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Epic SCOTUS Decisions

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Epic SCOTUS Decisions

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

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

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

Pro$ecutor‘$ Duty to the citizen

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

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

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

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

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

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

Zamos v. Stroud

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

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

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

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

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

Other Pro$ecutor Caselaw:

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

FEDERAL MALICIOUS PROSECUTION LAW FROM 1994 TO 2017

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

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

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

FEDERAL MALICIOUS PROSECUTION LAW FROM 1994 TO 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Constitutional Tort Law and Legal Definition

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

42 USCS § 1983 reads as follows:

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

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

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

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

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

Malicious Prosecution / Prosecutorial Misconduct – Know What it is!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Spencer v. Peters

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

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

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

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

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

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

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

Excerpts taken from SCOTUS around Robin v. Hardaway

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

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

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

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

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

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

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

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

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

FRAUD$ BY GOVERNMENT

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

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

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

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

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

Overview of Contract Clause

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

FLYER & NEWS WEBSITE LAW

Flyers US constitutional rights, Freedom of Speech & Press

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

U.S. Supreme Court

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

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

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

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

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

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

FREEDOM OF THE PRESS DEFINITION

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

HANDBILL DEFINITION

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

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

LITTER DEFINITION

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

TRASH DEFINITION

Unwanted or undesired waste material.

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

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

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

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

To Wit:

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

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

Under the US Constitution.

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

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

you have given the agency, etc. knowledge!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The People are the Sovereign!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Call Recording In California

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

My workplace cameras record 24/7 in safe workplace areas

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

learn more

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Jurisdiction challenged to all, at any and all times

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

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

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

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

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

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

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

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

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

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

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

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

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

to read the full statute click link below
cited

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

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

Section 1983 Lawsuit – How to Bring a Civil Rights Claim

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

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

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

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

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

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

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

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

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

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

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

Pro Se Case Law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Introducing Digital Evidence in California State Courts

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

Mandated Reporting Laws

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

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

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

California Constitution
Article VI – Judicial
Section 13.

Universal Citation: CA Constitution art VI § 13

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

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

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

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

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

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

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

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

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

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

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

$$ Retaliatory Arrests and Prosecution $$

Anti-SLAPP Law in California

Freedom of Assembly – Peaceful Assembly – 1st Amendment Right

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

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

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

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

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

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

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

Can You Annoy the Government? – 1st Amendment

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

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

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

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

Paglia & Associates Construction v. Hamilton – Public Internet Posts & Public Criticisms – Bad Reviews – 1st Amendment

Right to Record Government Officials Engaged in the Exercise of their Official Duties

CITIZENS UNITED v. FEDERAL ELECTION COMMISSION – 1st Amendment

American Civil Liberties Union of Illinois v. Alvarez – 1st Amendment

Illinois Supreme Court Strikes Down Eavesdropping Statute as Unconstitutional – 1st Amendment

303 Creative LLC v. Elenis – 1st Amendment

Texas v. Johnson – Offensive? – 1st Amendment

Snyder v. Phelps (2011) – Offensive? – 1st Amendment

The Consumer Review Fairness Act – What It Is & Why It Matters

Learn More About True Threats Here below….

Counterman v. Colorado – Supreme Court sets higher bar for prosecuting threats under First Amendment

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

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

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

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

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

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

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

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

Speech Is Not Violence and Violence Is Not Speech

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

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

We also have the Obscenity and Pornography – 1st Amendment

Mi$Conduct – Pro$ecutorial Mi$Conduct Prosecutor$

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

What is a Fiduciary Duty; Breach of Fiduciary Duty

The Attorney’s Sworn Oath

Malicious Prosecution / Prosecutorial Misconduct – Know What it is!

New Supreme Court Ruling – makes it easier to sue police

Possible courses of action Prosecutorial Misconduct

Misconduct by Judges & Prosecutor – Rules of Professional Conduct

Functions and Duties of the Prosecutor – Prosecution Conduct

Standards on Prosecutorial Investigations – Prosecutorial Investigations

Information On Prosecutorial Discretion

Why Judges, District Attorneys or Attorneys Must Sometimes Recuse Themselves

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

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

Pen. Code, § 1424 – Recusal of Prosecutor

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

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

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

ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

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

Chapter 14 Disclosure of Exculpatory and Impeachment Information PDF

Selected Issues in Malicious Prosecution Cases

Mi$Conduct – Judicial Mi$Conduct Judge$

Prosecution Of Judges For Corrupt Practice$

Code of Conduct for United States Judge$

Disqualification of a Judge for Prejudice

Judicial Immunity from Civil and Criminal Liability

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

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

How to File a Complaint Against a Judge in California?

Commission on Judicial Performance – Judge Complaint Online Form

Why Judges, District Attorneys or Attorneys Must Sometimes Recuse Themselves

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

DUE PROCESS READS>>>>>>

Due Process vs Substantive Due Process learn more HERE

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

Mathews v. Eldridge – Due Process – 5th, & 14th Amendment

Mathews Test – 3 Part Test– Amdt5.4.5.4.2 Mathews Test

“Unfriending” Evidence – 5th Amendment

At the Intersection of Technology and Law

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

Right to Travel freely – When the Government Obstructs Your Movement – 14th Amendment & 5th Amendment

What is Probable Cause? and.. How is Probable Cause Established?

Misuse of the Warrant System – California Penal Code § 170 – Crimes Against Public Justice – 4th, 5th, & 14th Amendment

What Is Traversing a Warrant (a Franks Motion)?

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

Obstruction of Justice and Abuse of Process

What Is Considered Obstruction of Justice in California?

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

Penal Code 115 PC – Filing a False Document in California

Penal Code 118 PC – California Penalty of “Perjury” Law

Federal Perjury – Definition by Law

Penal Code 132 PC – Offering False Evidence

Penal Code 134 PC – Preparing False Evidence

Crimes Against Public Justice

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

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

Lying Cop or Citizen – PC 129 – Preparing False Statement or Report Under Oath

Penal Code 132 PC – Offering False Evidence

Penal Code 134 PC – Preparing False Evidence

Penal Code 135 PC – Destroying or Concealing Evidence

Lying Cop or Citizen – PC 129 – Preparing False Statement or Report Under Oath

Penal Code 141 PC – Planting or Tampering with Evidence in California

Penal Code 142 PC – Peace Officer Refusing to Arrest or Receive Person Charged with Criminal Offense

PC 146 Penal Code – False Arrest

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

Misuse of the Warrant System – California Penal Code § 170

Penal Code 182 PC – “Criminal Conspiracy” Laws & Penalties

Penal Code § 236 PC – False Imprisonment

Penal Code 664 PC – “Attempted Crimes” in California

Penal Code 31 PC – Aiding and Abetting Laws

Penal Code 32 PC – Accessory After the Fact

What is Abuse of Process?

What is a Due Process Violation? – 4th Amendment & 14th Amendment

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

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

The Use and Abuse of Power by Prosecutors (Justice for All)

Misconduct by Government Know Your Rights Click Here

Under 42 U.S.C. $ection 1983 – Recoverable Damage$

42 U.S. Code § 1983 – Civil Action for Deprivation of Right$

18 U.S. Code § 242 – Deprivation of Right$ Under Color of Law

18 U.S. Code § 241 – Conspiracy against Right$

Section 1983 Lawsuit – How to Bring a Civil Rights Claim

Suing for Misconduct – Know More of Your Right$

Police Misconduct in California – How to Bring a Lawsuit

How to File a complaint of Police Misconduct? (Tort Claim Forms here as well)

Deprivation of Rights – Under Color of the Law

What is Sua Sponte and How is it Used in a California Court?

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

Anti-SLAPP Law in California

Freedom of Assembly – Peaceful Assembly – 1st Amendment Right

How to Recover “Punitive Damages” in a California Personal Injury Case

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

What is Tort?

Tort Claims Form
File Government Claim for Eligible Compensation

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

See Information Guides and Resources below for more information.

Tort Claims – Claim for Damage, Injury, or Death (see below)

Federal – Federal SF-95 Tort Claim Form Tort Claim online here or download it here or here from us

California – California Tort Claims Act – California Tort Claim Form Here or here from us

Complaint for Violation of Civil Rights (Non-Prisoner Complaint) and also UNITED STATES DISTRICT COURT PDF

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

WRITS and WRIT Types in the United States

Everything you need to know about a Defamation Case

How do I submit a request for information?

To submit a request send the request via mail, fax, or email to the agency. Some agencies list specific departments or people whose job it is to respond to PRA requests, so check their websites or call them for further info. Always keep a copy of your request so that you can show what you submitted and when.

Templates for Sample Requests

Incident Based Request: Use this template if you want records related to a particular incident, like the investigative record for a specific police shooting, an arrest where you believe an officer may have been found to have filed a false report, or to find out whether complaint that an officer committed sexual assault was sustained.
ACLU Download Word document | ACLU Download PDF

or from us Download Word document | or from us Download PDF

Officer Based Request: Use this template if you want to find any public records of misconduct related to a particular officer or if he or she has been involved in past serious uses of force.
ACLU Download Word document | ACLU Download PDF

or from us Download Word document | or from us Download PDF

The First Amendment Coalition also has some useful information to help explain the PRA process.

Sample Letter | SB 1421 & SB 16 Records

Download Word document | Download PDF

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

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

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

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

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

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

CACI No. 1501 – Wrongful Use of Civil Proceedings

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

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

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

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

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

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

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

Retrieving Evidence / Internal Investigation Case

Pitchess Motion & the Public Inspection of Police Records

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

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

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

SEARCH SB-1421 SB-16 Incidents of LA County, Oakland

California Senate Bill 16 (SB 16) – 2023-2024 – Peace officers: Release of Records

APPLICATION TO EXAMINE LOCAL ARREST RECORD UNDER CPC 13321 Click Here

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

Request for Proof In-Custody Form Click Here

Request for Clearance Letter Form Click Here

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

Request Authorization Form Release of Case Information – Click Here

Texts / Emails AS EVIDENCE: Authenticating Texts for California Courts

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

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

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

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

Rules of Admissibility – Evidence Admissibility

Confrontation Clause – Sixth Amendment

Exceptions To The Hearsay Rule – Confronting Evidence

Prosecutor’s Obligation to Disclose Exculpatory Evidence

Successful Brady/Napue Cases – Suppression of Evidence

Cases Remanded or Hearing Granted Based on Brady/Napue Claims

Unsuccessful But Instructive Brady/Napue Cases

ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

Frivolous, Meritless or Malicious Prosecution – fiduciary duty

Section 832.7 – Peace officer or custodial officer personnel records

Senate Bill No. 1421 – California Public Records Act

Assembly Bill 748 Makes Video Evidence Captured by Police Agencies Subject to Disclosure as Public Records

SB 2, Creating Police Decertification Process and Expanding Civil Liability Exposure

The Right To Know: How To Fulfill The Public’s Right Of Access To Police Records

How Access to California Police Records

Los Angeles County Sheriff’s Department SB-1421 Records

SB1421 – Form Access to California Police Records

California Statewide CPRA Requests Submit a CPRA Request

Electronic Audio Recording Request of OC Court Hearings

CPRA Public Records Act Data Request – Click Here

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

Police BodyCam Footage Release

Cleaning Up Your Record

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

Penal Code 851.8 PC – Certificate of Factual Innocence in California

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

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

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

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

Seal & Destroy a Criminal Record

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

Governor Pardons –What Does A Governor’s Pardon Do

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

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

PARENT CASE LAW

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

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

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

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

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

Father’s Rights and Parents Rights THE CONSTITUTIONAL FRAMEWORK OF FATHERS’ RIGHTS

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

California Civil Code Section 52.1 – The Bane ActInterference with exercise or enjoyment of individual rights

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

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

Child’s Best Interest in Custody Cases

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

Learn More:Family Law Appeal

Necessity Defense in Criminal Cases

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

Venue in Family Law Proceedings

GRANDPARENT CASE LAW

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

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

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

Distinguishing Request for Custody from Request for Visitation

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

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

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

Child’s Best Interest in Custody Cases

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

Joinder In Family Law Cases – CRC Rule 5.24

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

Motion to vacate an adverse judgment

Mandatory Joinder vs Permissive Joinder – Compulsory vs Dismissive Joinder

When is a Joinder in a Family Law Case Appropriate?

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

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

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

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

Ian J. v. Peter M

Family Treatment Court Best Practice Standards

Download Here this Recommended Citation

Sanctions and Attorney Fee Recovery for Bad Actors

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

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

Awarding Discovery Based Sanctions in Family Law Cases – Click Here

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

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

Malicious Use of Vexatious Litigant – Vexatious Litigant Order Reversed

Epic Criminal / Civil Right$ SCOTUS Help – Click Here

Epic Parents SCOTUS Ruling – Parental Right$ Help – Click Here

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

Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors

Please take time to learn new UPCOMING

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

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

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

HOW TO LOOK UP A CASE IN THE CALIFORNIA COURT OF APPEAL OR CALIFORNIA SUPREME COURT

The Truth News — Sun, 07 Jul 2024 06:13:06 +0000

HOW TO LOOK UP A CASE IN THE CALIFORNIA COURT OF APPEAL OR CALIFORNIA SUPREME COURT

California makes the majority of appellate case information available to the public and can be easily accessed online. Case information includes the case summary, docket, disposition, briefs, parties and attorneys, and lower court. Both California’s Appellate Courts and Supreme Court case information sites update case information once each hour throughout the business day.

If you are looking for a specific case, or for your own case, in a California Court of Appeal or California Supreme Court, then you can take the following steps to find it.

Step 1: Go to the California Courts Webpage.

First, navigate to the California Courts: The Judicial Branch of California webpage. It can be found at the following link:
https://www.courts.ca.gov/.

Step 2: Scroll Halfway Down the California Courts Homepage.

About halfway down the California Courts homepage, you will see a headline labeled “Courts.” Under that, you will see the following categories:

Step 3: For California Court of Appeal Cases, Select Appellate Case Search.

California Courts Website – Appellate Courts Case Information – Search – Appellate Case Search – web UI screenshot – form.

Under the category “Courts of Appeal,” you will see a link for Appellate Case Search. Click on that link or type into your browser the following:
https://appellatecases.courtinfo.ca.gov/.

From that page, you can select which Appellate District you want to search within. Links for each Appellate District search page are as follows:

1^st Appellate District —
https://appellatecases.courtinfo.ca.gov/search.cfm?dist=1
2^nd Appellate District —
https://appellatecases.courtinfo.ca.gov/search.cfm?dist=2
3^rd Appellate District —
https://appellatecases.courtinfo.ca.gov/search.cfm?dist=3
4^th Appellate District —
https://appellatecases.courtinfo.ca.gov/search.cfm?dist=4
- Division 1 —
  https://appellatecases.courtinfo.ca.gov/search.cfm?dist=41
- Division 2 —
  https://appellatecases.courtinfo.ca.gov/search.cfm?dist=42
- Division 3 —
  https://appellatecases.courtinfo.ca.gov/search.cfm?dist=43
5^th Appellate District —
https://appellatecases.courtinfo.ca.gov/search.cfm?dist=5
6^th Appellate District —
https://appellatecases.courtinfo.ca.gov/search.cfm?dist=6

From there, you will be able to search by additional characteristics for the case for which you are searching.

If you are unsure which Appellate District your case is in, but know which California County Superior Court your trial case was heard in, you can easily find out which appellate court your case should be in. Here are the counties that each Appellate District court has jurisdiction over:

1^st Appellate District — Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin, Mendocino, Napa, San Francisco, San Mateo, Solano, and Sonoma.
2^nd Appellate District — San Luis Obispo, Santa Barbara, Ventura, and Los Angeles.
3^rd Appellate District — Alpine, Amador, Butte, Calaveras, Colusa, El Dorado, Glenn, Lassen, Modoc, Mono, Nevada, Placer, Plumas, Sacramento, San Joaquin, Shasta, Sierra, Siskiyou, Sutter, Tehama, Trinity, Yolo, and Yuba.
4^th Appellate District — San Diego, Inyo, Riverside, San Bernardino, and Orange.
5^th Appellate District — Fresno, Kern, Kings, Madera, Mariposa, Merced, Stanislaus, Tulare, and Tuolumne.
6^th Appellate District — Monterey, San Benito, Santa Clara, and Santa Cruz.

Step 4: For California Supreme Court Cases, Select Supreme Court Case Search.

California Courts Website – Appellate Courts Case Information – Search – Supreme Court Case Search – web UI screenshot – introduction.

Under the category “Supreme Court,” you will see a link for “Supreme Court Case Search.” Click on that link or type into your browser the following:
https://appellatecases.courtinfo.ca.gov/search.cfm?dist=0

Technically, you can access both California Court of Appeal cases and California Supreme Court cases from the initial link (https://appellatecases.courtinfo.ca.gov/); however, the link provided for the Supreme Court allows you to search additional characteristics within Supreme Court cases only.

Step 5: How to Search

From the Appellate Courts Case Information search page (https://appellatecases.courtinfo.ca.gov/), you can search for both California Court of Appeal cases and Supreme Court cases. First, you select which type of case you want. Then, you should select “Search.”

Once you get to the page within the court system that you are trying to search, you can narrow your search according to the following characteristics:

Case Number
Party (Last Name/Organization)
Attorney (Last Name/Law Firm)
Case Caption (Party v. Party)
Court Calendar Date (for Court of Appeal only)

Enter whatever information you have for the case and you will be taken to a Search Results page.

Step 6: Selecting Your Case

From the Search Results page, you will see a list of cases that match the characteristics you put into the search page. The following information will describe each case in the search results:

Supreme Court Case Number (and parties)
Court of Appeal Case Number
Trial Court Case Number
Attorney and Firm Name (this may not appear if you search by party name)

Next, you should click on the case number of the case for which you want to see the information. It will be highlighted and underlined when you move your mouse cursor over it.

Step 7: Reviewing Information About Your Case

Once you select the case you want to review, you will be taken to a webpage with information about that case specifically. There will also be the following information in what appears to be tabs:

Case Summary
Docket
Briefs
Disposition
Parties and Attorneys
Lower Court

You can click on each of the links on these tabs to review information about your case. Some of them may be blank if there is no information for that particular section.

Step 8: Getting E-Mail Updates About Your Cases

From the Case Search website, you can also sign up to receive automatic e-mail notifications about cases. In order to do that, select which court you want to find a case within on the initial search page (https://appellatecases.courtinfo.ca.gov/), and then instead of “Search,” select “E-mail.” You will be taken to a page where you can input your email address, the case number, and which case activity of which you want to be notified. source

Supreme Court Unanimously rules Trump will stay on ballot, overruling states

The Truth News — Mon, 04 Mar 2024 18:41:57 +0000

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

The Truth News — Sun, 28 Jan 2024 08:11:13 +0000

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

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“Civility” Oath Rule Adopted by Supreme Court

The Truth News — Mon, 23 Oct 2023 07:06:48 +0000

“Civility” Oath Rule Adopted by Supreme Court

The “civility” oath rule requires anyone admitted to practice law after 2014 to swear or affirm the following:

“As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy, and integrity”.

The rule was adopted by the California Supreme Court on May 1, 2014. The idea behind the rule is to:

Be fair to opposing counsel
Refrain from engaging in prejudicial conduct toward the administration of justice
Maintain the decorum of the tribunal

“Civility” Oath Rule Adopted by Supreme Court

Will apply to new lawyers

San Francisco—The California Supreme Court today announced that it has adopted rule 9.4 of the California Rules of Court to supplement the attorney oath for new lawyers. The oath will include a statement that the attorney will strive to conduct himself or herself with dignity, courtesy, and integrity.

“Rule 9.4 Oath required when admitted to practice law” was adopted by the Supreme Court at its administrative conference on April 23, 2014, and will be added to Title 9. Rules On Law Practice, Attorneys, And Judges of the California Rules of Court effective May 23, 2014. The adoption of the rule was consistent with the nationwide efforts, led in part by the American Board of Trial Advocates (ABOTA), to include a “civility” provision to the oaths taken by lawyers admitted to the bar in jurisdictions nationwide.

Mr. Mark Robinson, Jr., commented “As president of ABOTA and also as a member of California’s Judicial Council, I really praise the Chief Justice and the Supreme Court regarding the passing of the courtesy and integrity oath. We need lawyers who are courteous to other lawyers and to the courts, and we need lawyers with integrity. This is a great thing for justice here in California and it’s great for the Judicial Council, national ABOTA, and the people of California.”

Rule 9.4 states “In addition to the language required by Business and Professions Code section 6067, the oath to be taken by every person on admission to practice law is to conclude with the following: ‘As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy, and integrity.’ ”

“The State Bar was pleased to work with Doug DeGrave and CAL-ABOTA in urging the court to adopt this additional measure, and it is our belief that it will create an added reinforcement for attorneys entering the bar in California to remember the principles of professionalism that brought them to the practice in the first place and in particular in their dealings with clients, other attorneys, and judges” said Mr. Patrick Kelly, immediate past-president of the State Bar of California, “This was the highest priority for Doug and I, so we’re delighted that the court has made this addition to the rules.”

With the adoption of the new rule, the entire oath to be taken upon the admission to practice law will now be as follows: “I solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of California, and that I will faithfully discharge the duties of an attorney and counselor at law to the best of my knowledge and ability. As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy, and integrity.”

According to Mr. Douglas DeGrave, immediate past president of the California Chapters of the American Board of Trial Advocates (CAL-ABOTA), “This revision to the oath is an historic moment for the legal community. This change in the oath should remind us of our obligations beyond that of zealous advocacy on behalf of our clients. As professionals, we have an obligation to conduct ourselves with dignity, courtesy, and integrity. Many have forgotten these very principles to which we, as professionals, should always adhere. As an organization, CAL-ABOTA is proud of this accomplishment and our partnership with the State Bar. Needless to say, we are very pleased with the adoption of rule 9.4.”

