$ all US CITIZEN$

Amdt5.4.5.6.2 – Parental and Children’s Rights –
5th Amendment this CODE PROTECT$ all US CITIZEN$

9.32 – Interference with Parent / Child Relationship –
14th Amendment this CODE PROTECT$ all US CITIZEN$

California Civil Code Section 52.1
Interference with exercise or enjoyment of individual rights

Parent’s Rights & Children’s Bill of Rights
SCOTUS RULINGS FOR YOUR PARENT RIGHTS

SEARCH of our site for all articles relating for PARENTS RIGHTS Help!

Child’s Best Interest in Custody Cases

Are You From Out of State (California)?  FL-105 GC-120(A)
Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

Learn More:Family Law Appeal

Necessity Defense in Criminal Cases

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

DUE PROCESS READS>>>>>>

Due Process vs Substantive Due Process learn more HERE

Understanding Due Process  – This clause caused over 200 overturns in just DNA alone Click Here

Mathews v. Eldridge – Due Process – 5th & 14th Amendment Mathews Test – 3 Part Test– Amdt5.4.5.4.2 Mathews Test

“Unfriending” Evidence – 5th Amendment

At the Intersection of Technology and Law

We also have the Introducing TEXT & EMAIL Digital Evidence in California Courts – 1st Amendment
so if you are interested in learning about Introducing Digital Evidence in California State Courts
click here for SCOTUS rulings

Retrieving Evidence / Internal Investigation Case 

Conviction Integrity Unit (“CIU”) of the Orange County District Attorney OCDA – Click Here

Fighting Discovery Abuse in Litigation – Forensic & Investigative Accounting – Click Here

Orange County Data, BodyCam, Police Report, Incident Reports,
and all other available known requests for data below: 

APPLICATION TO EXAMINE LOCAL ARREST RECORD UNDER CPC 13321 Click Here

Learn About Policy 814: Discovery Requests OCDA Office – Click Here

Request for Proof In-Custody Form Click Here

Request for Clearance Letter Form Click Here

Application to Obtain Copy of State Summary of Criminal HistoryForm Click Here

Request Authorization Form Release of Case Information – Click Here

Texts / Emails AS EVIDENCE: Authenticating Texts for California Courts

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

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

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

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

CPRA Public Records Act Data Request – Click Here

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

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

 

Appealing/Contesting Case/Order/Judgment/Charge/ Suppressing Evidence

First Things First: What Can Be Appealed and What it Takes to Get Started – Click Here

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

Cal. Code Civ. Proc. § 1008 Motion to Reconsider

Penal Code 1385 – Dismissal of the Action for Want of Prosecution or Otherwise

Penal Code 1538.5 – Motion To Suppress Evidence in a California Criminal Case

CACI No. 1501 – Wrongful Use of Civil Proceedings

Penal Code “995 Motions” in California –  Motion to Dismiss

WIC § 700.1 – If Court Grants Motion to Suppress as Evidence

Suppression Of Exculpatory Evidence / Presentation Of False Or Misleading Evidence – Click Here

Notice of Appeal — Felony (Defendant) (CR-120)  1237, 1237.5, 1538.5(m) – Click Here

California Motions in Limine – What is a Motion in Limine?

Cleaning Up Your Record

Penal Code 851.8 PC – Certificate of Factual Innocence in California

Petition to Seal and Destroy Adult Arrest Records – Download the PC 851.8 BCIA 8270 Form Here

SB 393: The Consumer Arrest Record Equity Act – 851.87 – 851.92  & 1000.4 – 11105 – CARE ACT

Expungement California – How to Clear Criminal Records Under Penal Code 1203.4 PC

How to Vacate a Criminal Conviction in California – Penal Code 1473.7 PC

Seal & Destroy a Criminal Record

Cleaning Up Your Criminal Record in California (focus OC County)

Governor Pardons – What Does A Governor’s Pardon Do

How to Get a Sentence Commuted (Executive Clemency) in California

How to Reduce a Felony to a Misdemeanor – Penal Code 17b PC Motion

 Epic Criminal / Civil Right$ SCOTUS Help – Click Here

At issue in Rosenfeld v. New Jersey (1972) was whether a conviction under state law prohibiting profane language in a public place violated a man's First Amendment's protection of free speech. The Supreme Court vacated the man's conviction and remanded the case for reconsideration in light of its recent rulings about fighting words. The man had used profane language at a public school board meeting. (Illustration via Pixabay, public domain) Epic Parents SCOTUS Ruling – Parental Right$ Help – Click Here

Judge’s & Prosecutor’s Jurisdiction– SCOTUS RULINGS on

Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors

 

Family Treatment Court Best Practice Standards

Download Here this Recommended Citation

Please take time to learn new UPCOMING 

The PROPOSED Parental Rights Amendment
to the US CONSTITUTION Click Here to visit their site

The proposed Parental Rights Amendment will specifically add parental rights in the text of the U.S. Constitution, protecting these rights for both current and future generations.

The Parental Rights Amendment is currently in the U.S. Senate, and is being introduced in the U.S. House.

 

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