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Attorneys are first and foremost advocates for their clients’ causes. That is, California attorneys are called upon to be “zealous” advocates for their clients. The Supreme Court of California has affirmed this on several occasions stating that once a lawyer agrees to representation of a client, they must represent the client “zealously, within the bounds of the law.”[1] However, recent appellate court decisions have sought to temper the “zealousness” of advocacy with the equally important concepts of civility and cooperation:

We close this discussion with a reminder to counsel—all counsel, regardless of practice, regardless of age—that zealous advocacy does not equate with ‘attack dog’ or ‘scorched earth’; nor does it mean lack of civility. [Citations.] Zeal and vigor in the representation of clients are commendable. So are civility, courtesy, and cooperation. They are not mutually exclusive.[2]

These courts recognize that California attorneys owe duties to their clients but also to the justice system itself.[3] Often, the demands of these two duties are not harmonious and can place attorneys in a position where they must choose between competing duties to each. While attorneys are expected to represent clients to the best of their ability and owe a duty to clients to present the case with vigor in a manner that is as favorable to the client as applicable law permits, an attorney is also an officer of the court and must work to maintain the integrity of the justice system through truthful advocacy in and outside the courtroom. How then can attorneys reliably determine the ethical limits of their advocacy?

The fundamental answer is that all advocacy—even zealous advocacy—must remain within the bounds of law. This article provides a brief overview of the ethical limits of zealous advocacy by examining two foundational duties included in Bus. & Prof. Code § 6068 and their related rules in the California Rules of Professional Conduct (“RPC”).

Bus. & Prof. Code § 6068 identifies several important duties to the justice system imposed on all California attorneys. In general, these duties require an attorney not only to consider their client’s directives and interests but also to undertake an independent ethical evaluation of their conduct or proposed course of action on behalf of a client to ensure it falls within the limits imposed on their advocacy by the applicable ethical laws and rules.

First, paragraph (a) of § 6068 provides that it is a duty of an attorney to “support the Constitution and laws of the United States and of this state.”[4] This is a foundational attorney duty that seeks to ensure that any conduct or advocacy by an attorney on behalf of a client does not contravene the Constitution and laws of the federal government or California. While § 6068(a) seems to merely be a straightforward duty to obey the law, there is much more in view. This is evident when one examines the related RPC.

Rule 1.2.1(a) and (b)(2) expands on the duty set forth in § 6068(a). It states that a lawyer “shall not counsel a client to engage or assist a client in conduct that the lawyer knows is criminal, fraudulent, or a violation of any law, rule, or ruling of a tribunal” except that the lawyer may “counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of a law, rule or ruling of a tribunal.” By prohibiting a lawyers counseling or assisting a client in criminal, fraudulent or unlawful conduct, rule 1.2.1 emphasizes that an attorney’s advocacy must include independent considerations beyond the directives and goals of a client. Moreover, an attorney is not required to simply walk away from a client in such a situation but instead may assist the client to understand the valid scope, meaning and application of the law at issue. In fact, rule 1.2.1(b)(1) explicitly provides that a lawyer “may…discuss the legal consequences of any proposed course of conduct with the client.” That is, the attorney can guide a client away from errant objectives through a better understanding of the law as well as help the client find a remedy that will serve their interests through valid and good faith application of law. Put another way, an attorney is authorized to counsel a client “off the ethical ledge” if they appear to have a criminal or fraudulent objective.

However, in providing counseling, an attorney must walk a fine line. As pointed out in comment [1] of rule 1.2.1, there is a critical distinction between presenting an analysis of questionable conduct and recommending how a crime or fraud might be committed with impunity. Thus, harmonizing the needs of the client with the integrity of the justice system is realized when an attorney acts within the ethical limits of advocacy outlined by law and the RPC.

A second foundational duty is found in Bus. & Prof. Code § 6068(c) which provides it is a duty of an attorney “to counsel or maintain those actions, proceedings, or defenses only as appear to him or her legal or just except the defense of a person charged with a public offense.”[5] Again, an attorney may not counsel a client to file a civil claim or action unless the attorney independently believes that claim or action is legal or just. An examination of the related RPC is helpful in fleshing out and understanding this duty.

Rule 3.1(a) prohibits an attorney from bringing or continuing an action, conducting a defense, asserting a position in litigation, or taking an appeal, “without probable cause and for the purpose of harassing or maliciously injuring any person”; or from presenting 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 the existing law.” Rule 3.1(a) adds considerations of probable cause, harassment or malicious injury, and good faith to help an attorney determine the ethical contours of advocacy on behalf of a client. By its reference to probable cause and good faith, rule 3.1 reminds attorneys that they must always consider their duties to the justice system as well as their obligations to a client. Moreover, by its reference to harassment and malicious injury, rule 3.1 emphasizes the importance of attorneys conforming their conduct with opposing parties and counsel within certain ethical limitations.[6]

We have all experienced instances where the tension between duties to the justice system and to clients have been difficult to resolve. Attorneys, however, are duty-bound to undertake an appropriate analysis to determine for their clients and themselves the ethical limits of their zealous advocacy in any given case. Bus. & Prof. Code § 6068(a) and (c) and the related rules discussed in this article provide guidance to assist attorneys in finding their way through difficult ethical decisions faced in the practice of law. The ethical restraint on unbridled advocacy also has the salubrious effect of making attorneys better advocates for their clients because it encourages creative thinking and “out-of-the-box” analysis that otherwise might be overlooked. It is important to remember that just because something can be done, it does not follow that it should. This is the basic truth of ethical zealous advocacy that all California attorneys are duty-bound to heed in their advocacy on behalf of their clients and as officers of the court.

See, e.g., Hawk v. Sup.Ct. (People) (1974) 42 Cal.App.3d 108, 126.
In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1537.
See Rule of Professional Conduct, rule 1.0(a).
See also Bus. & Prof. Code § 6067, which sets for the attorney’s oath “to support the Constitution of the United States and the Constitution of the State of California, and faithfully to discharge the duties of any attorney at law to the best of his knowledge and ability.”
The ethical limits in a criminal proceeding (or a proceeding that could result in incarceration, or involuntary commitment or confinement) are beyond the scope of this article and differ in important ways from the civil context. For instance, RPC rule 3.1(b) provides a lawyer for the defendant may defend the proceeding by requiring that every element of the case be established. This is not true in civil actions as discussed herein.
Attorneys would be well-served to remember that civility, courtesy, and cooperation with opposing parties and their counsel will not diminish the effectiveness of their ethical zealous advocacy.

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California Supreme Court to Weigh Civility Requirements for Lawyers

The notion of civility is mentioned frequently in multiple different contexts when discussing trends within the legal profession. In law school, law students are taught to follow the ABA’s Model Rules of Professional Conduct and the ethical obligations that come with taking the oath of professionalism as an attorney. Although often stated, the term civility is not defined specifically within any legal statutes or guidelines. This article will address what civility means within the legal profession and the fine line between zealous advocacy and acting without civility. Further, the article will discuss specific examples of incivility within the legal profession and how best to handle disagreements or aggressive communications with clients, opposing counsel, and outside parties.

Civility is an important concept within the legal profession that should be considered when acting as an advocate and counsel.

The state bar sent the court proposed rule changes that would subject rude lawyers to discipline.

State Bar trustees this week sent the California Supreme Court long-awaited proposed rule changes aimed at increasing civility in the legal profession.

The measures, drafted by dozens of judges and lawyers, call on bar members to annually commit to acting with “dignity, courtesy and integrity.” Those who fall short of those ethical standards would risk professional discipline.

“These proposals give us more tools as a profession to make it more welcome to women, to lawyers of color, to young lawyers and really to everyone,” said Justice Brian Currey, presiding justice of the Second District Court of Appeal, Division Four.

Currey chaired the task force that issued a 2021 report calling for mandatory training in civility for lawyers and judges as well as related changes in attorney disciplinary rules. The report’s recommendations provide the framework for the proposals sent to the state Supreme Court.

Since 2014, any lawyer admitted to practice in California has been required to take an oath that says “as an officer of the court, I will strive to conduct myself at all times with dignity, courtesy and integrity.” Lawyers admitted before then, however, did not have to make the same pledge.

If the state Supreme Court approves the proposed changes, starting in 2024 all lawyers will be required to repeat that pledge annually. Active lawyers who fail to do so will be placed on inactive status.

Proposed changes to the Rules of Professional Conduct also clarify that lawyers who avoid “offensive tactics” with opposing counsel, perform case tasks punctually and treat “with courtesy and consideration all persons involved in the legal profession” are not violating any obligations to their clients. Another amendment specifies that lawyers can be disciplined for “abusive or harassing” behavior.

A new RPC 8.4.2 defines incivility as “significantly unprofessional conduct that is abusive or harassing and shall be determined on the basis of all the facts and circumstances surrounding the conduct.”

The California Supreme Court has not taken a public position on the proposed changes. Currey said he recently spoke with Chief Justice Patricia Guerrero and “she is looking forward to receiving the proposal.”

Other states have lawyer civility oaths and professional requirements. Federal courts in California have civility guidelines. California has guidelines for its attorneys, too, and local bars and individual courts have adopted codes of behavior. Formal rules, however, have been discussed for decades but not yet enacted.

Although the proposed changes were circulated for public comment by the bar, responses were limited. Many of those who wrote in opposition did so anonymously and often suggested that civility is something that can’t be mandated by an RPC.

Leaders of several specialty bar associations wrote in support of the changes, saying it was time for pleas for civility among lawyers to carry some force.

“We believe it is necessary and appropriate for there to be repercussions for incivility and that it should be made clear we are not merely pay[ing] lip service to these ideas, but that a violation of these provisions can be a disciplinable offense,” Paul Reynolds, president of the Association of Business Trial Lawyers of San Diego, wrote.

Correction: The article was updated on 8/3/2023 to correct a quotation from Second District Court of Appeal Justice Brian Currey about his conversation with Chief Justice Patricia Guerrero concerning a proposed civility rule.

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Civility Defined

According to Merriam-Webster, the term civility is defined as civilized conduct or a polite act or expression.¹ Oxford Dictionary defines the term as “[f]ormal politeness and courtesy in behaviour or speech” or “[p]olite remarks used in formal conversation.”² These definitions are helpful in understanding the mechanics of the term, but what exactly falls within the purview of acting with civility?

The Model Rules of Professional Conduct state general notions that attorneys should be fair to opposing counsel, refrain from engaging in prejudicial conduct toward the administration of justice, and maintain the decorum of the tribunal.³ In addition, some states and local bar associations have adopted their own standards for civility that are more specific or detailed than the Model Rules.⁴ For example, California has adopted Attorney Guidelines of Civility and Professionalism, which is a set of voluntary guidelines and goals regarding best practices of civility in the legal profession.⁵ The District of Columbia Bar has adopted Voluntary Standards for Civility for attorneys to use as a guide for acting with civility in their legal practice.⁶ And New York has adopted Standards of Civility as well as Rules of Professional Conduct.⁷

The most common themes among a majority of state civility codes include

(1) recogniz[ing] the importance of keeping commitments and of seeking agreement and accommodation with regard to scheduling and extensions; (2) be[ing] respectful and act[ing] in a courteous, cordial, and civil manner; (3) be[ing] prompt, punctual, and prepared; (4) maintain[ing] honesty and personal integrity; (5) communicat[ing] with opposing counsel; (6) avoid[ing] actions taken merely to delay or harass; (7) ensur[ing] proper conduct before the court; (8) act[ing] with dignity and cooperation in pre-trial proceedings; (9) act[ing] as a role model to the client and public and as a mentor to young lawyers; and (10) utiliz[ing] the court system in an efficient and fair manner.⁸

Overall, civility is an important concept within the legal profession that should be considered when acting as an advocate and counsel. Civility can be defined simply as acting with formal politeness and courtesy when communicating or working with opposing parties, opposing counsel, clients, and outside parties.

Actions Not Rising to the Level of Civility

Although the term civility is used often, there are some common misconceptions as to what constitutes civility when it comes to conducting business within the legal profession.

First, civility is not the same as simply having good manners.⁹ Good manners could be considered a component of acting polite or courteous, but this alone does not constitute acting with civility. It is one thing to be a polite person, but it is another to act politely within the profession when dealing with difficult clients or opposing counsel in an adversarial environment. Although it may be considered uncivil to act with impoliteness, the concept of being polite is not the only component to achieving civility within the profession.

Second, liking someone is not within the purview of acting with civility. Civility is not demonstrated merely by showing amity toward those with whom you interact in your practice. According to author Jayne R. Reardon,

[c]ivility compels us to show respect even for strangers who may be sharing our space, whether in the public square, in the office, in the courtroom, or in cyberspace.¹⁰

However, the absence of criticism toward another does not automatically mean that you are acting with civility.¹¹ It can be argued that attorneys can act with civility as long as they do not vocalize their criticism of another person. Yet, civility is more focused on professionals’ conduct than on their negative or critical behavior toward someone else. Therefore, just because attorneys do not have critical thoughts against another does not mean that they are acting with civility.

Finally, attorneys are not necessarily acting with civility just because they are in agreement with others. Rather, “underlying the codes of civility is the assumption that people will disagree.”¹² This is further emphasized within the adversarial nature of the legal profession. Opposing parties can act with civility toward one another while disagreeing on their theories of liability or fault within a case. The nature of the legal profession is surrounded by disagreement in opinions when it comes to advocating for opposite sides of a case. Thus, civility does not mean agreeing with someone; instead, civility is the ability to act with politeness and professionalism when two parties disagree with one another.

How Civility Applies to the Legal Profession

As stated above, many states have adopted their own mandatory or voluntary standards or codes of civility to practice within the legal profession. In addition to these standards, there are ethical obligations that all attorneys must abide by in order to practice law.

Model Rules of Professional Conduct.One of the requirements for becoming an attorney is passing the Multistate Professional Responsibility Examination (MPRE), an exam designed to measure the knowledge and understanding of established standards related to a lawyer’s professional conduct. Each state has adopted a minimum score that an aspiring attorney needs to achieve on the exam in order to be admitted to the state’s bar.

The MPRE tests, among other things, knowledge of the Model Rules of Professional Conduct. The Model Rules are adopted, in one form or another, by each state in order to ensure that attorneys are held accountable for acting in a professional manner. These rules specifically hit the key points and concepts of ethical standards that attorneys must follow within the legal profession.

Although civility is not expressly defined, there are some specific rules that pertain to civility among attorneys within the profession. For instance, Rule 3.3 requires an attorney to act with candor toward the tribunal and avoid knowingly making false statements, failing to disclose controlling legal authority, and knowingly offering false evidence.¹³ Similarly, Rules 4.1 through 4.4 require truthful communication between parties and opposing counsel and acting appropriately when communicating or dealing with unrepresented or third parties.¹⁴ In addition, attorneys who are supervisory lawyers or partners within a law firm are held to specific standards of conduct under the Model Rules.¹⁵ Overall, these rules touch on civility and govern attorneys’ ethical responsibilities in their legal practice.

Zealous advocacy versus acting without civility. In the legal profession, the Model Rules of Professional Conduct and any adopted rules or guidelines of civility contain the standards of conduct that attorneys are expected to follow. Because these rules and guidelines are in place, attorneys often violate these standards when trying to act as zealous advocates for their clients. That being said, one common question that arises is this: “How can an attorney act with zealous advocacy for his client while also acting with civility?”

The Model Rules specifically endorse zealous advocacy. In particular, the comments in Rule 1.2 state that an attorney

should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to a lawyer, and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.¹⁶

Zealous advocacy is not often a problem for lawyers. As legal advocates, attorneys are inclined to argue for their clients and support these arguments with valid and persuasive legal theories.

However, when advocating on another’s behalf, lawyers easily can get caught up in the arguments and zealously try to advocate that their particular point of view is the correct and more reasonable viewpoint. This is where it can become tricky: it is challenging to act as a strong advocate while also acting with civility. The Model Rules of Professional Conduct address this problem, although without specifically using the term civility:

A lawyer is not bound, however, to press for every advantage that might be realized for a client. . . . The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.¹⁷

Although these rules are informative, the question that remains is this: “What are the limits of zealous advocacy?” In other words, what are the indications that counsel has gone too far in challenging a court’s ruling or an opponent’s position?

The Model Rules, as mentioned, offer no specific definition of or standards for civility within the legal profession, but they do offer some guidance on the line between zealous advocacy and failing to act with civility. For example, Model Rule 3.4 states that an attorney should act with fairness and courtesy to opposing parties and counsel by not unlawfully obstructing access to evidence, not falsifying evidence, not knowingly disobeying obligations under the rules of the court, and not making frivolous discovery requests.¹⁸ This rule promotes acting with civility toward opposing parties and counsel in the context of trial procedures, but the concept of civility also is applicable in all other practices of law, including negotiating corporate transactions and mediating settlement agreements prior to trial.

Clearly, there is no single definitive answer to the question of the line between zealous advocacy and incivility. It will serve lawyers well to remember that zealous advocacy does not require incivility. Attorneys always should consider how they would like to be treated and perceived. Clients, judges, and opponents will notice the difference between true zealous advocacy that is tempered and reasonable and attorneys who are difficult, rude, inconsiderate, overly critical, condescending, or standoffish. Attorneys who are perceived as kind, bright, considerate, and reasonable while being zealous advocates will reap the benefits of such conduct with their reputation in the legal community and at the courthouse.

Consequences for Acting without Civility

Acting with civility as an attorney is an important and essential part of the job. In fact, in multiple states, judges are inclined to give various sanctions to attorneys who clearly act without civility or professionalism. These sanctions are meant to deter this type of behavior within the profession.

Misconduct under the Model Rules. Although civility is not mentioned explicitly in the Model Rules of Professional Conduct, Model Rule 8.4 outlines what constitutes professional misconduct.¹⁹ Actions that constitute misconduct include violating the Model Rules, committing a criminal act, engaging in conduct that counts as discrimination or harassment, engaging in dishonesty or deceit, and engaging in conduct that is prejudicial to administrative justice.²⁰ Additionally, it is considered professional misconduct for lawyers to state or imply that they have the “ability to improperly influence a government agency or official to achieve results that violate the [Model Rules]” and for lawyers to help a judge in conduct that breaches judicial conduct rules.²¹ Although these are the listed actions that constitute misconduct, judges and state bars may deem it necessary to give sanctions or take disciplinary measures for actions not specifically listed within this rule or any of the Model Rules.

Examples of sanctions. Courts recognize the importance of practicing civility within the legal profession, and courts in every jurisdiction have the power to impose sanctions or disciplinary measures to deter inappropriate conduct and incivility within the legal profession. A few recent examples of sanctions granted for incivility vary from purely monetary sanctions to suspension from the practice of law.

Monetary sanctions have been invoked from coast to coast. One case involved a magistrate judge in California who imposed a monetary sanction against an attorney for spilling coffee in the direction of opposing counsel.²² In that case, counsel for both sides were aggressively arguing in a deposition and insulting each other. These actions were relayed to the magistrate judge presiding over the case, who imposed a $250 sanction for damages caused during the deposition. A monetary sanction also was imposed in a New York case: a magistrate judge ordered a sanction that covered deposition fees when an attorney frivolously made 600 objections in one deposition.²³ There, the judge recognized that the plethora of objections during this deposition was an unnecessary waste of time and resources for all parties involved. And in Illinois, a U.S. district judge imposed sanctions that included not only payments but also mandatory anger-management training when an attorney made false accusations and carried out an unhinged attack on an expert witness.²⁴

Beyond monetary sanctions, there is a more severe sanction that judges could impose on attorneys for acting with incivility: suspension. For example, in one recent instance, the New York Appellate Division, First Department, panel issued a four-month suspension from the New York Bar and one year of mandatory counseling for a prominent real estate attorney who acted with “inappropriate litigation behavior” on multiple occasions.²⁵ In Florida, the supreme court ordered a two-year suspension for an attorney’s rude and antagonistic behavior throughout a civil case.²⁶ Although some argued that this was a severe punishment, the Florida Supreme Court noted that the attorney committed multiple violations of the state’s rules of professional conduct and acted unprofessionally and inappropriately on several occasions. In another case, the Supreme Court of South Carolina imposed a 90-day suspension and required the violating attorney to complete a legal ethics and professionalism program due to his uncivil and unprofessional behavior.²⁷ In this instance, after multiple warnings about incivility, the Supreme Court of South Carolina felt that the attorney needed to be reprimanded for his uncivil actions.

These are just some of the multiple examples of judges and state bars acting to prevent incivility within the profession. These sanctions are created to prevent inappropriate and unprofessional behavior among lawyers. With the potential for sanctions in mind, it is important to act strategically with civility and professionalism when serving as an advocate and counselor. Attorneys need to think about the consequences of their actions when representing themselves, their law firms, and their clients.

Sanction review. The New York Supreme Court, Appellate Division, often reviews decisions made by the referee of a Sanction Hearing to determine whether the sanctions or disciplinary measures administered were appropriate under the circumstances. The Supreme Court of New York has held that

[o]n a motion to affirm a referee’s report and recommendation, this Court must review the Referee’s report and determine whether the Referee properly found, “by a fair preponderance of the evidence, each essential element of the charge[s].”²⁸

There are numerous examples of the Supreme Court of New York analyzing the decisions made by the Attorney Grievance Committee and referees of the ensuing Sanction Hearings in order to ensure that the proper sanction is given for misconduct.²⁹

For example, in In re Zappin, the court affirmed the referee’s order to disbar an attorney who continuously violated multiple rules of professional conduct and performed egregious acts of misconduct over a four-year period. Some of these actions included

his repeated acts of domestic violence toward his wife; his false testimony at the custody trial; his introduction of falsified evidence in the form of altered text messages; his presentation of misleading testimony through his expert witnesses; his flouting the directives of three judges; his setting up of a fake website about the attorney for the child in the custody action and posting derogatory messages about her on it. . . .³⁰

The court in this case believed that it was appropriate to order the attorney to be disbarred according to the guidelines and disciplinary precedent set in the jurisdiction.

In In re Giorgini, the court reevaluated the public censure sanction and determined that the attorney’s sanction should be a three-month suspension instead.³¹ In this case, multiple counts were evaluated by the court, the Attorney Grievance Committee, and the referee for the Sanction Hearing.³² The court ultimately concluded that a more severe sanction was necessary due to the attorney’s specific misconduct.³³

However, courts also understand that the severity of disciplinary sanctions must be appropriate and reasonable for the identified misconduct. In In re Steinberg, the panel of judges denied the suggested two-year suspension for an attorney in conformity with precedent within the jurisdiction.³⁴ In this case, the respondent, Jonathan Steinberg, was sanctioned two times prior for frivolous litigation conduct and sending an inappropriate ex parte email to a judge presiding over one of his cases.³⁵ Although he was found guilty of violating multiple rules of professional conduct, the court, relying on previous cases, determined that the proposed sanction was too severe under the circumstances.³⁶

Furthermore, regardless of sanctions imposed on a defendant elsewhere, the Supreme Court of New York has been inclined to impose the sanctions that its judges believe are appropriate in specific circumstances. For instance, in In re Foo, the court held that a public censure was appropriate for an attorney who was sanctioned by British Columbia for misconduct.³⁷ The court held that the actions performed by the attorney in British Columbia did not constitute misconduct that required more severe sanctions than a public censure in the New York jurisdiction.³⁸

These cases exemplify the analysis that courts use to administer the most appropriate sanctions or disciplinary actions for practicing attorneys. It appears that the goal for courts in this jurisdiction is to deter inappropriate behavior without imposing sanctions that would be too severe for the misconduct performed.

Conclusion

A lawyer’s professional conduct goes hand in hand with that lawyer’s reputation for excelling in practice. In today’s world, “one uncivil outburst may haunt an attorney for years; and reputations may be built and destroyed quickly.”³⁹ Clients and others notice a lawyer’s communication style and respect for the client, other parties and lawyers, and the court—and any person who has contact with a lawyer can comment on that lawyer’s performance and professionalism through social media forums or on websites that specifically rate and rank attorneys. Research shows that lawyers who exhibit civility and professionalism get higher ratings and are viewed as more effective lawyers.⁴⁰ Thus, incivility, in all likelihood, will have an adverse effect on a lawyer’s reputation and, ultimately, that lawyer’s livelihood. Accordingly, all lawyers should refocus some of their efforts on increased civility in the profession.

Lawyers should think about the meaning of civility and practice the old adage of treating others how they would want to be treated. Today’s world facilitates greater client influence and requires increased transparency from lawyers. Thus, civility and demeanor are more important than ever in building relationships, credibility in legal practice and the courtroom, reputations, and job satisfaction—and, of course, in avoiding disciplinary measures. Civility and professionalism are required in the legal profession, but lawyers also should embrace such behavior because it is the right thing to do and can help to reignite not only the quality of service and justice that should be expected but also the respect and reputation that the rule of law and the legal profession deserve.

Notes

1. Civility, Merriam-Webster.com, www.merriam-webster.com/dictionary/civility (last visited Apr. 4, 2019).

2. Civility, Oxford Dictionary, https://en.oxforddictionaries.com/definition/civility (last visited Apr. 4, 2019).

3. Incorporating Civility into Your Law Practice, FindLaw, https://practice.findlaw.com/practice-guide/incorporating-civility-into-your-law-practice.html (last visited Apr. 17, 2019).

4. Id.; see also Professionalism Codes, American Bar Association (last updated Mar. 2017) (listing specific civility standards by state), www.americanbar.org/groups/professional_responsibility/resources/professionalism/professionalism_codes.

5. State Bar of Cal., Civility Toolbox (2009), www.calbar.ca.gov/Portals/0/documents/ethics/Civility/Atty-Civility-Guide-Revised_Sept-2014.pdf (last visited Apr. 17, 2019).

6. Voluntary Standards for Civility, D.C. Bar, www.dcbar.org/bar-resources/legal-ethics/voluntary-standards-for-civility (last visited Apr. 17, 2019).

7. N.Y. State Unified Court Sys., Rules of Professional Conduct and New York State Standards of Civility (May 1, 2013), www.nysba.org/WorkArea/DownloadAsset.aspx?id=55797 (last visited Apr. 17, 2019).

8. Donald E. Campbell, Raise Your Right Hand and Swear to Be Civil: Defining Civility as an Obligation of Professional Responsibility, 47 Gonz. L. Rev. 99, 109 (Nov. 2, 2011).

9. Jayne R. Reardon, Civility as the Core of Professionalism, American Bar Association (Sept. 19, 2018), www.americanbar.org/groups/business_law/publications/blt/2014/09/02_reardon.

10. Id.

11. Id.

12. Id.

13. Model Rules of Prof’l Conduct r. 3.3 (Am. Bar Ass’n 2016).

14. Id. r. 4.1–4.4.

15. Id. r. 5.1.

16. Id. r. 1.2 cmt. 1.

17. Id. r. 1.3 cmt. 1.

18. Id. r. 3.4.

19. Id. r. 8.4.

20. Id.

21. Id.

22. Joe Mullin, Judge Sanctions Lawyer for Splashing Opposing Counsel with Iced Coffee, ARS Technica (Jan. 30, 2017), https://arstechnica.com/tech-policy/2017/01/tech-startups-lawyer-sanctioned-for-throwing-coffee-during-deposition.

23. Debra Cassens Weiss, Judge Sanctions New York City After Lawyer Makes 600 Objections in One Deposition, A.B.A. J. (May 17, 2017), www.abajournal.com/news/article/judge_sanctions_city_for_lawyers_plethora_of_deposition_objections.

24. Debra Cassens Weiss, Lawyer Is Sanctioned $50K for Alleged ‘Inappropriate Diatribes’ and ‘Unhinged Attack’ on Expert, A.B.A. J. (Mar. 29, 2018), www.abajournal.com/news/article/lawyer_is_sanctioned_50k_for_alleged_inappropriate_diatribes_and_unhinged_a.

25. Jack Newsham, First Department Suspends Adam Leitman Bailey for 4 Months, N.Y. L.J. (Apr. 2, 2019), www.law.com/newyorklawjournal/2019/04/02/first-department-suspends-adam-leitman-bailey-for-four-months.

26. Samson Habte, Lawyer’s ‘Appalling’ Incivility Warrants Tougher Sanction Than What Bar Sought, BNA (Nov. 20, 2013) (subscription-only access available on the Bloomberg Law website).

27. G.M. Filisko, You’re Out of Order! Dealing with the Costs of Incivility in the Legal Profession, A.B.A. J. (Jan. 1, 2013), www.abajournal.com/magazine/article/youre_out_of_order_dealing_with_the_costs_of_incivility_in_the_legal.

28. In re Zappin, 160 A.D.3d 1, 7, 73 N.Y.S.3d 182, 186 (App. Div. 2018) (quoting N.Y. Comp. Codes R. & Regs. tit. 22, § 1240.8(b)(1)).

29. See, e.g., id. at 7, 73 N.Y.S.3d at 187; In re Foo, 159 A.D.3d 1218, 1219, 72 N.Y.S.3d 249, 250 (App. Div. 2018); In re Steinberg, 167 A.D.3d 206, 211 (App. Div. 2018).

30. Zappin, 160 A.D.3d at 8, 73 N.Y.S.3d at 187.

31. In re Giorgini, 166 A.D.3d 43, 47, 84 N.Y.S.3d 153, 156 (App. Div. 2018).

32. Id. at 155–56.

33. Id.

34. Steinberg, 167 A.D.3d at 211.

35. Id. at 207–08.

36. Id. at 210–11.

37. In re Foo, 159 A.D.3d 1218, 1219, 72 N.Y.S.3d 249, 250 (App. Div. 2018).

38. Id.

39. See Reardon, supra note 9.

40. Id.

source

The Attorney’s Sworn Oath

“Civility” Oath Rule Adopted by Supreme Court

Lawyers’ Obligation of Candor to Opposing Parties and Third Parties

Code of Conduct for United States Judges

Suing for Misconduct – Know More of Your Rights

Learn More about property and your rights below:

Property Rights and the Constitution – The General Nature of Property Rights

Landlord’s Right to Entry in California

Rule 1.1 – Competence (DA REPRESENTS THE STATE)

Rule 1.2 – Assisting in a Crime

Rule 3.1 – Meritorious Claims & Contentions

Rule 3.4 – Fairness to Opposing Party and Council

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

Model Rule 4.4 – Respect for the Rights of Others

Model Rule 5.2 Responsibilities of a Subordinate Lawyer

Model Rule 8.1 Bar Admission & Disciplinary Matters

Model Rule 8.2 – Judicial & Legal Officials

Model Rule 8.3 – Reporting Professional Misconduct

Model Rule 8.4 pt.1 – Lawyer Misconduct

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

Model Rule 8.4 pt.2 – Discrimination & Harassment

Attorney Ethics Rules – FOX 17 Know the Law

Attorney Fees as Damages for Malicious Prosecution Claim – Kentucky Supreme Court Holds

The Truth News — Fri, 08 Sep 2023 09:07:02 +0000

Attorney Fees as Damages for Malicious Prosecution Claim – Kentucky Supreme Court Holds

Fees as Damages: Attorneys Asserting Claim For A Client In Order To Collect Some Of Their Attorney’s Fees Does Not Constitute Improper Purpose To Sustain A Malicious Prosecution Claim

Kentucky Supreme Court So Holds In July 2020 Published Opinion.

Malicious prosecution, in California and most jurisdictions, has an improper purpose element with respect to filing or prosecuting a claim—with Kentucky labeling malicious prosecution as a wrongful use of civil proceedings claim. The Kentucky Supreme Court, in Seiller Waterman, LLC, et al. v. RLB Properties, Ltd., Nos. 2018-SC-0538-DG and 2018-SC-0558-DG (Ky. July 9, 2020), petn. for rhg. denied, September 24, 2020, faced the issue of whether improper purpose for purposes of a malicious prosecution claim could be based on allegations that a client’s attorneys filed claims against an adversary litigant in order to recoup its professional fees (“extort fees,” as colorfully used in the pleadings). It concluded that this theory could not support a malicious prosecution claim. “. . . an attorney seeking to collect an attorney fee in the usual course of representing a client is not acting for an improper purpose, a necessary element of the wrongful use of civil proceedings claim. Even if the attorney acts without probable cause to believe the client’s claim will succeed, the improper purpose which may subject an attorney to liability to a nonclient must be something other than simply earning a fee.” (Slip Op. at p. 15.) For readers wanting to review this opinion, it is available over the Internet at justia.com. source

RLB PROPERTIES LTD v. SEILLER WATERMAN LLC (2018)

Court of Appeals of Kentucky.

RLB PROPERTIES, LTD., Appellant v. SEILLER WATERMAN, LLC; Pamela M. Greenwell; Gordon C. Rose; and Paul J. Hershberg, Appellees

NO. 2017-CA-000024-MR

Decided: June 01, 2018

BEFORE: CLAYTON, CHIEF JUDGE; SMALLWOOD AND TAYLOR, JUDGES. BRIEFS FOR APPELLANT: Joshua D. Farley, Louisville, Kentucky. BRIEF FOR APPELLEES: James P. Grohmann, Louisville, Kentucky.OPINION

RLB Properties, LTD appeals from an Opinion and Order of the Jefferson Circuit Court which dismissed RLB’s claims against Seiller Waterman, LLC, and Pamela Greenwell, Gordon Rose, and Paul Hershberg, lawyers employed by Seiller Waterman, LLC. We find that the trial court erred in dismissing the claims surrounding the filing of a mechanic’s lien and civil conspiracy, but affirm all other aspects of the trial court’s judgment.

The Jefferson Circuit Court’s recitation of facts set forth in the order dismissing is thorough and will be adopted by this Court.

This case has its genesis in prior litigation between Plaintiff, RLB Properties, LTD., (hereinafter, “RLB”), owner of the Marmaduke Building on the 4th Street Live strip of Louisville, Jefferson County, Kentucky, and Skyshield Roof & Restoration, L.L.C. (hereinafter, “Skyshield”), a company in the business of roofing and restoration. In January 2014, RLB and its tenant, Sol Azteca’s Mexican Restaurant (hereinafter, “Sol Azteca’s”) contracted with Skyshield for the performance of repairs on Sol Azteca’s restaurant premises. Disputes between the parties soon emerged, and Sol Azteca’s sued Skyshield for failure to perform the agreed upon repairs.

Skyshield and its principal, Jacob Blanton 1, then retained Seiller Waterman to represent it[sic] in the litigation. On or about August 5, 2014, Skyshield filed a mechanic’s lien on the Marmaduke Building, alleging it was owed $1,500,000.00 for labor rendered and materials furnished under its contract with RLB and Sol Azteca’s. On or about August 12, 2014, Skyshield filed a Third-Party Complaint against RLB, alleging failure to pay for labor and materials furnished. RLB promptly counterclaimed against Skyshield for breach of contract. On January 29, 2015, RLB, through counsel, sent Seiller Waterman a letter demanding Skyshield release its mechanic’s lien, which it alleged was satisfied and facially invalid. Neither Skyshield nor Seiller Waterman responded to this letter.

During this time, Seiller Waterman employed Greenwell, Hershberg, and Rose as attorneys. Greenwell and Hershberg filed the claim on Skyshield’s behalf. Greenwell also filed Skyshield’s Certificate of Authority with the Kentucky Secretary of State and listed herself as its service of process agent. Rose served as the scrivener for the mechanic’s lien lodged against the Marmaduke Building.

On March 16, 2015, Jefferson Circuit Court, Division Four, the Hon. Charles Cunningham presiding, granted Defendants’ motion to withdraw as counsel for Skyshield, based upon the cited irreconcilable differences and allowed Skyshield 30 days to obtain new counsel. Skyshield never obtained substitute counsel. On May 29, 2015, the Court entered RLB’s tendered order dissolving the mechanic’s lien. On July 31, 2015, the Court entered default judgment against Skyshield and awarded RLB $924,767.39 in compensatory damages, $2,000,000.00 in punitive damages, $68,257.29 in attorney fees, and $63,400.00 in statutory penalties for failure to release a mechanic’s lien in a timely manner.

On May 31, 2016, RLB filed suit against Defendants for negligence, negligent supervision, wrongful use of civil proceedings (hereinafter, “WUCP”), abuse of process, slander of title, filing an illegal lien, and civil conspiracy. The basis, essentially, for all RLB’s claims was its assertion that Defendants knew or should have known that Skyshield was not owed any payment from RLB, and that the mechanic’s lien and counterclaim they prepared were “completely devoid” of any factual basis or legal support. On June 27, 2016, Defendants moved to dismiss. Defendants argued the claims for negligence and WUCP failed to state a claim upon which relief could be granted. Regarding RLB’s other claims, Defendants argued they were barred by the applicable statute of limitations.

Appellees moved for a judgment on the pleadings and to dismiss the cause of action pursuant to Kentucky Rule of Civil Procedure (CR) 12.03.

[A] judgment on the pleadings can be granted only if, on the admitted material facts, the movant is clearly entitled to a judgment. Relief must be denied if there is a material issue of fact ․ When a party moves for judgment on the pleadings, he admits for the purposes of his motion not only the truth of all of his adversary’s well-pleaded allegations of fact and fair inferences therefrom, but also the untruth of all of his own allegations which have been denied by his adversary. The question thus presented is one of law and requires an examination of the pleadings.

Archer v. Citizens Fidelity Bank & Trust Co., 365 S.W.2d 727, 729 (Ky. 1962) (citations omitted). The trial court agreed with Appellees’ arguments and granted the motion to dismiss. This appeal followed.

The purpose of [CR 12.03] is to expedite the termination of a controversy where the ultimate and controlling facts are not in dispute. It is designed to provide a method of disposing of cases where the allegations of the pleadings are admitted and only a question of law is to be decided․ The basis of the motion is to test the legal sufficiency of a claim or defense in view of all the adverse pleadings.

City of Pioneer Village v. Bullitt Cty. ex rel. Bullitt Fiscal Court, 104 S.W.3d 757, 759 (Ky. 2003). Our standard of review for appeals concerning CR 12.03 is de novo. Scott v. Forcht Bank, NA, 521 S.W.3d 591, 594 (Ky. App. 2017).

RLB’s first argument on appeal is that the trial court erred in dismissing its negligence claim against Appellees. The trial court dismissed the negligence claims because RLB was not a client of Appellees nor was it a third-party beneficiary to Appellees’ legal work. We agree with the trial court.

An attorney can only be liable for a claim of negligence brought by a client or a “person intended to be benefited by his performance irrespective of any lack of privity[.]” Baker v. Coombs, 219 S.W.3d 204, 208-09 (Ky. App. 2007) (citation and internal quotation marks omitted). Here, RLB was neither a client nor a third-party beneficiary of Appellees’ legal work. As the relationship between RLB and Appellees was adversarial, RLB could have no expectation to benefit from Appellees’ services. The trial court correctly dismissed this claim.

RLB’s second argument on appeal is that the trial court erred in dismissing its WUCP claim.² The elements of a WUCP claim are: “(1) lack of probable cause, (2) improper purpose, and (3) what type of injury is compensable. This cause of action requires that in the prior lawsuit the tortfeasor acted ‘without probable cause, and primarily for a purpose other than that of securing the proper adjudication of the [prior] claim.’ ” Prewitt v. Sexton, 777 S.W.2d 891, 894 (Ky. 1989) (citation omitted). The trial court dismissed Appellant’s claim because it believed RLB failed to meet the improper purpose element. We agree.

RLB argues that Appellees’ improper purpose in filing the third-party complaint against it was to enrich themselves in the form of attorney fees and to enrich their clients. Appellees argue that their purpose in filing the claim was not improper because all attorneys seek payment for their services and damages for their clients.

An improper purpose can be defined as “bringing the prior lawsuit primarily for a purpose other than that of securing the proper adjudication of the claim.” Id. (citation and internal quotation marks omitted). As the trial court correctly pointed out, there is no Kentucky case law indicating whether instigating judicial proceedings solely to earn legal fees or damages qualifies as an improper purpose. The trial court relied on secondary sources and foreign authority to support its dismissal of the WUCP claim. The court cited to commentary in the Restatement (Third) of the Law Governing Lawyers. We believe this citation is beneficial to our analysis.

[R]egardless of the client’s purpose, even if a lawyer “has no probable cause and is convinced that his client’s claim is unfounded, he is still not liable [for wrongful use of civil proceedings] if he acts primarily for the purpose of aiding his client in obtaining a proper adjudication of his claim”. A desire to earn a contingent or other fee does not constitute an improper motive. But if a lawyer acts without probable cause “and for an improper purpose, as, for example, to put pressure upon the person proceeded against in order to compel payment of another claim of his own or solely to harass the person proceeded against by bringing a claim known to be invalid, he is subject to the same liability as any other person”. ․ The lawyer’s motive is assessed separately from that of the client. However, the client’s motives, if known to a lawyer, may constitute evidence bearing on the lawyer’s motives.

Restatement (Third) of the Law Governing Lawyers § 57 cmt. d (2000) (citations omitted). The trial court found that RLB did not plead facts which would indicate, either directly or inferentially, that Appellees’ participation in the underlying litigation was motivated by malice toward RLB.

Keeping in mind that Appellees’ motivation for participating in the Skyshield action must be assessed separately from Skyshield itself, we agree with the trial court that RLB did not assert facts in its complaint that would allow the WUCP claim to move forward. Appellees acted on behalf of their client and not for any reason that would benefit them outside the normal course of the judicial proceedings.

RLB’s third argument on appeal is that the trial court erred in dismissing its abuse of process claim. RLB alleges Appellees committed the act of abuse of process when they filed the third-party complaint on behalf of Skyshield. Kentucky Supreme Court has stated that

an action for abuse of process is “the irregular or wrongful employment of a judicial proceeding[,]” and has two essential elements: 1) an ulterior purpose, and 2) a willful act in the use of the process not proper in the regular conduct of the proceeding. We emphasized, again citing W. Prosser, Handbook of the Law of Torts, § 121 (4th ed. 1971), that some definite act or threat not authorized by the process, or aimed at an objective which is not a legitimate use of the process was required. The act or threat usually manifested by some “form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property on the payment of money” using the process as a threat or a club. The process is used as a form of extortion, and “it is what is done in the course of negotiation, rather than the issuance or any formal use of the process itself, which constitutes the tort.” Notably, our analysis ․ incorporates the concept that “there is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion even though with bad intentions.”

Sprint Commc’ns Co., L.P. v. Leggett, 307 S.W.3d 109, 114 (Ky. 2010) (citations omitted).

The trial court dismissed this cause of action because it believed it was barred by the statute of limitations. “[A]n action for abuse of process will not lie unless there has been an injury to the person or his property.” Raine v. Drasin, 621 S.W.2d 895, 902 (Ky. 1981) (abrogated on other grounds by Martin v. O’Daniel, 507 S.W.3d 1 (Ky. 2016) ). In Kentucky, a personal injury claim must be brought within one year after the cause of action accrues unless otherwise specifically provided by statute. Kentucky Revised Statute (KRS) 413.140(1)(a). Here, the trial court held that the statute of limitations for abuse of process began to run when the third-party complaint was filed by Appellees on August 12, 2014. The abuse of process claim was not filed until May 31, 2016, well outside the one-year statute of limitations.

RLB argues that the statute of limitations did not begin to run until the trial court entered a judgment against Skyshield. RLB believes it is impossible to know an opposing party’s ulterior purpose until after the cause of action concludes. This is a different argument than alleged in RLB’s complaint. In its complaint, RLB did not allege any continuing acts of abuse of process during the pendency of the Skyshield case or after its conclusion, only the filing of the third-party complaint. However, because RLB raised the issue in its response to Appellees’ motion to dismiss, we will address it.

We agree with the trial court that the abuse of process cause of action accrued when the complaint was filed in August 2014. In making its decision, the trial court relied on the unpublished case of DeMoisey v. Ostermiller, No. 2014-CA-001827-MR, 2016 WL 2609321, (Ky. App. May 6, 2016), and we, too, find the reasons in that case persuasive.

In DeMoisey, another panel of this Court, as a matter of first impression, determined when the statute of limitations for abuse of process claims begins to run. Therein, the Court held that “while the determination in a malicious prosecution centers on the legal justification for the action, which cannot be resolved until the termination of the action, abuse of process centers on the motivation behind the action, which is capable of ascertaining before conclusion of the action.” Id. at 14. Further, the Court stated that “the rule is virtually universal that the statute of limitations for an abuse of process claim commences ‘to run[ ] from the termination of the acts which constitute the abuse complained of, and not from the completion of the action in which the process issued.’ ” Id. (citation omitted).

Unlike malicious prosecution claims, an abuse of process claim does not require a successful outcome in the original action. “Rather, the focus of [an abuse of process] claim is whether there was a willful act in the use of the process, which was not proper in the regular conduct of the proceeding. Thus, the claim rises or falls on the conduct occurring ‘at the time the [underlying] action was filed.’ ” Id. (footnote and citation omitted). As we agree with the trial court, and the reasoning in DeMoisey, we find that RLB’s claim for abuse of process is barred by the one-year statute of limitations.

RLB’s fourth argument on appeal is that the trial court erred in dismissing its slander of title claim. Slander of title “is an action for injury to real property rights resulting from disparagement of title to real estate.” Ballard v. 1400 Willow Council of Co-Owners, Inc., 430 S.W.3d 229, 236 (Ky. 2013). In its complaint, RLB claimed Appellees slandered the title of the Marmaduke Building when they filed the false and unjustified mechanic’s lien on August 5, 2014. The trial court dismissed this claim finding that the statute of limitations had run.

Generally, the statute of limitations for slander of title is five years. KRS 413.120(6); Ballard, supra. However, the trial court herein relied on KRS 413.245 which states in relevant part:

Notwithstanding any other prescribed limitation of actions which might otherwise appear applicable, except those provided in KRS 413.140, a civil action, whether brought in tort or contract, arising out of any act or omission in rendering, or failing to render, professional services for others shall be brought within one (1) year from the date of the occurrence or from the date when the cause of action was, or reasonably should have been, discovered by the party injured.

The trial court held that because the slander of title claim arose out of the services of a lawyer, then this specific one-year statute of limitations would apply instead of the more general five-year period.

The professional services of lawyers are governed by the one-year statute of limitations set forth in KRS 413.245. Abel v. Austin, 411 S.W.3d 728, 737-38 (Ky. 2013). The title of KRS 413.245 is “Actions for professional services malpractice” and the Kentucky Supreme Court has held that KRS 413.245 “is the exclusive statute of limitations governing claims of attorney malpractice.” Abel, at 738 (emphasis in original).

“[I]n construing a statute, our goal is to give effect to the intent of the General Assembly. ‘To determine legislative intent, we look first to the language of the statute, giving the words their plain and ordinary meaning.’ ” Id. at 738 (citations omitted). In addition, “[t]he applicable rule of statutory construction where there is both a specific statute and a general statute seemingly applicable to the same subject is that the specific statute controls.” Id. (citation and internal quotation marks omitted).

While we agree with Appellees and the trial court that KRS 413.245 is a more specific statute of limitations than KRS 413.120 and would seemingly apply to this case, we find its applicability questionable under the facts at hand. KRS 413.245 is specifically intended for professional service malpractice, in tort or contract. Here, RLB has alleged that the filing of the mechanic’s lien was not based in fact, was done maliciously and in bad faith, and could have even been done to the detriment of a third party. To escape liability under the guise of attorney professional services would be unconscionable if the obligations surrounding the claims are true. Based on the allegations asserted, the slander of title claim is totally outside the scope of negligent performance of professional services, would not constitute negligent malpractice and would not fall under the one-year professional malpractice statute of limitations.

Since this case was dismissed on the pleadings, no discovery had taken place and we must take RLB’s allegations as true. We find that RLB should be allowed to perform some discovery around the slander of title claim. If RLB cannot provide some evidence to suggest the mechanic’s lien was filed for some malicious purpose, then the one-year statute of limitations would apply and the claim could be dismissed pursuant to a motion for summary judgment. We therefore reverse and remand for additional proceedings as to this issue.

RLB’s fifth argument on appeal is that the trial court erred in dismissing its claims based on KRS 434.155 and KRS 446.070. KRS 434.155 makes it illegal to file a lien when the filer knows the lien is groundless or false. KRS 446.070 states that “[a] person injured by the violation of any statute may recover from the offender such damages as he sustained by reason of the violation, although a penalty or forfeiture is imposed for such violation.” RLB asserts that when these two statutes are read together, it allows RLB to sue for damages if Appellees filed an unjustified lien.

RLB’s claim brought pursuant to KRS 446.070 would normally be subject to a five-year statute of limitations. KRS 413.120(2). The trial court, however, subjected this cause of action to the one-year statute of limitations found in KRS 413.245. For the reasons set forth above, we agree that the one-year statute of limitations might apply in this case, but that additional discovery must be performed to determine if the lien was filed maliciously, thereby not falling under the one-year statute of limitations.

RLB’s sixth and final argument on appeal is that the trial court erred in dismissing its civil conspiracy claim. One is subject to liability for civil conspiracy when

he (a) does a tortious act in concert with the other or pursuant to a common design with him, or (b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or (c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct separately considered, constitutes a breach of duty to the third person.

James v. Wilson, 95 S.W.3d 875, 897 (Ky. App. 2002) (footnote omitted). If there is no tortious act, then there can be no civil conspiracy. Id. at 897-98.

Because we are reversing for additional discovery due to the mechanic’s lien issue, this civil conspiracy claim could have merit; therefore, we reverse and remand as to this issue as well.

Based on the foregoing, we hold that the trial court erred in dismissing the claims revolving around the mechanic’s lien and civil conspiracy, but correctly dismissed RLB’s other claims. We therefore affirm in part, reverse in part, and remand for additional proceedings.

FOOTNOTES

1. Skyshield and Blanton shall be referred to collectively as Skyshield throughout the remainder of this Opinion and Order.

2. A WUCP claim is brought by litigants who believe they are victims of a baseless lawsuit.

SMALLWOOD, JUDGE:

TAYLOR, JUDGE, CONCURS. CLAYTON, CHIEF JUDGE, CONCURS IN RESULT ONLY.

Nevada ‘black widower’ Thomas Randolph, convicted again of murdering 6th wife, hit man

The Truth News — Wed, 30 Aug 2023 23:15:28 +0000

Nevada ‘black widower’ Thomas Randolph, convicted again of murdering 6th wife, hit man

Thomas Randolph found guilty in retrial for 2008 murders of Sharon Causse, hit man Michael Miller

After 15 years, an overturned death sentence and a retrial, a Nevada jury found Thomas Randolph guilty of orchestrating his sixth wife’s murder and shooting dead the apparent hit man he hired to kill her.

Jurors on Thursday convicted Randolph, 68, of conspiracy to commit murder and two counts of murder with use of a deadly weapon after five hours of deliberation, per court proceedings aired by Court TV.

Randolph, who uses a wheelchair and was aided by headphones for the hard-of-hearing, stared straight ahead and was emotionless when the verdict was read.Colleen Beyer, daughter of Randolph’s sixth wife, Sharon Causse, gasped and clasped her hands to her mouth when Randolph was found guilty for the second time, per the Las Vegas Review-Journal.

ALLEGED ‘BLACK WIDOWER’ ACCUSED OF MURDERING 6TH WIFE, APPARENT HIT MAN

Thomas Randolph was convicted a second time for the murders of sixth wife Sharon Causse and hired hit man Michael Miller last Thursday. He is pictured receiving his 2017 death sentence for the same crime, which was overturned.

“I’m so relieved, it’s unbelievable,” Beyer told the outlet. “It’s been 15 years, and it’s been a twisted nightmare.”

“I’m absolutely ecstatic and thrilled and relieved that he’s off the streets – that he cannot do this to another woman again,” she said teary-eyed outside the courtroom. “Because he’s a predator, he’s a serious predator.”

On May 8, 2008, Randolph dialed 911 and told operators that a masked home intruder shot Causse, per court documents. After shooting the man dead, Randolph told police, he recognized him as his friend and handyman, Michael Miller, 38.

But using phone records, prosecutors detailed Randolph’s extensive relationship with Miller in court last week and during the accused killer’s previous 2017 trial, citing hundreds of phone calls between the pair.

At both his most recent trial and 2017 murder trial, prosecutors alleged that Randolph arranged for Miller to kill his wife so that he could collect more than $300,000 in insurance money, pointing out insurance policies he took out on her life in the two years before her death.

The killing would become the subject of Dateline’s 2021 miniseries “The Widower.”

But the Nevada Supreme Court overturned Randolph’s prior conviction and death sentence in 2020, arguing that the Clark County District Court should not have allowed jurors to hear “prior bad-act evidence” involving his 1986 Utah arrest for the death of his second wife, Becky Gault, for which he was acquitted.

Colleen Beyer is pictured hugging a woman at Thomas Randolph’s 2017 trial. She told news outlets she was relieved after he was found guilty again last week and glad this “twisted nightmare” was over. (Patrick Connolly / Las Vegas Review-Journal via AP / File)

Four of Randolph’s six wives are deceased – fifth wife Leona Stapleton died of cancer, per testimony from her family in the previous trial, and fourth wife Francis Randolph died during heart surgery in 2004. Another man told jurors that Randolph had offered to pay him to kill Francis before her death on the operating table and that he had suggested that the death be staged as a burglary.

Living ex-wife Gayna Allmon testified that she believed Randolph was trying to kill her when a bullet from his gun struck the kitchen wall behind her while he was cleaning his weapon during their marriage; first wife Kathryn Thomas detailed his alleged psychologically abusive behavior.

But prosecutors were relegated to evidence that strictly dealt with the 2008 investigation into the murders of Causse and Miller.

The state pointed out inconsistencies in Randolph’s story to police, which included a video walkthrough of the house that he shared with Causse, led by Randolph and shared with jurors this month.

Thomas Randolph is pictured before his death penalty sentence was handed down in 2017. That conviction was overturned in 2020. (Patrick Connolly / Las Vegas Review-Journal via AP / File)

An inconsistently small amount of evidence was found in the hallway where the alleged shooting took place, prosecutors said, and the trajectory of the bullets that killed Miller did not match Randolph’s retelling.

Randolph “offered to do anything else but help [Causse]” while a 911 dispatcher urged him to do chest compressions on her body, prosecutors said.

But his attorney, Josh Tomsheck, argued that this characterization was unfair.

“He wanted her to have medical aid – he was the only one who did it,” he said in his closing arguments last Wednesday. “There’s that silence after you hear the clearing of the house, there’s a silence. … Tommy is outside, and he’s wondering … complaining about [how long it is taking] law enforcement [to respond].”

“They didn’t go in to help her,” Tomsheck continued. “The only person who gave her aid was [Randolph] – he tried in vain. You can see there is nothing that could be done.”

Defense attorneys argued that police ignored evidence that Miller acted alone and zeroed in on Randolph unfairly based on his previous arrest in Utah. The crime scene was not properly preserved, they argued, and Randolph should not be expected to accurately retell every detail of the traumatic confrontation in repeated police interviews.

But Chief Deputy District Attorney Christopher Hamner told jurors that Randolph was “not a victim” in this case but rather “a villain.”

“It’s really, really hard to plan a perfect murder – now that you have the evidence, you can see that [Randolph] failed – because his story doesn’t add up,” Hamner said. “It doesn’t add up with what you physically see at the scene … when you see the insurance policies … it doesn’t add up in the manner in which he discusses his wife [or] … when you start thinking about his relationship with Michael Miller.”

Randolph’s version of events, Hamner said, is “not proved by other evidence” but instead “contradicted” and even “repelled” by evidence.

“I know we did everything that we could,” Tomsheck told Court TV, adding that Randolph’s defense “did everything [they] could” although they were “hoping for a different verdict.”

His office did not respond for comment at press time.

District Judge Tierra Jones is scheduled to sentence Randolph during a hearing on Oct. 12. source

NV v. Thomas Randolph: ‘The Widower’ Murder Trial

Nevada Supreme Court ruled that prior-bad-act evidence used in the trial may have tainted the jury’s objectivity.

LAS VEGAS (Court TV) — A Nevada man has been convicted for a second time for the 2008 shooting deaths of his wife and the hitman he allegedly conspired with to kill her.

After nearly five hours of deliberations, jurors convicted Thomas Randolph of conspiracy to commit murder and two counts of murder with use of a deadly weapon.

Thomas Randolph was first sentenced to death in 2017 for the murders of his sixth wife, Sharon Randolph, and hitman Michael Miller. His conviction was overturned in 2021, after the state’s highest court found the district court abused its discretion in admitting prior-bad-act evidence at trial.

In this Wednesday, July 5, 2017 photo, Thomas Randolph walks into the courtroom before he was sentenced to death by jurors during the penalty phase of his murder trial at the Regional Justice Center in Las Vegas. (Patrick Connolly/Las Vegas Review-Journal via AP)

Randolph’s case was the focus of the Dateline docuseries “The Widower.” The defendant was married six times, and “four of his wives died under mysterious circumstances,” reported Oxygen. Outside of his Nevada conviction, Randolph was once a suspect in the 1986 death of his second wife, Becky Gault, in Utah. He was acquitted of all charges in Gault’s death in 1988.

During his first Nevada trial, prosecutors relied heavily on evidence from the Utah trial, including testimony from the man Randolph allegedly tried to recruit to kill Gault.

According to court documents, on the evening of May 8, 2008, Randolph called 911 to report that a masked intruder shot his sixth wife and that he shot and killed the intruder. Randolph recognized the intruder as 38-year-old Michael Miller, a person he befriended a few months before and with whom prosecutors say he developed an extensive, secretive relationship.

A Clark County jury convicted Randolph of murder and conspiracy charges in June 2017 for the deaths of Michael Miller and Sharon Randolph and recommended two death sentences. After his conviction was overturned in 2021, the case was remanded for a new trial, setting the State for a do-over.

Randolph’s sentencing is scheduled for October 12, 2023.

DAILY TRIAL UPDATES

DAY 10 – 8/24/23

The jury deliberated for several hours before finding Thomas Randolph guilty on all counts.
- WATCH: Jury Reaches Verdict in Murder Trial of ‘Widower’ Thomas Randolph

DAY 9 – 8/23/23

The state and defense delivered closing arguments.
- WATCH: ‘The Widower’ Murder Trial: Defense, State Deliver Closing Arguments
The jury deliberated for a short time before going home for the evening.

DAY 8 – 8/22/23

The state rested.
The defense began their case.

DAY 7 – 8/21/23

The lead detective on the case took the stand.
- WATCH: ‘The Widower’ Murder Trial: Day 7
The jury heard another interview Randolph did with detectives on June 3, 2008. His demeanor appeared casual.
Part of Randolph’s June 3, 2008 police interview was not redacted and the jurors heard that Randolph was previously married to Becky. After the jurors left, the attorneys discussed where to pick back up in the video after updating their redactions. The attorneys will keep what was already played, but the jury will not hear the rest of the answer. A new exhibit with the updated redactions will be made before the exhibits go back with the jury.
- WATCH: Randolph Jury Has Lighthearted Moment About ‘Waltzing’ At Crime Scenes

DAY 6 – 8/18/23

The state showed autopsy photos of Sharon and Miller to the jury.
A now-retired senior crime scene analyst visited the scene about a week after the incident and noted evidence that wasn’t initially found by crime scene analysts the night of the incident.

DAY 5 – 8/17/23

The court voir dire-d the jurors about one incident regarding a security guard making a comment about, if they were on a case about a politician, vote guilty and another incident on the elevator where a person with a blazer carrying files asked if they were department 10 jurors. In both instances, jurors ignored these comments. No jurors were dismissed.
- WATCH: Judge Questions Jurors About Incident Outside ‘Widower’ Murder Trial
The jury heard from Michael Miller’s family.
Items from the crime scene were tested for blood and DNA.
WATCH: ‘The Widower’ Murder Trial: Day 5

DAY 4 – 8/16/23

The jury heard from the state’s firearms expert.
The jury learned that between December 20, 2007 – June 2, 2008, Randolph called Miller an average of 2.7 calls a day.
The jury looked at crime scene photos.
WATCH: ‘The Widower’ Murder Trial: Day 4

DAY 3 – 8/15/23

The jury witnessed Randolph do a walkthrough video with law enforcement.
At the end of Det. Mogg’s testimony, one of the juror’s asked, if at any point during Det. Mogg’s interactions with Randolph, if Randolph cried. Det. Mogg said no. The defense noted in a follow-up question that Randolph was screaming in the 911 call and Det. Mogg agreed.
The jury listened to Randolph’s 911 call.
WATCH: ‘The Widower’ Murder Trial: Day 3

DAY 2 – 8/14/23

The jury saw several photos of Sharon and Thomas Randolph during one of their weddings.
Elizabeth Lavadour, who was seeing Thomas when he was with Sharon, testified.
Det. Clifford Mogg’s initial interview with Thomas the night of May 8, 2008 played out for the jury.
WATCH: ‘The Widower’ Murder Trial: Day 2

DAY 1 – 8/11/23

The jury hears opening statements
- WATCH: ‘The Widower’ Murder Trial: Prosecution Opening Statement
- WATCH: ‘The Widower’ Murder Trial: Defense Opening Statement
Sharon Randolph’s family members and friends testified.
- WATCH: ‘This is a red flag’: Friend Warned Victim Away From Thomas Randolph
Audio played of Randolph’s voicemails left on Colleen’s home and cell phones.
WATCH: ‘The Widower’ Murder Trial: Day 1

source

Thomas Randolph found guilty again in re-trial over killing of wife, alleged hitman

LAS VEGAS (KSNV) — A jury has once again found Thomas Randolph guilty of plotting the death of his wife and the person he allegedly hired to kill her 15 years ago, after the Nevada Supreme Court overturned the original conviction and sentencing.

The jury returned a guilty verdict Thursday in the second trial for Randolph on charges of murder and conspiracy to commit murder. His sentencing is scheduled for Oct. 12.

Randolph reported back in 2008 that an intruder shot and killed his wife, and that he shot and killed the intruder.

He was arrested for both killings, with prosecutors alleging that he enlisted a friend to kill his wife so he could collect her life insurance.

Prosecutors also presented at trial that Randolph was accused of the death of his second wife in Utah in 1986, and he was convicted in 2017 and sentenced to death.

The Nevada Supreme Court reversed that conviction in 2020, however, ruling that the Clark County District Court should not have allowed “prior-bad-act evidence” to be admitted. Randolph was remanded to a new trial as a result. source

Opinion Summary

The Supreme Court reversed Defendant’s conviction of conspiring with a hitman to have his sixth wife murdered during a staged burglary and then murdering the hitman, holding that the district court abused its discretion in admitting certain prior bad act evidence.

At issue was the admission of events surrounding the death of Defendant’s second wife. On appeal, Defendant argued that the evidence was inadmissible under Nev. Rev. Stat. 48.045(2). The Supreme Court reversed, holding (1) the danger of unfair prejudice substantially outweighed any probative value of the disputed evidence, and the district court abused its discretion by allowing its admission; and (2) the error in admitting the prior bad act evidence was not harmless. The Court remanded the matter for a new trial.

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

The Truth News — Mon, 29 May 2023 12:19:16 +0000

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.”

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.

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.”

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.

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.

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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?

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].

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.

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.

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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.

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Publius v. Boyer-Vine – 1st Amendment- Posting Police Address

The Truth News — Thu, 17 Nov 2022 12:12:47 +0000

Publius v. Boyer-Vine – 1st Amendment –

Posting Police Address

Constitution Protects Publication of Politicians’ Home Address/Phone Number–Publius v. Boyer-Vine

Doe Publius (nice alias) runs the “The Real Write Winger” , a 1st Amendment News Blog Publication. He was unhappy about California’s ammunition purchase registry, which publishes “the driver’s license information, residential address and telephone number, and date of birth for anyone who purchases or transfers ammunition in California.” To protest, he made a blog post, “Tyrants to be registered with California gun owners,” that included the names, home addresses and home phone numbers of 40 legislators (the so-called “tyrants”) who supported the registry. This resulted in several legislators getting angry calls at home.

California Gov’t Code Sec. 6254.21(c) allows politicians to “opt-out” of having their home contact information published via a notice-and-takedown scheme:

No person, business, or association shall publicly post or publicly display on the Internet the home address or telephone number of any elected or appointed official if that official has made a written demand of that person, business, or association to not disclose his or her home address or telephone number.

Sec. 6254.21(e) adds that “An interactive computer service or access software provider, as defined in Section 230(f) of Title 47 of the United States Code, shall not be liable under this section unless the service or provider intends to abet or cause imminent great bodily harm that is likely to occur or threatens to cause imminent great bodily harm to an elected or appointed official.”

A state legislative counsel issued a takedown-and-staydown demand to WordPress that included the threat that “we reserve the right to file an action seeking injunctive relief, as well as associated court costs and attorney’s fees.” As quoted by the court, the letter did not attempt to address WordPress’ obvious Section 230 immunity or, for that matter, show how the (e) exception applied to WordPress, i.e., how WordPress intended “to abet or cause imminent great bodily harm that is likely to occur or threatens to cause imminent great bodily harm.” (Indeed, in a footnote, the court says California “does not suggest Publius’s speech was a threat or otherwise not protected by the First Amendment”). Nevertheless, and despite its probable legal immunity, WordPress promptly removed–without further explanation–Publius’ blog post after receiving the demand. Note that WordPress’ “user guidelines” say it’s not OK to “disclose the sensitive personal information of others,” so WordPress may have decided to enforce its own guidelines even if Section 230 immunized it if it took no action.

Separately, Hoskins runs the Northeastshooters.com message boards in Massachusetts. A user, headednorth, reposted Publius’ directory of home addresses and phone numbers. The legislative counsel sent a similar takedown demand to Hoskins, and he complied.

The Court Opinion

The plaintiffs sought a declaration that Sec. 6254.21(c) violates the First Amendment, the Dormant Commerce Clause and Section 230. The court grants a preliminary injunction based on the First Amendment and DCC but not Section 230; and seemingly to emphasize how ridiculous the government’s position is, it requires the plaintiffs to post a bond of $1.00.

Standing. Hoskins had standing because “As the owner of Northeastshooters.com, Hoskins has a First Amendment right to distribute and facilitate protected speech on the site….Defendant’s takedown demand letter threatening legal action against Hoskins if he did not immediately comply and remove headednorth’s post, coupled with Hoskins’s compliance with the demand, constitutes a cognizable constitutional injury.” In a footnote, the court adds “Hoskins, as the owner and operator of Northeastshooters.com, has third-party standing to assert the First Amendment rights of its anonymous users, such as headednorth.” other interesting reads immune under Section 230, or (b) they might decide to fight substantively.

Publius’ injury was the removal of his blog post, but the state contested that it was responsible for the removal of his post because WordPress did the deed. The court says it’s plausible that WordPress acted only because of the state’s takedown-staydown demand.

First Amendment. The court says Sec. 6254.21 triggers strict scrutiny because it’s “content-based on its face: it applies only to speech that contains certain content—the ‘home address or telephone number of any elected or appointed [California] official.’” The court quotes Bartnicki v. Vopper: “state action to punish the publication of truthful information seldom can satisfy constitutional standards.” More specifically, “the First Amendment protects the right to publish highly personal information of private individuals, such as the names of rape victims and juveniles involved in legal proceedings, when they relate to matters of public concern.” Here, publication of the legislators’ information was part of a political protest against the ammo registry, which disclosed similarly private info for ammo traders. The court explains:

Plaintiffs’ means of protesting the legislation is by compiling their own “database” of the legislators’ residential addresses and phone numbers. Like the plaintiff in Ostergren, that information is not just “integral to [Plaintiffs’] message,” it is their message.

The court then explains a number of reasons why the law isn’t narrowly tailored:

* the law only requires the politician to subjectively perceive a threat, irrespective of whether the threat is credible
* the law doesn’t distinguish between information that is private and information that has already been publicized
* the law is underinclusive because it only restrict Internet publication, not other media.

Dormant Commerce Clause. The court says that, as applied to Hoskins, the law reaches extraterritoriality to govern activity taking place solely outside California. “The statute does not limit its application to California, nor does it require that websites displaying officials’ home address or telephone numbers bar California only internet users’ access.”

Section 230. Hoskins apparently takes the position that California violated Section 230 by sending him a takedown demand. I like that theory, but that’s not how Section 230 works. The court says Section 230 only acts as a shield from lawsuits and possibly a sword against statutes that violate it; it’s not a sword against wrongful takedown demands (compare the uncited 17 USC 512(f), which is such a sword, though imperfect). Citing Google v. Hood, the court says that the law’s imposition of liability on intermediaries isn’t ripe for review because no such imposition occurred in this case.

Implications

Watching the watchers. I don’t personally love the protesting method of publishing a politician’s home contact information. I don’t think a politician should have to sacrifice all privacy as part of the job; they deserve private spaces where they can feel personally safe. This case reminds me a little of the Planned Parenthood v. ACLA case involving the publication of home addresses of doctors who performed abortions, followed by strikethroughs in their names when they were killed. Politicians shouldn’t have to feel this kind of stress.

However, in this case, this particular protest against the ammo trader registry effectively made its point that government-mandated disclosures are a powerful and possibly overly blunt tool. Furthermore, Sec. 6254.21 expressly suppresses truthful information, which is a big no-no. This reminds me a little of the anti-IMDb law recently passed by the California legislature, which also was struck down as unconstitutional in IMDb v. Becerra

Internet exceptionalism. The law regulates the publication of politicians’ personal information online, but not in other media. What justifies this Internet exceptionalism? Probably nothing. The court says in a footnote that “Ironically, a newspaper could face no liability under § 6254.21(c)(1) for publishing in print the same information that it posts online.” I can (and eventually will) make the case for Section 230’s exceptionalism, but I can’t construct any cogent argument for 6254.21’s exceptionalism.

State laws that provide qualified exclusions for Section 230. The law expressly acknowledges Section 230, but then it provides an inconsistent exclusion from liability that’s narrower than Section 230’s immunity. (Hoskins raised this implicit conflict, but apparently too late). State legislatures have occasionally made this type of gesture to Section 230, and though it wasn’t resolved in this case, those efforts to provide narrower immunities than Section 230 will fail in court. Even if the base law survived, Section 230 would override the state’s exception.

Dormant Commerce Clause. I’ve long taken the position that all state-based efforts to regulate the Internet violate the Dormant Commerce Clause. This ruling is a nice and clean application of that principle. At minimum, states that want to regulate the Internet should expressly limit their laws to situations when all relevant parties are located in their state and they all know that fact. Even then, I may have DCC concerns, but any state law without such territorial restrictions should be constitutionally dubious.

What’s Next? Last Friday, the parties filed a joint status motion:

Defendant has advised that it will not appeal the preliminary injunction ruling but rather wishes to proceed with discovery and, ultimately, to a final judgment in the District Court. The parties agree the case should not require a trial.

Defendant has further advised that it objects to Doe Publius proceeding pseudonymously and has requested that Publius file a motion to continue proceeding in that manner. Publius has agreed to file such motion by March 29, 2017.

Plaintiffs and Defendant engaged in a preliminary discussion and written meet-and-confer on what discovery Defendant contends is necessary or appropriate in light of the preliminary injunction ruling and Plaintiffs’ desire to promptly position the case for resolution at summary judgment. If the parties are unable to reach agreement, Plaintiffs anticipate filing a request that the June 8, 2017 mid-discovery status conference be advanced, as the magistrate’s calendar permits.

Case citation: Doe Publius v. Boyer-Vine, 2017 WL 772146 (E.D. Cal. Feb. 27, 2017). Doe Publius’ victory blog post.

This is a thoughtful, careful and well-constructed opinion that made me proud to be an American, so I’m going to give the Technology & Marketing Law Blog’s Judge-of-the-Day award to Judge Lawrence J. O’Neill.
cited https://blog.ericgoldman.org/archives/2017/03/constitution-protects-publication-of-politicians-home-addressphone-number-publius-v-boyer-vine.htm

Publius v. Boyer-Vine – 1st Amendment – Posting Address

16-1152 – Publius v. Boyer-Vine

Concluding that Christie’s “make clear that extraterritoriality doctrine applies beyond statutes that regulate out-of-state prices”

Summary of this case from N. Am. Meat Inst. v. Becerra

Opinion

1:16–cv–1152–LJO–SKO

02-27-2017

Doe PUBLIUS and Derek Hoskins, Plaintiffs, v. Diane F. BOYER–VINE, in her official capacity as Legislative Counsel of California, Defendant.

Bradley A. Benbrook, Stephen M. Duvernay, Benbrook Law Group, Sacramento, CA, Eugene Volokh, UCLA School of Law, Los Angeles, CA, for Plaintiffs. Fredric D. Woocher, Jenna Lauter Miara, Strumwasser & Woocher LLP, Los Angeles, CA, for Defendant.

Lawrence J. O’Neill, UNITED STATES CHIEF DISTRICT JUDGE

Bradley A. Benbrook, Stephen M. Duvernay, Benbrook Law Group, Sacramento, CA, Eugene Volokh, UCLA School of Law, Los Angeles, CA, for Plaintiffs.

Fredric D. Woocher, Jenna Lauter Miara, Strumwasser & Woocher LLP, Los Angeles, CA, for Defendant.

MEMORANDUM DECISION AND ORDER RE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION (Doc. 19)

Lawrence J. O’Neill, UNITED STATES CHIEF DISTRICT JUDGE

I. INTRODUCTION

Plaintiffs Doe Publius and Derek Hoskins bring this civil rights case under 42 U.S.C. § 1983 (” § 1983“), challenging California Government Code § 6254.21(c) (” § 6254.21(c)“) under the First Amendment, the Commerce Clause, and 47 U.S.C. § 230 (” § 230“). Plaintiffs move for a preliminary injunction that prevents Defendant Diane F. Boyer–Vine, Legislative Counsel for the Office of Legislative Counsel of California (“the Office”), from enforcing § 6254.21(c) against them. See Doc. 19–1 at 26.

Publius brings this suit anonymously under Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1068 (9th Cir. 2000), because he believes doing so is “necessary to preserve [his] First Amendment right to speak anonymously when criticizing the government … and to guard against the risk of retaliatory and unfounded prosecution under the criminal provisions of the statutory scheme [he] challenges,” specifically, California Government Code § 6254.21(c). Doc. 12, First Amended Complaint (“FAC”), at ¶ 12 n.1. Publius states in the FAC that he intends to file a motion to pursue this case anonymously, but, to date, he has not done so. Id. Defendant, however, has not objected to his anonymity.

The Court took the matter under submission on the papers pursuant to Local Rule 230(g). Doc. 23. For the following reasons, the Court GRANTS IN PART and DENIES IN PART Plaintiffs’ motion.

II. FACTUAL AND PROCEDURAL BACKGROUND

On July 1, 2016, California Governor Jerry Brown signed several gun control bills into law. Doc. 12, First Amended Complaint (“FAC”), at ¶ 15. One of those bills established a database tracking all ammunition purchases in California. See Cal. Penal Code §§ 30352, 30369. The database includes the driver’s license information, residential address and telephone number, and date of birth for anyone who purchases or transfers ammunition in California. See id.

Publius maintains a political blog under the name, “The Real Write Winger.” FAC at ¶ 15. On July 5, 2016, in response to the California legislature’s gun control legislation, he posted the following blog entry, titled “Tyrants to be registered with California gun owners”:

If you’re a gun owner in California, the government knows where you live. With the recent anti gun, anti Liberty bills passed by the legisexuals in the State Capitol and signed into law by our senile communist governor, isn’t it about time to register these tyrants with gun owners?

Compiled below is the names, home addresses, and home phone numbers of all the legislators who decided to make you a criminal if you don’t abide by their dictates. “Isn’t that dangerous, what if something bad happens to them by making that information public?” First, all this information was already public; it’s just now in one convenient location. Second, it’s no more dangerous than, say, these tyrants making it possible for free men and women to have government guns pointed at them while they’re hauled away to jail and prosecuted for the crime of exercising their rights and Liberty.

These tyrants are no longer going to be insulated from us. They used their power we entrusted them with to exercise violence against us if we don’t give up our rights and Liberty. This common sense tyrant registration addresses this public safety hazard by giving the public the knowledge of who and where these tyrants are in case they wish to use their power for violence again.

So below is the current tyrant registry. These are the people who voted to send you to prison if you exercise your rights and liberties. This will be a constantly updated list depending on future votes, and if you see a missing address or one that needs updating, please feel free to contact me. And please share this with every California gun owner you know.

To be fair, the only way for a tyrant to have their name removed from the tyrant registry is to pass laws which repeal the laws that got them added to the list, or upon the tyrant’s death. Otherwise, it is a permanent list, even after the tyrant leaves office. The people will retain this information and have access to it indefinitely.

FAC at ¶ 17. Through searching public records for free on zabasearch.com , Publius compiled the names, home addresses, and phone numbers of 40 California legislature members who had voted in favor of the gun control measures. Id. at ¶¶ 17–18. He then posted that information on his blog. Id. at ¶ 17.

Defendant describes zabasearch as “a commercial vendor,” and therefore contends Publius “did not obtain the legislators’ addresses from public records.” Doc. 20 at 24–25. But, according to zabasearch.com, “[a]ll information found using ZabaSearch comes from public records databases. That means information collected by the government, such as court records, country records, state records, such as the kind of information that becomes public when you buy a new house or file a change-of-address form with the United States Postal Service.” See www.zabasearch.com/faq (last visited February 7, 2017). Defendant therefore does not dispute that the legislators’ personal information Publius posted was publicly available.

In the days that followed, several legislators received threatening phone calls and social media messages that appeared to have been prompted by Publius’s blog entry. Doc. 21, Declaration of Frederic Woocher (“Woocher Decl.”), at ¶ 2. Specifically,

there were reports from at least four different State Senators that either they or one of their family members had received a phone call at their residence from an unidentified male speaker saying, “I know your address and don’t you wish you knew who I am?” One of the calls was received by the step-son of a Senator who was alone in the home while the Senator and his wife were away. At least two other Senators had reported receiving (and forwarded to the [California Senate] Sergeant-at-Arms) threatening social media messages; one warned: “You have no right to pass laws to take my constitutional rights away. (2nd & 1st amendments) Let alone pass a bill that makes you exempt from the very same laws. I’ve have [sic] shared your home address in the Internet. The People will be acting on this.”

Id.

The Senate Sergeant-at-Arms sent the Office “a request to seek the removal of the legislators’ home addresses from the internet pursuant to section 6254.21(c).” Doc. 20 at 13. In response, on July 8, 2016, Deputy Legislative Counsel Kathryn Londenberg sent a written demand to WordPress.com, who hosted Plaintiff’s blog. FAC at ¶ 19. The demand stated:

To whom it may concern:

My office represents the California State Legislature. It has come to our attention that the home addresses of 14 Senators and 26 Assembly Members have been publically posted on an Internet Web site hosted by you without the permission of these elected officials. Specifically, the user on your platform by the name of “therealwritewinger” posted the home addresses of these elected officials on his or her Web site….

This letter constitutes a written demand under subdivision (c) of Section 6254.21 of the Government Code that you remove these home addresses from public display on that Web site, and to take steps to ensure that these home addresses are not reposted on that Web site, a subsidiary Web site, or any other Web site maintained or administered by WordPress.com or over which WordPress.com exercises control. Publicly displaying elected officials’ home addresses on the Internet represents a grave risk to the safety of these elected officials.

On the “therealwritewinger” blog site, the user describes the listed legislators as “tyrants,” encourages readers to share the legislators’ home addresses with other gun owners, and threatens that the home addresses will not be removed unless the legislator repeals specified gun laws or “upon the tyrant’s death.” The Senators and Assembly Members whose home addresses are listed on this Web site fear that the public display of their addresses on the Internet will subject them to threats and acts of violence at their homes.

To comply with the law, please remove the home addresses of these elected officials from your Web site no later than 48 hours after your receipt of this letter (cl. (i), subpara. (D), para. (1), subd. (c), Sec. 6254.21, Gov. C.). You are also required to continue to ensure that this information is not reposted on that Web site, any subsidiary Web site, or any other Web site maintained by you (subpara. (D), para. (1), subd. (c), Sec. 6254.21, Gov. C.).

…. If these home addresses are not removed from this Web site in a timely manner, we reserve the right to file an action seeking injunctive relief, as well as associated court costs and attorney’s

fees ( para. (2), subd. (c), Sec. 6254.21, Gov. C.).

Id. WordPress immediately removed Publius’s entire blog entry. Id. at ¶ 20. Publius requested a copy of the demand from WordPress. Doc. 12–2 at 1. WordPress forwarded the letter, explaining that “[u]nder subdivision (c) of Section 6254.21 of the Government Code, an authorized representative from the state of California ha[d] demanded that we disable” Publius’s blog entry. Id.

Hoskins, a resident of Massachusetts, id. at ¶ 13 owns and moderates the website Northeastshooters.com, “a popular New England online forum for discussing firearms issues and shooting sports activities.” Id. at ¶ 21. On July 11, 2016, Northeastshooters.com users began a discussion about the Legislative Counsel’s takedown demand to WordPress concerning Publius’s blog entry. Id. at ¶ 22. One commenter, under the name “headednorth,” reposted Publius’s compiled list of names, addresses, and home addresses of the California legislators. Id. at ¶ 23. Legislative Counsel Londenberg immediately emailed Hoskins, noted that headednorth had reposted the legislators’ personal information removed from Publius’s blog on Northeastshooters.com, and demanded that Hoskins remove it immediately via a takedown demand that was “materially identical” to the one sent to WordPress. Id. at ¶ 24. Hoskins complied. Id. at ¶ 5.

In the FAC, Plaintiffs allege Hoskins is a resident of Massachusetts, but in their moving papers they claim he is a resident of New Hampshire. See, e.g., Doc. 19–1 at 23. His residency is relevant only insofar as he challenges § 6254.21(c)‘s reach beyond California, so the analysis of his claims is the same whether he is a resident of Massachusetts or New Hampshire.

Plaintiffs seek a declaratory judgment from the Court that § 6254.21(c) violates (1) the First Amendment both facially and as applied to both of them; (2) the Commerce Clause, U.S. Const., art. I, § 8, cl. 3, as applied to Hoskins’s out-of-state speech; and (3) § 230 as to Hoskins and other computer service providers. FAC at 16. Plaintiffs currently seek a preliminary injunction on these grounds, and ask the Court to enjoin Defendant from “enforcing or applying” § 6254.21(c) against them. Doc. 19 at 2. Defendant argues, among other things, that: (1) Plaintiffs lack standing; (2) Plaintiffs fail to state a claim under § 1983 ; and (3) the statute is entirely lawful. Doc. 20 at 8.

III. STANDARD OF DECISION

To secure injunctive relief prior to a full adjudication on the merits, a plaintiff must show “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc. , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). Injunctive relief is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Id. at 22, 129 S.Ct. 365. The Ninth Circuit follows a “sliding scale” approach to preliminary injunctions. See Alliance for the Wild Rockies v. Cottrell , 632 F.3d 1127, 1131 (9th Cir. 2011). “Under this approach, the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another.” Id. at 1131–32. For example, if the moving party is unable to establish a likelihood of success on the merits, preliminary injunctive relief may still be proper if the party can show that (1) there are at least “serious questions” going to the merits; (2) the balance of the hardships tips “sharply” in its favor; and (3) the other factors listed in Winter (i.e. , irreparable harm and in the public interest) are satisfied. Id. at 1135.

IV. ANALYSIS

A. Plaintiffs have standing

1. Standing principles

Standing is a judicially created doctrine that is an essential part of the case-or-controversy requirement of Article III. Pritikin v. Dept. of Energy , 254 F.3d 791, 796 (9th Cir. 2001). “To satisfy the Article III case or controversy requirement, a litigant must have suffered some actual injury that can be redressed by a favorable judicial decision.” Iron Arrow Honor Soc. v. Heckler , 464 U.S. 67, 70, 104 S.Ct. 373, 78 L.Ed.2d 58 (1983). “In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin , 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). The doctrine of standing “requires careful judicial examination of a complaint’s allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted.” Allen v. Wright , 468 U.S. 737, 752, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). The court is powerless to create its own jurisdiction by embellishing otherwise deficient allegations of standing. Whitmore v. Arkansas , 495 U.S. 149, 155–56, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) ; Schmier v. U.S. Court of Appeals for Ninth Circuit , 279 F.3d 817, 821 (9th Cir. 2002).

Generally, to have standing, a plaintiff must show three elements.

First, the plaintiff must have suffered an “injury in fact”—an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Lujan v. Defenders of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal citations and quotations omitted). First Amendment cases, however, “present unique standing considerations.” Ariz. Right to Life Pol. Action Comm. v. Bayless , 320 F.3d 1002, 1006 (9th Cir. 2003). “In an effort to avoid the chilling effect of sweeping restrictions, the Supreme Court has endorsed what might be called a ‘hold your tongue and challenge now’ approach rather than requiring litigants to speak first and take their chances with the consequences” Id. (citations omitted). “[A]s the Supreme Court has recognized, a chilling of the exercise of First Amendment rights is, itself, a constitutionally sufficient injury.” Id. Accordingly, “the Supreme Court has dispensed with rigid standing requirements [in First Amendment cases] and recognized ‘self-censorship’ as a harm that can be realized even without an actual prosecution.” Human Life of Wash., Inc. v. Brumsickle , 624 F.3d 990, 1000 (9th Cir. 2010). “[W]here a plaintiff has refrained from engaging in expressive activity for fear of prosecution under the challenged statute, such self-censorship is a constitutionally sufficient injury as long as it is based on an actual and well-founded fear that the challenged statute will be enforced.” Id. at 1001 (quotation marks omitted). Thus, “when the threatened enforcement effort implicates First Amendment rights, the inquiry tilts dramatically toward a finding of standing.” LSO, Ltd. v. Stroh , 205 F.3d 1146, 1155 (9th Cir. 2000).

Self-censorship for fear of civil liability may be a sufficient injury for standing purposes. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254, 277, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).

First Amendment challenges may be brought as “facial” or “as-applied” challenges. See Santa Monica Food Not Bombs v. City of Santa Monica , 450 F.3d 1022, 1033 (9th Cir. 2006). The Ninth Circuit succinctly described the challenges as follows:

Facial constitutional challenges come in two varieties: First, a plaintiff seeking to vindicate his own constitutional rights may argue that an ordinance is unconstitutionally vague or … impermissibly restricts a protected activity. Second, an individual whose own speech or expressive conduct may validly be prohibited or sanctioned is permitted to challenge a statute on its face because it also threatens others not before the court. The former sort of challenge … may be paired with the more common as-applied challenge, where a plaintiff argues that the law is unconstitutional as applied to his own speech or expressive conduct.

Id. at 1033–34 (citations and quotation marks omitted). “It is within this framework that [Plaintiffs] … must establish standing.” Id. at 1034.

2. Analysis

Defendant contends Plaintiffs cannot demonstrate that Defendant caused them to suffer any injury that could be favorably addressed by the Court. As to Publius, the thrust of Defendant’s position is that it is “quite plausible, if not probable” that WordPress removed Publius’s blog entry on its own accord because it violated WordPress’s terms of service and, in any event, Plaintiffs have not presented any evidence that WordPress would permit the blog entry even if Defendant never invoked § 6254.21(c) or if the Court found the statute unlawful. See Doc. 20 at 18–19. As to Hoskins, Defendant concedes (and the Court agrees) that “there is no issue regarding the causation and redressability prongs of the constitutional standing requirements,” but argues that Hoskins did not suffer any injury. Id. at 19. Instead, Defendants argue that only the user of his site, “headednorth,” whose post Hoskins removed, suffered any asserted injury. Id.

That Hoskins did not produce the content contained in headednorth’s removed post does not mean he did not and cannot suffer a First Amendment injury. As the owner of Northeastshooters.com, Hoskins has a First Amendment right to distribute and facilitate protected speech on the site. See Smith v. California , 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959) (striking down statute imposing strict liability on a seller of obscene books as violating First Amendment); Joseph Burstyn, Inc. v. Wilson , 343 U.S. 495, 497, 72 S.Ct. 777, 96 L.Ed. 1098 (1952) (striking down statute prohibiting movie producer’s distribution of movie); Bantam Books, Inc. v. Sullivan , 372 U.S. 58, 59–61, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963) (holding book distributors had standing to challenge law restricting the sale of certain books). The mere threat of prosecution under a challenged statute that results in actual self-censorship constitutes “a constitutionally sufficient injury as long as it is based on an actual and well-founded fear that the challenged statute will be enforced.” Human Life , 624 F.3d at 1001. Defendant’s takedown demand letter threatening legal action against Hoskins if he did not immediately comply and remove headednorth’s post, coupled with Hoskins’s compliance with the demand, constitutes a cognizable constitutional injury. See id. ; Bayless , 320 F.3d at 1006 (finding that plaintiff, who was “forced to modify its speech and behavior to comply with the statute,” had suffered sufficient injury even though it had “neither violated the statute nor been subject to penalties for doing so”). The Court therefore finds that Hoskins has standing to challenge § 6254.21(c) both on its face and as-applied to him.

In any event, Defendant seemingly does not dispute that headednorth would have standing to challenge § 6254.21(c) under the First Amendment. See Doc. 20 at 19. Though Plaintiffs do not make the argument, Hoskins, as the owner and operator of Northeastshooters.com, has third-party standing to assert the First Amendment rights of its anonymous users, such as headednorth. Enterline v. Pocono Med. Ctr., 751 F.Supp.2d 782, 785 (M.D. Pa. 2008) (holding as matter of first impression that website owner may assert First Amendment rights of third-party anonymous users of its site);McVicker v. King, 266 F.R.D. 92, 95–96 (W.D. Pa. 2010) (relying on Enterline and holding the same);In re Drasin, No. ELH-13-1140, 2013 WL 3866777, at *2 n.1 (D. Md. July 24, 2013) (same); In re Verizon Internet Servs., Inc., 257 F.Supp.2d 244, 257–58 (D.D.C. 2003) (holding that Verizon had standing to assert First Amendment rights of its customers), rev’d on other grounds, 351 F.3d 1229, 1239 (D.C. Cir. 2003)see also Trawinski v. Doe, No. L-8026-12, 2015 WL 3476553, *4–5 (N.J. Super. Ct. App. Div. June 2, 2015) (applying First Amendment standing principles); Indiana Newspapers, Inc. v. Miller, 980 N.E.2d 852, 858–59 (Ind. 2012) (same).

Defendant does not dispute that Publius suffered a constitutional injury, but disputes whether the Office caused his asserted injury and whether the Court could redress it favorably. Defendant essentially argues that there is no evidence that WordPress removed Publius’s blog post as a result of the Office’s demand letter, and that it is plausible that WordPress did so on its own accord because the post violated WordPress’s terms of service. Thus, Defendant claims, it is plausible that WordPress would remove the post regardless of the Court’s decision.

The only evidence concerning WordPress’s motivation in removing Publius’s blog entry does not support Defendant’s position. As explained above, WordPress removed the blog post immediately after the Office sent the takedown demand. Publius, somehow cognizant of the Office’s demand, requested a copy of it. WordPress forwarded the Office’s demand to Publius, and explained that “[u]nder subdivision (c) of Section 6254.21 of the Government Code, an authorized representative from the state of California has demanded that we disable [your blog entry].” Doc. 19–2 at 13. WordPress provided no other explanation for its removing the blog entry. On the current record, Defendant’s assertion that WordPress removed the entry because it violated the site’s terms of service is entirely speculative, not “quite plausible, if not probable.” Doc. 20 at 18. Likewise, because the only evidence (direct and circumstantial) submitted suggests that WordPress removed the blog post because of the Office’s takedown demand, it is plausible that it would not have been removed but for the demand.

Further, Publius does not simply claim his asserted First Amendment right is to post as he sees fit on WordPress alone, as Defendant suggests. Publius challenges § 6254.21(c)‘s prohibition on his ability to repost the legislators’ personal information anywhere online—or “through any other medium.” § 6254.21(c)(1)(D)(ii). Although this case does not present the Court with any jurisdiction to control the content on WordPress, a private entity, the Court does have the authority (and obligation) to determine whether legislation violates the First Amendment. The Court’s finding that § 6254.21(c) does so would redress Publius’s asserted injury. Accordingly, the Court finds that Publius has standing to challenge § 6254.21(c). B. Defendant’s conduct was under color of law

“To state a claim for relief under section 1983, the Plaintiffs must plead two essential elements: 1) that the Defendant[ ] acted under color of state law; and 2) that the Defendant[ ] caused them to be deprived of a right secured by the Constitution and laws of the United States.” Johnson v. Knowles , 113 F.3d 1114, 1117 (9th Cir. 1997). Defendant asserts Plaintiffs fail to state a claim under § 1983 because the Office’s sending the takedown demand letters was not “under color of law” and, consequently, the Court lacks jurisdiction over this case. Doc. 20 at 20–21; West v. Atkins , 487 U.S. 42, 46, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) (holding that acting under color of state law is “a jurisdictional requisite for a § 1983 action”). Distilled, Defendant argues that the Office’s sending the takedown demand letters to WordPress and Hoskins on behalf of the California legislators was not state action because the legislators were acting as private citizens who made private decisions to threaten private lawsuits if their personal information was not removed. Doc. 20 at 20.

Although not raised in the briefs, the Court notes that the “Eleventh Amendment bars suits for money damages in federal court against a state, its agencies, and state officials acting in their official capacities.” Aholelei v. Dep’t of Pub. Safety, 488 F.3d 1144, 1147 (9th Cir. 2007). State official defendants named in their official capacities are subject only to suit “for prospective declaratory and injunctive relief … to enjoin an alleged ongoing violation of federal law” under § 1983. Flint v. Dennison, 488 F.3d 816, 824–25 (9th Cir. 2007) (citation omitted); Lacano Investments, LLC v. Balash, 765 F.3d 1068, 1072 (9th Cir. 2014) (“[The Eleventh Amendment does not bar actions when citizens seek only injunctive or prospective relief against state officials who would have to implement a state law that is allegedly inconsistent with federal law.”) (citations omitted).

“An individual acts under color of state law when he or she exercises power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.” Naffe v. Frey , 789 F.3d 1030, 1036 (9th Cir. 2015) (citations and quotation marks omitted). “This test is generally satisfied when a state employee … wrongs someone while acting in his official capacity or while exercising his responsibilities pursuant to state law.” Id. (citations and quotation marks omitted).

Defendant relies primarily on Gritchen v. Collier , 254 F.3d 807 (9th Cir. 2001), and Laxalt v. McClatchy , 622 F.Supp. 737 (D. Nev. 1985), for her position that the Office’s conduct was not state action. In Gritchen , the plaintiff (Gritchen) filed a formal complaint against a police officer, Collier, claiming that Collier “had been discourteous, argumentative, and that his breath smelled like alcohol.” 254 F.3d at 809. After the police department “found no misconduct,” Collier, through his attorney, sent Gritchen a letter threatening to bring suit for defamation under California Civil Code § 47.5, which permits peace officers to bring defamation actions against someone who files a false complaint. Id. at 809–10. Gritchen then filed a § 1983 suit alleging, among other things, that § 47.5 violates the First Amendment. Id. at 810. The Ninth Circuit held that Collier’s conduct—threatening to sue Gritchen for defamation under § 47.5—was not “under color of state law” because he acted “entirely by himself, without assistance from state officials.” Id. at 813–14.

In Laxalt , the plaintiff (Laxalt), a United States Senator, brought suit against numerous newspapers and their staff for their allegedly defamatory articles. 622 F.Supp. at 739. The defendants counterclaimed against Laxalt under § 1983, arguing that the Senator had violated their First Amendment rights by using his office to chill their speech. Id. at 746. The basis for their claims was that, shortly after the defendants published their articles, Laxalt sent them a letter on Senate stationary with his signature demanding the sources for the articles and that they be retracted. Id. at 747. The defendants construed the letter as a threat from Laxalt that he would use his office “to retaliate against them if they did not comply.” Id. The court rejected the defendants’ claim, finding that Laxalt “ha[d] proceeded, as any other private citizen would have, to clear his name … and to recover damages for an alleged libel.” Id. at 748.

Gritchen and Laxalt are easily distinguishable from this case. In both of those cases, the government officials acted individually as wholly private citizens without the aid of any other government official. That is not what happened here. At the legislators’ request, the Office sent the takedown demands to WordPress and Hoskins, which explicitly stated that the Office “represents the California State Legislature.” The letter concluded: “If these home addresses are not removed from this Web site in a timely manner, we reserve the right to file an action seeking injunctive relief, as well as associated court costs and attorney’s fees.” FAC at ¶ 19 (Emphasis added.). Unlike Gritchen and Laxalt , this case does not involve a state employee’s private attorney threatening legal action on behalf of one individual. The Office informed WordPress and Hoskins that if they did not comply, the Office—on behalf of the legislators—would consider legal action, including attempting to recover the Office’s statutorily available fees and costs. The Office, a government entity, therefore provided legal services on behalf of 40 state legislators at their request and made that clear to WordPress and Hoskins when doing so. In the Court’s view, it is difficult to conceive how this could not constitute state action. See Frey , 789 F.3d at 1036.

C. Plaintiffs’ First Amendment challenge

Plaintiffs contend § 6254.21(c) is a content-based restriction on constitutionally protected speech that violates the First Amendment on its face and as applied to them. See Doc. 19–1 at 15. Defendant does not dispute the statute is content-based, but argues it is nonetheless lawful under the First Amendment. See Doc. 20 at 15.

As to Plaintiffs’ facial challenge, they contend § 6254.21(c) is impermissibly overbroad. “[A] law may be invalidated as overbroad if ‘a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.’ ” United States v. Stevens , 559 U.S. 460, 473, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (quoting Wash. State Grange v. Wash. State Republican Party , 552 U.S. 442, 449 n.6, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008) ). “Technically, the overbreadth doctrine does not apply if the parties challenging the statute engage in the allegedly protected expression,” as Plaintiffs did here, because the doctrine is used “to overcome what would otherwise be a plaintiff’s lack of standing.” Nunez ex rel. Nunez v. City of San Diego , 114 F.3d 935, 949 (9th Cir. 1997). “A party seeking to challenge the constitutionality of a statute generally must show that the statute violates the party’s own rights,” but “[t]he First Amendment overbreadth doctrine carves out a narrow exception to that general rule.” United States v. Stevens , 559 U.S. 460, 483, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (Alito, J., dissenting) (citations omitted). Plaintiffs, however, may still “seek, as a remedy, the facial invalidation of [a statute] if it is an overly broad regulation that create[s] an unacceptable risk of the suppression of ideas.” ACLU of Nev. v. City of Las Vegas , 466 F.3d 784, 790 n.9 (9th Cir. 2006) (citation and quotation marks omitted).

But “because a successful overbreadth challenge renders a statute unconstitutional and, therefore, invalid in all its applications … the doctrine is employed sparingly and only as a last resort.” United States v. Alvarez , 617 F.3d 1198, 1236 (9th Cir. 2010) (emphasis in original) (citations and quotation marks omitted), aff’d , 567 U.S. 709, 132 S.Ct. 2537, 183 L.Ed.2d 574 (2012). Accordingly, when a litigant brings both an as-applied and facial challenge, the Supreme Court has strongly suggested that courts should address the facial challenge only if the as-applied challenge fails. See Serafine v. Branaman , 810 F.3d 354, 363 n.19 (5th Cir. 2016) (collecting cases). The Court therefore turns first to Plaintiffs’ as-applied challenge.

1. Background on § 6254.12(c)

Section § 6254.21(c)(1)(A) prohibits anyone from posting or displaying the home address or telephone number of certain government officials, see § 6254.21(f), if the official makes “a written demand” that his or her personal information not be displayed. The written demand must “include a statement describing a threat or fear for the safety of that official or of any person residing at the official’s home address.” § 6254.21(c)(1)(B). A written demand is “effective for four years.” § 6254.21(c)(1)(C). After receiving such a written demand, the recipient must remove the official’s home address and/or phone number from the internet within 48 hours, and may not “transfer” it to anyone through any medium. § 6254.21(c)(1)(D)(i)–(ii).

“An official whose home address or telephone number is made public as a result of a violation of [ § 6254.21(c)(1) ] may bring an action seeking injunctive or declarative relief.” § 6254.21(c)(2). “If a court finds that a violation has occurred, it may grant injunctive or declarative relief and shall award the official court costs and reasonable attorney’s fees.”Id.

Briefly summarized, if someone publishes the home address or telephone number of certain officials on the internet, those officials may demand that it be removed. The official must make the demand in writing, and must describe the threat or fear for safety the official feels personally or for his or her family who reside at the official’s home address. Anyone who receives such a demand must remove it within 48 hours, must takes steps to ensure it is not reposted, and may not communicate the information to anyone through any medium. If the official’s home address or telephone number “is made public” because someone posted the information online without the official’s consent, the official may seek a court order to have the information removed from the internet. If the court finds that the individual who posted the information online failed to comply timely with the official’s demand, then the court must award attorney’s fees to the official, regardless of the relief the court orders.

Defendant disputes how § 6254.21(c)‘s attorney’s fees and costs provision operates. The Court discusses its disagreement with Defendant’s interpretation in a more relevant context below.

2. Section 6254.21(c) is content-based

Section 6254.21(c)(1)(A) states, “[n]o person, business, or association shall publicly post or publicly display on the Internet the home address or telephone number of any elected or appointed [California] official” if the official makes a written demand that his or her personal contact information be removed. An enforcing official could not determine whether § 6254.21(c)(1) applies to particular speech without determining if (1) the speech contains a home address and/or phone number of (2) a covered official. The statute is therefore content-based on its face: it applies only to speech that contains certain content—the “home address or telephone number of any elected or appointed [California] official.” See Reed v. Town of Gilbert, Ariz. , ––– U.S. ––––, 135 S.Ct. 2218, 2227, 192 L.Ed.2d 236 (2015) (“Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.” (citations omitted)); see also S.O.C., Inc. v. Cty. of Clark , 152 F.3d 1136, 1145 (9th Cir. 1998) (holding that regulations that require officials to examine content of speech to determine whether regulation applies are content-based (collecting cases)).

3. Analysis

“Content-based laws—those that target speech based on its communicative content—are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.” Reed , 135 S.Ct. at 2226. This requires the government to show that the law is “the least restrictive means to further a compelling interest.” Foti v. City of Menlo Park , 146 F.3d 629, 637 (9th Cir. 1998) (citation omitted). Because § 6254.21(c)(1) is content-based, Defendant must establish that, when applied to Plaintiffs’ speech, the statute is narrowly tailored to a compelling state interest. See Reed v. Town of Gilbert, Ariz. , 587 F.3d 966, 974 (9th Cir. 2009), rev’d on other grounds , ––– U.S. ––––, 135 S.Ct. 2218, 192 L.Ed.2d 236.

“As a general matter, ‘state action to punish the publication of truthful information seldom can satisfy constitutional standards.’ ” Bartnicki v. Vopper , 532 U.S. 514, 527, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001) (quoting Smith v. Daily Mail Pub. Co. , 443 U.S. 97, 102, 99 S.Ct. 2667, 61 L.Ed.2d 399 (1979) ). “More specifically, [the Supreme Court] has repeatedly held that ‘if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need … of the highest order.’ ” Id. at 527–28, 121 S.Ct. 1753 (quoting Daily Mail , 443 U.S. at 103, 99 S.Ct. 2667 ).

Individuals who use the internet to disseminate their speech, such as Plaintiffs, are entitled to full First Amendment protections. See Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997). (“We agree with [the district court’s] conclusion that our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to [the internet].”). Cases that concern other forms of media (e.g., newspapers) therefore apply with full force to speech on the internet.

a. The legislators’ personal information is a matter of public significance

Defendant suggests, in a footnote, that it is “questionable” whether the legislators’ personal information is “a matter of public significance.” Doc. 20 at 23 n.12. For decades, the Supreme Court has broadly held that “[p]ublic records by their very nature are of interest to those connected with the administration of government, and a public benefit is performed by the reporting of the true contents of the records by the media.” Cox Broadcasting Corp. v. Cohn , 420 U.S. 469, 495, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975). Thus, several cases demonstrate that the First Amendment protects the right to publish highly personal information of private individuals, such as the names of rape victims and juveniles involved in legal proceedings, when they relate to matters of public concern.

Cox concerned only information contained and placed into the public record through “official court records.” 420 U.S. at 495, 95 S.Ct. 1029. But the Supreme Court has long “recognize[d] a general right to inspect and copy public records and documents.” Nixon v. Warner Commnc’ns, Inc., 435 U.S. 589, 597, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). This is true even if the government inadvertently releases the information. See Florida Star v. B.J.F., 491 U.S. 524, 534, 538, 109 S.Ct. 2603, 105 L.Ed.2d 443 (1989) (holding First Amendment protected newspaper’s publishing a rape victim’s name that local police department had inadvertently released to the public).

See, e.g., Cox, 420 U.S. at 496–97, 95 S.Ct. 1029 (holding television reporter had First Amendment right to publish name of 17–year-old rape victim when learned through court documents); Florida Star, 491 U.S. at 526, 109 S.Ct. 2603 (holding newspaper had First Amendment right to publish name of rape victim inadvertently disclosed by police); Oklahoma Publishing Co. v. Dist. Ct., 430 U.S. 308, 308, 97 S.Ct. 1045, 51 L.Ed.2d 355 (1977) (holding media had First Amendment right to publish name and photograph of 11–year-old involved in criminal proceedings that media had attended); Daily Mail, 443 U.S. at 99, 99 S.Ct. 2667 (holding newspapers had First Amendment right to publish names of juvenile offenders)

Viewed in isolation, the legislators’ home address and phone numbers may not, in and of themselves, constitute “a matter of public significance.” But when considered in the specific context of Plaintiffs’ speech—political protest, which is “core political speech,” with First Amendment protection “at its zenith,” Buckley v. Am. Const. Law Found. , 525 U.S. 182, 186–87, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999) —the information takes on new meaning. Publius searched publicly available documents and compiled, and headednorth reposted, the legislators’ personal information specifically in response to legislation that required the government to maintain a database with the personal information of individuals who buy firearms and ammunition in California. When viewed in that context of political speech, the legislators’ personal information becomes a matter of public concern. Snyder v. Phelps , 562 U.S. 443, 453, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011) (“Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community” (citation and quotation marks omitted)); see also Org. for a Better Austin v. Keefe , 402 U.S. 415, 417, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971) (holding injunction on dispersing pamphlets with realtor’s home phone number and urging recipients to call him to urge certain political stance was prior restraint that violated First Amendment). Four cases on which Plaintiffs primarily rely support this proposition well: Florida Star , 491 U.S. 524, 109 S.Ct. 2603, 105 L.Ed.2d 443 ; Brayshaw v. City of Tallahassee , 709 F.Supp.2d 1244 (N.D. Fla. 2010) ; Sheehan v. Gregoire , 272 F.Supp.2d 1135 (W.D. Wash. 2003) ; and Ostergren v. Cuccinelli , 615 F.3d 263 (4th Cir. 2010).

Florida Star involved a challenge to a Florida statute (“§ 794.03”) that made “it unlawful to ‘print, publish, or broadcast … in any instrument of mass communication’ the name of the victim of a sexual offense.” 491 U.S. at 524, 109 S.Ct. 2603. A sheriff’s department investigating a reported rape “prepared a report, which identified [the victim] by her full name, and placed it in the Department’s press room,” which was open to the public. Id. A reporter for The Florida Star “copied the press report verbatim, including [the victim’s] full name,” and subsequently published her full name in an article about the reported crime and the department’s investigation of it. Id. at 528, 109 S.Ct. 2603. The victim successfully sued The Florida Star under § 794.03 for publishing her name.The Supreme Court reversed, and held the First Amendment prohibited imposing liability on The Florida Star for publishing the victim’s name under the circumstances of the case. Id. at 537, 109 S.Ct. 2603. The Court held that “the article generally, as opposed to the specific identity contained within it, involved a matter of paramount public import: the commission, and investigation, of a violent crime which had been reported to authorities.” Id. at 536–37, 109 S.Ct. 2603. The Court therefore concluded that, under its precedent, the article concerned “a matter of public significance.” See id. at 536–37, 109 S.Ct. 2603 (” Cox Broadcasting , supra (article identifying victim of rape-murder); Oklahoma Publishing Co. v. Oklahoma County District Court , 430 U.S. 308, 97 S.Ct. 1045, 51 L.Ed.2d 355 (1977) (article identifying juvenile alleged to have committed murder); Daily Mail , supra (same); cf. Landmark Communications, Inc. v. Virginia , 435 U.S. 829, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978) (article identifying judges whose conduct was being investigated).”).

In Brayshaw , the plaintiff truthfully posted the personal information of a peace officer, including her personal address, phone number, and email, all of which was publicly available. 709 F.Supp.2d at 1247. The plaintiff was charged with a misdemeanor for violating a Florida statute that provided:

Any person who shall maliciously, with intent to obstruct the due execution of the law or with the intent to intimidate, hinder, or interrupt any law enforcement officer in the legal performance of his or her duties, publish or disseminate the residence address or telephone number of any law enforcement officer while designating the officer as such, without authorization of the agency which employs the officer, shall be guilty of a misdemeanor of the first degree.

Id. at 1247.

The court rather summarily rejected the government’s argument that the plaintiff’s speech was unprotected because it was not a matter of public significance. Id. at 1249. The court found that the issue of police accountability was “of legitimate public interest,” and the “publication of truthful personal information about police officers is linked” to that interest “through aiding in achieving service of process, researching criminal history of officers, organizing lawful pickets, and other peaceful and lawful forms of civic involvement that publicize the issue.” Id.

Sheehan involved an overbreadth challenge to a Washington statute that provided:

A person or organization shall not, with the intent to harm or intimidate, sell, trade, give, publish, distribute, or otherwise release the residential address, residential telephone number, birthdate, or social security number of any law enforcement-related, corrections officer-related, or court-related employee or volunteer, or someone with a similar name, and categorize them as such, without the express written permission of the employee or volunteer unless specifically exempted by law or court order.

272 F.Supp.2d at 1139. The plaintiff removed from his website the personal information of numerous officials covered by the statute, then challenged it as overbroad. Id. As in Brayshaw , the court found the officials’ personal information to be a matter of public concern because it was related to the issue of police accountability and could be relevant “to achieve service of process, research criminal history, and to ‘organize an informational picket [at individual officers’ homes] or other lawful forms of civic involvement to force accountability.’ ” Id. at 1139, 1139 n.2.

Ostergren , 615 F.3d 263, a case Plaintiffs characterize as “closely analogous” to this one, is particularly illustrative here. In that case, the plaintiff brought an as-applied challenge to a Virginia statute that prohibited “[i]ntentionally communicat[ing] another individual’s social security number (“SSN”) to the general public.” Id. at 266. “Calling attention to Virginia’s practice of placing land records on the Internet without first redacting SSNs, [the plaintiff] displayed copies of Virginia land records containing unredacted SSNs on her website.” Id. By doing so, she sought “to publicize her message that governments are mishandling SSNs and generate pressure for reform.” Id. at 269 (footnote omitted). The information the plaintiff posted on her website was publicly available for a nominal fee, but her website made the public records “more accessible to the public than they [we]re through Virginia’s [records] system.” Id.

Before she could be prosecuted for posting the SSNs on her website, the plaintiff challenged the Virginia statute as applied to her website on First Amendment grounds. Id. As a threshold matter, the Fourth Circuit rejected the government’s position that unredacted SSNs are entirely unprotected speech under the First Amendment. Id. at 271. The court reasoned that, in the plaintiff’s case, the unredacted SSNs “are integral to her message,” and, in fact, “they are her message” because her “[d]isplaying them proves Virginia’s failure to safeguard private information and powerfully demonstrates why Virginia citizens should be concerned.” Id. (emphasis in original and footnote omitted). Although the plaintiff could have redacted the SSNs, the First Amendment protected the plaintiff’s “freedom to decide how her message should be communicated.” Id. at 271 n.8. The Fourth Circuit therefore concluded that the plaintiff’s speech “plainly concern[ed] a matter of public significance … because displaying the contents of public records and criticizing Virginia’s release of private information convey political messages that concern the public, see Cox Broad. , 420 U.S. at 495, 95 S.Ct. 1029, (‘Public records by their very nature are of interest to those concerned with the administration of government, and a public benefit is performed by the reporting of the true contents of the records by the media.’).” Id. at 276 (citation omitted).

Florida Star , Brayshaw , Sheehan , and Ostergren thus show that highly personal information has public significance when inextricably associated with political speech. That principle applies here. Plaintiffs oppose, among other things, California legislation that requires the creation and maintenance of a database run by the California Department of Justice that compiles the residential address and telephone number of anyone who purchases or transfers firearms ammunition in California. See Cal. Penal Code § 30352(a)(6). Plaintiffs’ means of protesting the legislation is by compiling their own “database” of the legislators’ residential addresses and phone numbers. Like the plaintiff in Ostergren , that information is not just “integral to [ Plaintiffs’] message,” it is their message. 615 F.3d at 271.

At its core, Plaintiffs’ speech is a form of political protest. The Court therefore finds that the legislators’ home address and telephone number touch on matters of public concern in the context of Plaintiffs’ speech. b. § 6254.21(c) is not narrowly tailored

Defendant does not suggest Publius’s speech was a threat or otherwise not protected by the First Amendment.

There is no dispute that Plaintiffs lawfully obtained and truthfully published information that was readily available online. When lawfully obtained, the truthful publication of that information falls within the First Amendment’s ambit. See Florida Star , 491 U.S. at 524, 109 S.Ct. 2603 ; see also Bartnicki , 532 U.S. at 516, 121 S.Ct. 1753 (holding First Amendment protected radio commentator’s playing anonymously and illegally wiretapped recording on air). And as Florida Star , Sheehan , Brayshaw , and Ostergren demonstrate, when an individual’s personal information is relevant to issues of public significance, its truthful dissemination—particularly when already in the public domain and lawfully obtained—triggers exacting First Amendment scrutiny under Supreme Court precedent. See Florida Star , 491 U.S. at 533, 109 S.Ct. 2603. Specifically, if an individual publishes lawfully obtained, “truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need … of the highest order.” Daily Mail , 443 U.S. at 103, 99 S.Ct. 2667. Any law that seeks to meet that need must be narrowly tailored. Florida Star , 491 U.S. at 540–41, 109 S.Ct. 2603.

The Court is not suggesting that the truthful dissemination of an individual’s personal information is always entitled to First Amendment protections under any circumstance, even if it is already in the public domain. See Florida Star, 491 U.S. at 532, 109 S.Ct. 2603 (“Nor need we accept appellant’s invitation to hold broadly that truthful publication may never be punished consistent with the First Amendment. Our cases have carefully eschewed reaching this ultimate question, mindful that the future may bring scenarios which prudence counsels our not resolving anticipatorily.” (collecting cases)). As the Fourth Circuit recognized: “Cox Broadcasting and its progeny avoided deciding the ultimate question of whether truthful publication could ever be prohibited. Each decision resolved this ongoing conflict between privacy and the First Amendment ‘only as it arose in a discrete factual context.’ ” Ostergren, 615 F.3d at 276 (quoting Florida Star, 491 U.S. at 530, 109 S.Ct. 2603 ).

The Court in Florida Star seemingly assumed without deciding that protecting a rape victim’s identity is a state interest “of the highest order,” but held the challenged Florida statute was not narrowly tailored to that interest for three reasons. See Florida Star , 491 U.S. at 538, 541, 109 S.Ct. 2603 ; see also id. at 550, 109 S.Ct. 2603 (White, J., dissenting). First, the state had released the victim’s name, though inadvertently, in a publicly available document. Id. at 538, 109 S.Ct. 2603. The Court found that when “the government has failed to police itself in disseminating information, it is clear … that the imposition of damages against the press for its subsequent publication can hardly be said to be a narrowly tailored means of safeguarding anonymity,” reasoning that the government’s doing so “can only convey to recipients that the government considered dissemination lawful, and indeed expected the recipients to disseminate the information further.” Id. at 538–39, 109 S.Ct. 2603.

Second, the Florida statute imposed a “negligence per se standard” in that it did not permit “case-by-case findings” concerning liability, but instead imposed it “automatically.” Id. at 539, 109 S.Ct. 2603. Liability followed publication regardless of the publisher’s intent, and “regardless of whether the identity of the victim is already known throughout the community; whether the victim has voluntarily called public attention to the offense; or whether the identity of the victim has otherwise become a reasonable subject of public concern-because, perhaps, questions have arisen whether the victim fabricated an assault by a particular person.” Id. The Court therefore concluded the statute imposed an impermissible “categorical prohibition” even when “important First Amendment interests are at stake.” Id.

Third, the Florida statute was facially underinclusive. Id. at 540, 109 S.Ct. 2603. Although it prohibited publication in “instrument[s] of mass communication,” it did not prohibit the same information from being published and distributed through other means. Id. The Court noted that “[a]n individual who maliciously spreads word of the identity of a rape victim is thus not covered [by the statute], despite the fact that the communication of such information to persons who live near, or work with, the victim may have consequences as devastating as the exposure of her name to large numbers of strangers.” Id. For these reasons, the Court held that The Florida Star could not be held liable under § 794.03 because the statute was not narrowly tailored under the facts of the case. Id. at 541, 109 S.Ct. 2603.

In Ostergren , the court assumed without deciding that Virginia’s asserted state interest was “of the highest order” because, even if it were, the statute was not narrowly tailored to that interest in the plaintiff’s case. Id. at 280. The court succinctly reasoned that the statute could not be narrowly tailored to protecting individuals’ privacy when Virginia made the records publicly available online and the plaintiff obtained the records through Virginia’s online records system. Id. at 286. The court noted that, at the very least, Virginia could have redacted the SSNs before making the documents accessible to the public. Id. Accordingly, the Fourth Circuit held that the Virginia statute violated the First Amendment as applied to the plaintiff. Id. at 287.

The courts in Brayshaw and Sheehan likewise found the contested laws were not narrowly tailored without much difficulty. In Brayshaw , the court found that the challenged statute was both overinclusive and underinclusive. 709 F.Supp.2d at 1249. The court reasoned:

It is overinclusive in proscribing speech that is not a true threat. It is underinclusive both in its failure to prohibit dissemination of the same information by other entities to third-parties who do intend to harm or intimidate officers, and in its failure to punish parties who actually wish to harm or intimidate police officers and obtain the officer’s identifying information.

Id. at 1249–50. Further, the court found that “punishing Plaintiff for his dissemination of information which is already publicly available is relatively unlikely to advance the interests claimed by the State.” Id. (citing Florida Star , 491 U.S. at 535, 109 S.Ct. 2603 (“punishing the press for its dissemination of information which is already publicly available is relatively unlikely to advance the interests in the service of which the State seeks to act”)).

The court in Sheehan used largely the same reasoning. See 272 F.Supp.2d at 1145. Additionally, the court observed:

[W]hen the government itself injects personal identifying information into the public domain, it cannot credibly take the contradictory position that one who compiles and communicates that information offends a compelling state interest. Further, defendants can demonstrate no compelling interest because the statute hinges solely on the subjective intent of the speaker. Any third party wishing to actually harm or intimidate these individuals may freely acquire the personal identifying information from myriad public and private sources, including for-profit commercial entities, without entering the scope of the statute.

Id. at 1147 (footnotes omitted).

The Court assumes that the interest underlying § 6254.21(c) —protecting the personal safety of covered officials and their families—is a state interest of the highest order. But the Court need not decide whether it is because the statute is not narrowly tailored to further that interest. The logic of Florida Star , Ostergren , Brayshaw , and Sheehan applies here, and shows that there are a number of reasons why § 6254.21(c) is not narrowly tailored.

First, § 6254.21(c) makes no attempt to prohibit or prevent true threats. Under the statute, a covered official need only subjectively fear for his or her safety (or that of his or her family) due to his or her home address or telephone number being online. § 6254.21(c)(1). To make a compliant request that the information be removed, the official need only send the publisher of the information a “statement describing a threat or fear for the safety of that official or of any person residing at the official’s home address.” Id. If the official does so, the recipient must comply or face a lawsuit. An official can therefore make an effective takedown demand by informing someone who has posted the official’s home address or phone number that doing so has made the official fear for his or her safety. On its face, § 6254.21(c)(1) does not require that the threat be credible or that a third-party review whether the official’s request is well-founded. The statute makes no distinction between those who publish a covered official’s home address or phone number online for wholly lawful reasons and those who do so for wholly unlawful reasons. So long as an official subjectively feels threatened, the official may make a takedown request under § 6254.21(c)(1). And if the publisher fails to comply with an official’s takedown request within 48 hours, then he or she has violated § 6254.21(c)(1), which will entitle the official to bring suit in which attorney’s fees would be awarded automatically to the official. See id. §§ 6254.21(c)(1)(D)(i), 6254.21(c)(2). This lack of case-by-case oversight and effective per se liability suggests that § 6254.21(c) is not narrowly tailored. See Florida Star , 491 U.S. at 539, 109 S.Ct. 2603.

Defendant disputes this characterization of the statute. See Doc. 20 at 25 n.15. Defendant argues that § 6254.21(c)(2)‘s mandatory attorney’s fees and costs award does not impose “automatic liability” for two reasons:

First, of course, no fees are awarded unless the Court has already determined that issuance of an injunction, with the resulting fee award, would not violate the First Amendment. Second, it is well-established that attorney’s fee awards under fee-shifting statutes like section 6254.21(c) are considered “costs,” not “damages,” and are not provided to “punish” the defendant in any way but merely to ensure that the plaintiff will be fully compensated.

Id. (citations omitted). Defendant provides no authority for her first point, and the plain language of the statute contradicts it. On its face, § 6254.21 does not contemplate a First Amendment defense, and no court has found one applicable. (In fact, the Court cannot find any court decision that even mentions the statute.) As the Court interprets the provision, under § 6254.21(c)(2), if a court finds that the defendant has violated § 6254.21(c)(1) —that is, whether the defendant has failed to timely comply with a covered official’s appropriate and effective takedown request—then the court must award the plaintiff-official attorney’s fees and costs, regardless of the whether the court orders injunctive or declaratory relief.

Defendant’s second point is a straw man. Regardless of whether attorney’s fees are “damages,” the imposition of attorney’s fees and costs is a form of liability, particularly in the First Amendment context, where even their mere potential may have a chilling effect on First Amendment rights. See, e.g. , Dean v. Riser , 240 F.3d 505, 510 (5th Cir. 2001) ; Riddle v. Egensperger , 266 F.3d 542, 551 (6th Cir. 2001) ; see also New York Times Co. v. Sullivan , 376 U.S. 254, 279, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (“would-be critics of official conduct may be deterred from voicing their criticism … because of doubt whether it can be proved in court or fear of the expense of having to do so ” (emphasis added)). Defendant does not cite, and the Court cannot find, any authority that suggests First Amendment scrutiny of a content-based statute should be any different simply because attorney’s fees and costs are the only financial relief possible under the statute.

Section § 6254.21(c)(1) is not narrowly tailored for the additional reason that it does not differentiate between acts that “make public” previously private information and those that “make public” information that is already publicly available. There is no dispute that the information Publius compiled and posted, and a member of Hoskins’s forum re-posted, was publicly available and readily accessible online. “[P]unishing [Plaintiffs] for [their] dissemination of information which is already publicly available is relatively unlikely to advance the interests in the service of which the State seeks to act.” Florida Star , 491 U.S. at 535, 109 S.Ct. 2603. When “the government has failed to police itself in disseminating information, it is clear … that the imposition of damages against the press for its subsequent publication can hardly be said to be a narrowly tailored means” to further the state’s interests. Id. at 538, 109 S.Ct. 2603. Because the information Plaintiffs published came from freely available public records, § 6252.21(c)(1) is not narrowly tailored to protecting the safety of covered officials and their families. See id. ; Ostergren , 615 F.3d at 286.

Plaintiffs also point out that the voter registration affidavit of any voter, which includes his or her “home address, telephone number, [and] email number,” Cal. Elec. Code § 625.4, “[s]hall be provided with respect to any voter … to any person for election, scholarly, journalistic, or political purposes.” Cal. Elec. Code § 2194(a)(3). So, even if the legislators’ personal information was not freely available online, Plaintiffs potentially could have obtained it through lawful means.

Third, § 6254.21(c)(1) is underinclusive. See Florida Star , 491 U.S. at 540, 109 S.Ct. 2603 (holding that statute was not narrowly tailored in part because it was underinclusive on its face). A statute is underinclusive when it affects “too little speech,” such that there are “doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint.” Williams–Yulee v. Florida Bar , ––– U.S. ––––, 135 S.Ct. 1656, 1668, 191 L.Ed.2d 570 (2015) (emphasis, quotation marks, and citation omitted). “The Supreme Court has looked skeptically on statutes that exempt certain speech from regulation, where the exempted speech implicates the very same concerns as the regulated speech.” Chaker v. Crogan , 428 F.3d 1215, 1227 (9th Cir. 2005) (citations omitted). In Florida Star , for instance, the challenged statute only prohibited the publication of information identifying a rape victim on “an instrument of mass communication.” 491 U.S. at 540, 109 S.Ct. 2603. That the statute did not prohibit the same information being spread by other means raised “serious doubts” as to whether the statute was serving the interests it purportedly served. Id. at 525, 540, 109 S.Ct. 2603.

Section 6254.21(c)(1) is similarly underinclusive. It proscribes the dissemination of a covered official’s home address and phone number only on the internet, regardless of the extent to which it is available or disseminated elsewhere. That the statute does not prohibit a major newspaper or television channel from publishing the information, but would potentially prohibit an online blog with a limited audience from doing so, raises serious questions about whether it is serving its intended goals. See id. “[A] law cannot be regarded as protecting an interest of the highest order, and thus as justifying a restriction upon truthful speech, when it leaves appreciable damage to that supposedly vital interest unprohibited.” Id. at 541–42, 109 S.Ct. 2603 (Scalia, J., concurring) (citation and quotation marks omitted).

The statute does prohibit the recipient of an official’s takedown demand from “transfer[ring]” the information on “any other medium.” § 6254.21(c)(1)(D)(ii). But there can be no liability under § 6254.21(c)(1) unless an official’s home address or phone number is posted on the internet.

Ironically, a newspaper could face no liability under § 6254.21(c)(1) for publishing in print the same information that it posts online.

The Court therefore concludes § 6254.21(c)(1) is not narrowly tailored to serve its underlying interests. In addition, because the statute is content-based, Defendant had to show that it is “the least restrictive means to further a compelling interest.” Foti v. City of Menlo Park , 146 F.3d 629, 637 (1998) (citation omitted). Defendant has failed to do so. In fact, Defendant made no attempt to explain how § 6254.21 is the least restrictive means to further the statute’s goal of protecting covered officials. As noted above, the statute could be less restrictive in that it could proscribe only true threats, or it could require a neutral third-party to determine if the official’s fear is objectively sound, or it could permit an objective case-by-case determination for liability instead of permitting a covered official to trigger its protections due to the official’s subjective concerns. In summary, the Court finds that Plaintiffs are likely to succeed on their claim that § 6254.21(c)(1) is unconstitutional as applied to them.

D. Hoskins’s Commerce Clause challenge

Under the canon of constitutional avoidance, a court should avoid deciding unnecessary constitutional issues. See Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 56 S.Ct. 466, 80 L.Ed. 688 (1936). The doctrine generally applies only when “there is a viable alternate, nonconstitutional ground to reach the same result.” Ariz Dream Act Coal. v. Brewer, 855 F.3d 957, 962–63, 2017 WL 461503, at *6 (9th Cir. Feb. 2, 2017) (citations omitted). But when a plaintiff challenges a law on multiple constitutional grounds, courts have discretion to decide which ground (or grounds) on which to decide the case. Compare Am. Booksellers Found. v . Dean, 342 F.3d 96, 102–03 (2d Cir. 2003) (finding federal statute unconstitutional under First Amendment and dormant Commerce Clause), PSINet, Inc. v. Chapman, 362 F.3d 227 (4th Cir. 2004) (same) with Old Coach Dev. Corp., Inc. v. Tanzman, 881 F.2d 1227, 1231 n.2 (3d Cir. 1989) (declining to address whether challenged statute violated the First Amendment after finding that it violated the dormant Commerce Clause). And because the Court concludes Hoskins’s § 230 challenge is unlikely to succeed, the Court may address his constitutional claims.

Plaintiffs contend that § 6254.21(c) violates the dormant Commerce Clause as applied to Hoskins and out-of-state actors because the statute restricts speech that occurs wholly outside California’s borders. Doc. 19–1 at 23 (citing Healy v. Beer Inst. , 491 U.S. 324, 336, 109 S.Ct. 2491, 105 L.Ed.2d 275 (1989) ) (“The ‘Commerce Clause … precludes the application of state statutes to commerce that takes place wholly outside of the State’s borders, whether or not the commerce has effects within the State”).

It appears Plaintiffs’ Commerce Clause claim is an as-applied challenge brought by Hoskins only. See FAC at 17 ¶ 2 (“Plaintiff Hoskins respectfully requests that this Court enter a declaratory judgment stating that applying California Government Code section 6254.21(c) to Hoskins’ out-of-state speech violates the Commerce Clause.”); see also id. at ¶ 45 (“The application of Section 6254.21(c) to out-of-state actors like Hoskins violates the so-called dormant Commerce Clause”), ¶ 53 (“Defendant, acting under color of state law, has applied California Government Code section 6254.21(c) in violation of the Commerce Clause, U.S. Const. art. I, § 8, cl. 3, thus in turn violating 42 U.S.C. § 1983.”). To the extent Hoskins brings both a facial and as-applied dormant Commerce Clause challenge, the Court need only address his as-applied challenge.

Defendant counters that the extraterritoriality doctrine articulated in Healy does not apply to § 6254.21(c) because the statute does not control prices. Doc. 20 at 26. Defendant argues that, even if the doctrine applies, “[§] 6254.21(c) does not significantly burden interstate commerce.” Id. at 27. Specifically, Defendant asserts that the statute does not project any regulatory regimes or affirmative obligations onto Hoskins, but rather “authorizes California public officials to request to have certain specifically identified sensitive personal information removed from a particular post.” Id. Although Defendant acknowledges that § 6254.21(c) requires Hoskins to remove the information specific in the Office’s takedown request or face the possibility of a suit for injunctive and declaratory relief, Defendant argues that § 6254.21(c) does not impose any substantial burden on Hoskins. Id. Defendant also contends there is no evidence that § 6254.21(c) conflicts with or is incompatible with New Hampshire or any other State’s laws. Id.

“[A]s both the means to engage in commerce and the method by which transactions occur, ‘the Internet is an instrumentality and channel of interstate commerce,’ ” United States v. Sutcliffe , 505 F.3d 944, 953 (9th Cir. 2007) (quoting United States v. Trotter , 478 F.3d 918, 921 (8th Cir. 2007) (per curiam)). Thus, “regulation of the Internet impels traditional Commerce Clause considerations.” American Libraries Ass’n v. Pataki , 969 F.Supp. 160, 173 (S.D.N.Y. 1997).

“The Commerce Clause of the United States Constitution assigns to Congress the authority ‘[t]o regulate Commerce with foreign Nations, and among the several States.’ ” Sam Francis Foundation v. Christies, Inc. , 784 F.3d 1320, 1323 (9th Cir. 2015) (quoting U.S. Const. art. I, § 8, cl. 3 ). “Generally speaking, the Commerce Clause protects against inconsistent legislation arising from the projection of one state regulatory regime into the jurisdiction of another State.” Healy , 491 U.S. at 336, 109 S.Ct. 2491.

“Courts have long read a negative implication into the clause, termed the ‘dormant Commerce Clause,’ that prohibits states from discriminating against interstate commerce.” Yakima Valley Mem’l Hosp. v. Wash. State Dep’t of Health , 731 F.3d 843, 846 (9th Cir. 2013). The doctrine “bars state regulations that unduly burden interstate commerce.” Quill Corp. v. North Dakota , 504 U.S. 298, 312, 112 S.Ct. 1904, 119 L.Ed.2d 91 (1992) (citation omitted). “[A] statute violates the dormant Commerce Clause per se when it directly regulates interstate commerce.” Pharm. Research and Mfrs. of America v. Cty. of Alameda , 768 F.3d 1037, 1043 (9th Cir. 2014) (quoting Assoc. des Eleveurs de Canards et d’Oies du Quebec v. Harris , 729 F.3d 937, 949 (9th Cir. 2013) ) (internal quotation marks omitted). “Direct regulation occurs when a state law directly affects transactions that take place across state lines or entirely outside of the state’s borders.” Id. (quoting S.D. Myers, Inc. v. City and Cty. of S.F. , 253 F.3d 461, 467 (9th Cir. 2001) ) (internal quotation marks omitted).Under the extraterritoriality doctrine, any “statute that directly controls commerce occurring wholly outside the boundaries of a State exceeds the inherent limits of the enacting State’s authority and is invalid regardless of whether the statute’s extraterritorial reach was intended by the legislature,” Rocky Mountain Farmers Union v. Corey , 730 F.3d 1070, 1101 (9th Cir. 2013) (” RMFU “) (quoting Healy v. Beer Inst. , 491 U.S. 324, 336, 109 S.Ct. 2491, 105 L.Ed.2d 275 (1989) ), and regardless of “whether or not the commerce has effects within the State.” Healy , 491 U.S. at 336, 109 S.Ct. 2491. To determine whether state legislation violates the dormant Commerce Clause, “[t]he critical inquiry is whether the practical effect of the [legislation] is to control conduct beyond the boundaries of the State.” Id.

“Although the Ninth Circuit has not reached this issue, courts in several circuits have invalidated state laws regulating the internet” where the statute regulates conduct occurring outside the borders of the state. Nat’l Fed’n of the Blind v. Target Corp. , 452 F.Supp.2d 946, 958 (N.D. Cal. 2006) (collecting cases). In contrast, courts have upheld state regulation of the internet where application of the law has been limited to only local conduct, or where “[a] state would enforce the law only against conduct occurring within the state.” Id. (collecting cases); see also Greater Los Angeles Agency on Deafness, Inc. v. Cable News Network, Inc. , 742 F.3d 414, 432–33 (9th Cir. 2014) (” Agency on Deafness “) (holding that California statute that required captioning of online videos for California viewers did not regulate out-of-state conduct because CNN could create a separate website specific to California users).

Defendant claims that the extraterritoriality doctrine articulated in Healy is inapplicable to this case because Healy has been limited to its facts, namely, “price control or price affirmation statutes that involve tying the price of … in-state products to out-of-state prices.” Doc. 20 at 26. For support, Defendant cites to Pharmaceutical Research and Mfrs. of America v. Walsh , 538 U.S. 644, 669, 123 S.Ct. 1855, 155 L.Ed.2d 889 (2003), Harris , 729 F.3d at 951, and RMFU , 730 F.3d at 1101.

These cases do not support Defendant’s position. Walsh , Harris , and RMFU all concerned state laws that regulated in-state conduct which were found not to directly regulate extraterritorial behavior, and thus, Healy was inapplicable. See Walsh , 538 U.S. at 669, 123 S.Ct. 1855 (“the Maine Act does not regulate the price of any out-of-state transaction, either by its express terms or by its inevitable effect”); Harris , 729 F.3d at 951 (“Section 25982 applies to both California entities and out-of-state entities and precludes sales within California of products produced by force feeding birds regardless of where the force feeding occurred.”) ; RMFU , 730 F.3d at 1104 (“[California] does not control the production or sale of ethanol wholly outside California.”). As the Ninth Circuit observed in RMFU ,”[c]ourts have extended the [extraterritoriality] rule from Healy and Brown–Forman to cases where the ‘price’ floor being imposed on another jurisdiction was not monetary but rather a minimum standard of environmental protection.” 730 F.3d at 1102.

The court in Harris analyzed the statute at issue for whether it was directed wholly at extraterritorial activity. 729 F.3d at 949. While the court did not explicitly mention Healy during its analysis, it applied the extraterritoriality doctrine to determine that the statute was not directed solely at out-of-state producers. Id. To the extent Defendant relies on the court’s statement that “Healy and Baldwin are not applicable to a statute that does not dictate the price of a product” for support that the extraterritoriality doctrine is limited to price-fixing statutes, the court’s own application of the extraterritoriality doctrine in that case to a statute that does not dictate the price of a product undermines Defendant’s argument. Id. at 951. Furthermore, subsequent decisions apply Healy and the extraterritoriality doctrine to non-price-fixing statutes. See, e.g., Sam Francis Found., 784 F.3d at 1323–24.

Sam Francis Foundation , 784 F.3d at 1323–24, and Agency on Deafness , 742 F.3d at 432–33, a case Defendant cites (albeit for a different proposition), make clear that extraterritoriality doctrine applies beyond statutes that regulate out-of-state prices. Sam Francis Foundation involved a challenge to California’s Resale Royalty Act, which required “the payment of royalties to the artist after a sale of fine art whenever ‘the seller resides in California or the sale takes place in California.’ ” 784 F.3d at 1323 (emphasis in original). The plaintiff challenged the statute as violating the dormant Commerce Clause because it regulated sales that took place outside California. Id. The Ninth Circuit “easily conclude[d]” that the royalty requirement violated the dormant Commerce Clause because it mandated that royalties be paid for sales that had no connection to California. Id.

Agency on Deafness involved the California Disabled Person Act (“DPA”), a law having nothing to do with prices or sales of any kind. 742 F.3d at 419. The plaintiffs in that case argued that the defendant’s failure to provide closed captioning for its online videos for California viewers violated the DPA, which mandated the captioning. Id. The defendant argued the DPA violated the dormant Commerce Clause because it attempted to regulate conduct wholly outside of California. Id. at 433. The Ninth Circuit rejected the argument, holding instead that the DPA did not have the practical effect of regulating conduct outside of California because the defendant could enable close captioning for California residents only, thereby limiting the statute’s effect to California’s borders. Id. Although the court found that the DPA did not violate the dormant Commerce Clause, there is no indication that the plaintiffs’ challenge under that provision was improper.

The California Disabled Person Act assures that “[i]ndividuals with disabilities or medical conditions have the same rights as the general public to the full and free use” of public places and areas open to the public. Cal. Civ. Code §§ 54(a) –(b).

Accordingly, the Court finds that Defendant’s contention that the extraterritoriality doctrine is limited to price control or price affirmation statutes is without merit. The Court now turns to analyze § 6254.21(c) for its extraterritorial effects as applied to Hoskins and out-of-state actors. “Because the internet does not recognize geographic boundaries, it is difficult, if not impossible, for a state to regulate internet activities without project[ing] its legislation into other States.” Am. Booksellers Found. v. Dean , 342 F.3d 96, 103 (2d Cir. 2003) (internal quotation marks omitted). For example, if “[a] person outside [California] posts information on a website or on an electronic discussion group … for the intended benefit of other people [outside California], that person must assume that someone from [California] may also view the material.” Id. As a result, posters outside of California must comply with § 6254.21(c) or risk subsequent litigation and attorney’s fees. California therefore has projected § 6254.21(c)“onto the rest of the nation.” Id.

Defendant’s alternative argument that § 6254.21(c) does not significantly burden interstate commerce ignores that § 6254.21(c) as applied to out-of-state actors, such as Hoskins, directly regulates wholly out-of-state conduct. Section 6254.21(c) requires the recipient of a demand letter—anywhere in the country—sent by an elected official to remove the “official’s home address or telephone number from public display on the internet,” and to “continue to ensure that this information is not reposted on … any … Internet Web site maintained by the recipient of the written demand.” Cal. Gov. Code. § 6254.21(c)(1)(D)(i). It also prohibits the demand recipient from “transfer[ring] the appointed or elected official’s home address or telephone number to any other person, business, or association through any other medium.” Cal. Gov. Code. § 6254.21(c)(1)(D)(ii) (emphasis added). The statute does not limit its application to California, nor does it require that websites displaying officials’ home address or telephone numbers bar California only internet users’ access. See Agency on Deafness , 742 F.3d at 432–33 (rejecting dormant Commerce Clause challenge to statute requiring website to provide captioning for California residents who access its online videos because captioning could be limited to only California residents).

Rather, § 6254.21(c) requires Hoskins, a Massachusetts resident, to remove a post from his online forum, FAC ¶ 45, and mandates that he “continue to ensure that [the legislators’ contact information] is not reported on the forum or any other website maintained by him,” Doc. 19–1 at 23 (internal quotation marks omitted), even if the only people accessing the forum are New Hampshire residents (or citizens of states other than California). Section § 6254.21(c) also prohibits Hoskins from transferring the specified information to any other entity, “through any medium,” even if Hoskins and the recipient have no connection to California or the transfer “takes place wholly outside of the State’s borders.” Healy , 491 U.S. at 336, 109 S.Ct. 2491. Thus, California has projected § 6254.21(c)“onto the rest of the nation.” Dean , 342 F.3d at 103. The Court therefore concludes that Hoskins is likely to succeed on his claim that § 6254.21(c), as applied to out-of-state actors like Hoskins, violates the dormant Commerce Clause. See Sam Francis Found. , 784 F.3d at 1324 (holding that statute “regulating out-of-state art sales where ‘the seller resides in California,’ … and no other connection to California need exist, violates the dormant Commerce Clause as an impermissible regulation of wholly out-of-state conduct.”); see also Dean , 342 F.3d at 103 (holding that Vermont statute that directly regulated speech on the internet outside of Vermont was a “per se violation of the dormant Commerce Clause”).

E. Hoskins’s § 230 challenge

Under § 230(c)(1)“[n]o provider … of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Under § 230(e), “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” Section 230 therefore “precludes liability that treats a website as the publisher or speaker of information users provide on the website. In general, this section protects websites from liability for material posted on the website by someone else.” Doe v. Internet Brands, Inc. , 824 F.3d 846, 850 (9th Cir. 2016). More specifically, § 230 immunity applies when “(1) the defendant [is] a provider or user of an interactive computer service; (2) the cause of action treat[s] the defendant as a publisher or speaker of information; and (3) the information at issue [is] provided by another information content provider.” Hassell v. Bird , 247 Cal.App.4th 1336, 1362, 203 Cal.Rptr.3d 203 (2016) (citation and quotation marks omitted).Hoskins claims that, as owner and operator of Northeastshooters.com, he is a “provider of an interactive computer service” under § 230(c)(1), who is entitled to immunity from any liability for the content created on the website by third parties. Doc. 19–1 at 24 (citing § 230(c) ). He argues that the Office’s takedown request “treat[s] [him] as the publisher or speaker of third-party content in violation of § 230.” Doc. 19–1 at 24 (internal quotation marks omitted). Hoskins further asserts § 6254.21(c) is inconsistent with § 230(e), which provides that “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” See FAC at ¶ 56. Hoskins therefore requests “a declaratory judgment stating that the Defendant has violated his rights under Section 230.” Id. at 17 ¶ 3.

The Court notes that this is a particularly narrow request and, accordingly, the Court limits its analysis to its confines.

Defendant takes no position on whether Hoskins qualifies as “a provider of an interactive computer service” or whether he is entitled to immunity under § 230(c). See Doc. 20 at 28. Instead, Defendant argues that § 6254.21(c) is entirely consistent with § 230(c) in that both preclude Hoskins from facing any liability because “subdivision (e) of section 6254.21… provides Hoskins with the same immunity from liability, using the exact same definition of interactive computer service, as does 47 U.S.C. § 230.” Id.

Section 6254.21(e) provides in full:

(e) An interactive computer service or access software provider, as defined in Section 230(f) of Title 47 of the United States Code, shall not be liable under this section unless the service or provider intends to abet or cause imminent great bodily harm that is likely to occur or threatens to cause imminent great bodily harm to an elected or appointed official.

Hoskins’s claim is premised on the assumption that the Office’s takedown request violates his § 230 immunity. Although the Office’s takedown demand may have erroneously assumed Hoskins qualified as a “publisher” or “speaker” of the speech at issue here (headednorth’s re-posting the legislators’ personal information)—an issue the Court need not and does not decide—the demand did not violate his purported immunity under § 230.

Neither party addresses whether Hoskins has standing to assert his § 230 claim. The Court notes, however, that the Office’s threat to bring suit under § 6254.21(c) is sufficient to confer Hoskins with standing to bring the claim. See MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 118–19, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007).

To the extent Plaintiffs assert § 6254.21(c)‘s mandatory attorney’s fees provision violates § 230, that issue is not properly before the Court. As explained in detail above, attorney’s fees are not available under § 6254.21(c) unless and until (1) the plaintiff brings a lawsuit in state court for declaratory and/or injunctive relief and (2) the court finds that the defendant violated § 6254.21(c)(1). If the defendant asserts it is entitled to § 230 immunity as an “interactive computer service provider or access software provider,” the court would have to determine (1) whether that is correct; and, if so, (2) whether imposing attorney’s fees would amount to “liability” in violation of § 230 immunity; and, if so, (3) whether § 6254.21(e) precludes a fee award. Those issues are not ripe for the court’s review.

Though not on all fours with the facts of this case, Google, Inc. v. Hood , 822 F.3d 212, 225–26 (5th Cir. 2016), guides the Court’s analysis here as the only analogous case the Court can find. Hood involved Google’s declaratory judgment challenge to a state attorney general’s administrative subpoena that “sought information on Google’s platforms, advertising practices, and knowledge of and efforts to police ‘dangerous’ or ‘illegal’ content.” Id. at 218. The subpoena stated that if Google refused to comply, the attorney general ” ‘may apply to’ a state court ‘for an order compelling compliance.’ ” Id.

Before responding to the subpoena or seeking relief in state court, Google filed a declaratory judgment case in federal court. Id. at 219. Google alleged, among other things, that the attorney general’s investigation violated its § 230 immunity, and that any further proceedings to enforce the subpoena would likewise violate that immunity. Id. at 219–20. The attorney general moved to dismiss the case on numerous grounds, including that Google’s claims were not ripe for adjudication. See Google, Inc. v. Hood , 96 F.Supp.3d 584, 592 (S.D. Miss. 2015), rev’d , 822 F.3d 212. The district court disagreed, and found that the claims were ripe because “Google is not required to expose itself to civil or criminal liability before bringing a declaratory action to establish its rights under federal law, particularly where the exercise of those rights have been threatened or violated.” Id. at 594 (citing MedImmune , 549 U.S. at 128–29, 127 S.Ct. 764 ).

The Fifth Circuit reversed, holding that the “administrative subpoena was not ripe for adjudication.” Hood , 822 F.3d at 224. The court so held because (1) the subpoena was “non-self-executing,” meaning that Google could not be sanctioned for not complying with it; (2) the attorney general could, but did not file a state court action to enforce Google’s compliance; and (3) if the attorney general did file such a suit, Google could raise its claimed § 230 immunity as a defense. See id. at 224–26 ; see also id. at 227 n.12 (“[W]e do not suggest that section 230 of the CDA would not apply if Hood were to eventually bring an enforcement action, or cannot be applied at the motion-to-dismiss stage.”). For these reasons, the Fifth Circuit held that Google’s “pre-enforcement challenge” was unripe. Id. at 226.

This is consistent with the Court’s understanding that § 230 immunity is an affirmative defense. See Zeran v. America Online, Inc. , 129 F.3d 327, 330 (4th Cir. 1997) ; Doe v. GTE Corp. , 347 F.3d 655, 657 (7th Cir. 2003) ; Barnes , 570 F.3d at 1109. As the Ninth Circuit explained, § 230(c)(1)“only protects from liability (1) a provider or user of an interactive computer service (2) whom a plaintiff seeks to treat, under a … cause of action , as a publisher or speaker (3) of information provided by another information content provider.” Barnes v. Yahoo!, Inc. , 570 F.3d 1096, 1100–01 (9th Cir. 2009) (emphasis added); see also Fed. Trade Comm’n v. Lead C lick Media, LLC , 838 F.3d 158, 173 (2d Cir. 2016) (observing that courts have interpreted § 230 to provide immunity from “claims”). Section 230(c)(1) therefore “protects certain internet-based actors from certain kinds of lawsuits. ” Barnes , 570 F.3d at 1099 (emphasis added)); Zeran v. America Online, Inc. , 129 F.3d 327, 330 (4th Cir. 1997) (holding “lawsuits seeking to hold a service provider liable [for third party content] … are barred” under § 230(c)(1) ).

As § 6254.21(c) and the demand letter make clear, the only liability Hoskins faced was a potential lawsuit and attorney’s fees and costs if he failed to comply with the Office’s request. Despite extensive research, the Court cannot find any authority that suggests the Office’s letter even triggers Hoskins’s purported § 230 immunity, much less violates it, as the letter is not a “cause of action,” and did not impose any kind of “liability” on Hoskins—even if he ignored it. See Barnes , 570 F.3d at 1099 ; Hassell , 247 Cal.App.4th at 1363, 203 Cal.Rptr.3d 203 (“The [court’s] removal order does not violate section 230 because it does not impose any liability on Yelp.”). Assuming that Hoskins is entitled to § 230 immunity, Hoskins does not cite, and the Court cannot find, any case holding that the mere threat of a lawsuit that ostensibly would violate his § 230(c) immunity constitutes a violation of § 230 itself. Likewise, the Court is unaware of any authority that suggests the Court has jurisdiction over a declaratory judgment claim that a threatened lawsuit would violate § 230. Hood , the only case with similar circumstances the Court can locate, suggests otherwise. Accordingly, the Court finds that Hoskins’s claim that Defendant “violated Hoskins’ rights under Section 230,” FAC at ¶ 55, is not ripe for review. Hoskins is therefore not likely to succeed on the merits of his § 230 claim.

Because of this conclusion, the Court need not address Hoskins’s alternative argument that § 6254.21(e) is inconsistent with § 230 because the former excludes immunity for interactive computer service providers, as defined in § 230(f), if the “provider intends to abet or cause imminent great bodily harm that is likely to occur or threatens to cause imminent great bodily harm to an elected or appointed official.” First, Hoskins made this argument for the first time in reply. Doc. 22 at 11; Ass’n of Irritated Residents v. C & R Vanderham Dairy, 435 F.Supp.2d 1078, 1089 (E.D. Cal. 2006) (“It is inappropriate to consider arguments raised for the first time in a reply brief.”). Second, it is questionable whether Hoskins can challenge that aspect of § 6254.21(e), which is wholly inapplicable to this case.

F. Remaining preliminary injunction factors

As outlined above, the Court finds that Plaintiffs are likely to succeed on the merits of their challenges to § 6254.21(c) under the First Amendment and the Commerce Clause. “Both [the Ninth Circuit] and the Supreme Court have repeatedly held that ‘[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’ ” Klein v. City of San Clemente , 584 F.3d 1196, 1207–08 (9th Cir. 2009) (quoting Elrod v. Burns , 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) ). “The harm is particularly irreparable where, as here, [Plaintiffs] seek[ ] to engage in political speech.” Id. Plaintiffs have “therefore demonstrated a likelihood of irreparable injury in the absence of an injunction.” Id.

Plaintiffs have also demonstrated that an injunction is in the public interest, and that the equities tip in their favor. The Ninth Circuit has broadly held that “it is always in the public interest to prevent the violation of a party’s constitutional rights.” Melendres v. Arpaio , 695 F.3d 990, 1002 (9th Cir. 2012) ; see also Gordon v. Holder , 721 F.3d 638, 653 (D.C. Cir. 2013) (“the [district] court acknowledged the obvious [when issuing an injunction]: enforcement of an unconstitutional law is always contrary to the public interest” (collecting cases)). Further, any “ongoing enforcement of the potentially unconstitutional regulations … would infringe not only the free of expression interests of [Plaintiffs], but also the interests of other people” subjected to § 6254.21(c). Klein , 584 F.3d at 1208 (quoting Sammartano v. First Jud. Dist. Ct. , 303 F.3d 959, 974 (9th Cir. 2002) ). “The balance of equities and the public interest thus tip sharply in favor of enjoining the [statute].” Id. ; see also id. (noting that Ninth Circuit “caselaw clearly favors granting preliminary injunctions to a plaintiff … who is likely to succeed on the merits of his First Amendment claim”). Accordingly, the Court finds that a preliminary injunction restraining and enjoining the Office from enforcing § 6254.21(c) against Plaintiffs is proper. V. CONCLUSION AND ORDER

Because the Court only addressed Plaintiffs’ as-applied challenge and because Plaintiffs ask only for an order directing the Office not to enforce § 6254.21(c) against them, see Doc. 19–1 at 26, the Court limits the preliminary injunction to preclude enforcement of § 6254.21(c) against Plaintiffs only.
——–

For the foregoing reasons, the Court finds that Plaintiffs are likely to succeed on their claims that § 6254.21(c) violates the First Amendment as applied to them, and also violates the dormant Commerce Clause as applied to Hoskins. The Court further finds that the remaining preliminary injunction factors weigh in Plaintiffs’ favor. The Court therefore preliminarily RESTRAINS AND ENJOINS Defendant from applying or enforcing § 6254.21(c) against Plaintiffs.

Under Federal Rule of Civil Procedure 65(c), the Court “may issue a preliminary injunction … only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to be wrongfully enjoined or restrained.” Plaintiffs request that the Court set a nominal bond of $1.00. Doc. 19–5 at 2. Defendant offers no opinion on the matter, and has not indicated it will suffer any financial loss as a result of the injunction. Accordingly, Plaintiffs shall post a nominal bond of $1.00 before the preliminary injunction will issue.

On or before March 10, 2017, the parties shall file a joint status report informing the Court how they wish to proceed.

IT IS SO ORDERED.

cited https://casetext.com/case/publius-v-boyer-vine

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Jurisdiction – Judge’s Qualified Immunity – Judicial Ethics for Pro Se Litigants

The Truth News — Sun, 17 Jul 2022 08:45:56 +0000

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:

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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.

“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

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.”

– 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.

“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.

“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!

“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.

“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.

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

“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.”

“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

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 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)]

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

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

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

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.

“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

– 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.

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

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

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

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

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.

Supreme Court Archives - Good Shepherd News - Fastest Growing Religious, Free Speech & Political Content

Epic SCOTUS Decisions

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

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

Pro$ecutor‘$ Duty to the citizen

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

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

Other Pro$ecutor Caselaw:

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

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

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

Malicious Prosecution / Prosecutorial Misconduct – Know What it is!

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

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

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

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

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

Spencer v. Peters

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

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

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

Excerpts taken from SCOTUS around Robin v. Hardaway

FRAUD$ BY GOVERNMENT

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

FLYER & NEWS WEBSITE LAW

Flyers US constitutional rights, Freedom of Speech & Press

U.S. Supreme Court

But the D.C. Circuit (1989) expressly held that the First Amendment prevented the statute from applying to “public or political discourse,” such as condemnation of political officials (even left expressly for that official).

Vermont’s Top Court Weighs: Are KKK Fliers 1st Amendment Protected Speech? see also Vermont v. Schenk 2015

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

To Wit:

Under the US Constitution.

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

The People are the Sovereign!

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

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

Call Recording In California

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

“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

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 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)]

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

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:

Jurisdiction challenged to all, at any and all times

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

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

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

Pro Se Case Law

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

California Constitution Article VI – Judicial Section 13.

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)

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

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

$$ Retaliatory Arrests and Prosecution $$

Anti-SLAPP Law in California

Freedom of Assembly – Peaceful Assembly – 1st Amendment Right

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

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

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

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

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

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

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

Can You Annoy the Government? – 1st Amendment

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

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

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

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

Paglia & Associates Construction v. Hamilton – Public Internet Posts & Public Criticisms – Bad Reviews – 1st Amendment

CITIZENS UNITED v. FEDERAL ELECTION COMMISSION – 1st Amendment

American Civil Liberties Union of Illinois v. Alvarez – 1st Amendment

Illinois Supreme Court Strikes Down Eavesdropping Statute as Unconstitutional – 1st Amendment

303 Creative LLC v. Elenis – 1st Amendment

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

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

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

But the D.C. Circuit (1989) expressly held that the First Amendment prevented the statute from applying to “public or political discourse,”
such as condemnation of political officials (even left expressly for that official).

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

California Constitution
Article VI – Judicial
Section 13.

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

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

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

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