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PERRIN LOVETT

~ Deo Vindice

PERRIN LOVETT

Tag Archives: Courts

Money Vultures Panic in Georgia

01 Thursday Oct 2015

Posted by perrinlovett in Legal/Political Columns, News and Notes

≈ 2 Comments

Tags

banks, banksters, Constitution, Courts, debt, due process, Fair Debt Collection Practices Act, federal court, Federal Reserve, fiat money, Fourth Amendment, garnishment, General Assembly, Georgia, Jesus, law, Marvin Shoob, money, money-lenders, panic, The People, the poor

Happy October the first!  I cover a lot of legal issues here.  Many of them are bad – like the New Jersey Supreme Court’s recent ruling that the police no longer need a warrant to search your vehicle.  Fourth Amendment be damned.

However, I am so happy to report good news!  For the economically disadvantaged among us (many and growing) and those in danger of joining them (most of the rest) the news doesn’t get much better than this:

Last month a Federal Judge struck down Georgia’s debt collection garnishment law as Unconstitutional!  See also: here and here.

The Judge was Marvin Shoob, whom I know from experience to be a class act and one of the fairest jurists around.

Tuesday’s ruling by U.S. District Senior Judge Marvin Shoob said the statute violated constitutional guarantees of due process by not giving debtors enough notice about the sorts of funds that are exempt from garnishment and how to claim those exemptions. He said the statute also didn’t provide a procedure to adjudicate exemption claims quickly enough.

Although the ruling rests on protecting the rights of individual consumers whose funds may be protected from creditors, it could affect all sorts of garnishments, including those that arise from business disputes and child support orders. Lawyers are debating whether simple changes in forms and procedures can allow garnishments to proceed prior to any legislative fix or further court ruling.

“People are panicking,” said Harriet Isenberg, who co-chairs the creditors’ rights section of the State Bar of Georgia.

Alyson Palmer, Collections-Lawyers-Scramble-After-Garnishment-Law-Is-Struck, Fulton County Daily Report, September 10, 2015.  

Good.  Let them panic.  They deserve it for a change as do their money-changing masters.

The subject case stemmed from a judgment collection action by a major credit card company against a poor man in Gwinnett County.  I know these cases well. When I was a law clerk I reviewed hundreds of them – each the same.  The banks file suit with no evidence whatsoever that any debt is owed and in 90% of their cases they win a default judgment.

It’s a terrible shame.  They don’t have any proof.  One or two Request for Admission questions and these cases would be dismissed.  The poor don’t know. The banks (and the State) don’t care.

Once the bank has a default judgment they file a wage or bank garnishment in an attempt to recover some of their (proof-less) monies.  As Judge Shoob points out the garnishment procedure is as crooked as the rest of the process.

As an aside, even if these banks could prove they had loaned money in the first place, I still wouldn’t feel bad for them losing it.  It never really existed, being a product of the Federal Reserve’s illegal funny money ponzi scheme.  More on that another time.

For now the banksters and their vulture collection agents will have to comply with the law.  Otherwise, “using a statute that has been declared unconstitutional to seek collection of consumer debt arguably would violate the federal Fair Debt Collection Practices Act.”  Daily Report, supra. That means the bank would end up owing and facing stiff penalties.  Ha!

Banks and other large companies run the State of Georgia.  They will have this ruling nullified somewhere and soon.  There’s even talk of a special session of the ordinarily do-nothing General Assembly in order to bring the law into compliance with the Constitution.  Imagine that.

For now the banksters are feeling the panic their ancient predecessors felt when a certain Street Preacher ran them out of the Temple.  The rest of us are feeling a little relief.  Thank you Judge Shoob.

Guilty: Students, Professors, and the Public Get Schooled by Big Brother

16 Wednesday Sep 2015

Posted by perrinlovett in Legal/Political Columns

≈ 1 Comment

Tags

America, Amerika, anarchy, bombs, Courts, crime, double jeopardy, drugs, due process, evidence, evil, freedom, government, injustice, Islam, justice, Justice Department, law, police, police state, prisons, probable cause, rights, schools, Sir. William Blackstone, State, statism, students, teachers, Temple University, terrorists, The People

Several years ago, when I was actively practicing law, I held a discussion with a class of highly motivated and intelligent high school students (mostly upperclassmen).  My subject matter was the economic and cultural chaos wrought by the modern police state.  To my joy the students, nearly every one of them, were not only aware of the issues I covered but were deeply concerned about the world they would soon enter as adults.  Many embraced good old-fashioned anarchy as a positive response to the daily deluge of state-imposed evil.

Another thing which struck me, and which I mentioned to the young people, was how much their public, government high school resembled a prison – both in physical appearance and in operation.  Of this too they were all to aware.

It was a nice, new, modern facility in one of the trendiest parts of town.  It was where the money went when they didn’t want the private school bills.  The halls were clean, the grounds attractive, the people were pleasant.  However, I noticed things which seemed better suited for a correctional facility than a place of education.

Back then I regularly traveled around to various prisons and jails.  Most have a familiar layout and feel.  So too did this shiny new hall of academia.  The building was made of interlaced concrete blocks, bare of ornamentation – like a prison. The rectangular halls, with classrooms on either side, were laid out in wings or pods, fanning from a central hub – like a prison.  The central hub housed the administrative office in what looked like a tall glass control tower – like a prison. Near the doors were metal detectors (not in use that day) – like a prison.  The building was patrolled by armed officers – like a prison.

I had met some of these officers, all certified in law enforcement, before in professional settings.  I tried several cases stemming from “criminal” school misconduct.  The cases usually involved drugs, alcohol, cigarettes or other earth-destroying calamities.  Every single one of them was also devoid or things like probable cause, evidence, due process, and common sense.  I beat every single case.  And, it took quite the beating to win them.

Another ancient legal protection absent from modern Amerika, especially concerning students, is the prohibition against double jeopardy.  The theory, best summarized by Sir William Blackstone in the late eighteenth century was the “universal maxim of the common law of England, that no man is to be brought into jeopardy of his life more than once for the same offence.” (Emphasis mine.)  This theory is but legend now.  Our children often face triple jeopardy over things that are not crimes in the first place.  Here’s a real world example (possibly a combination of different cases, all real):

Johnny saw the school psychologist who suggested Johnny be prescribed mind-altering psychotropic drugs for his nonexistent attention deficit (in reality Johnny was just a boy).  Johnny’s doctor prescribed the narcotics, which otherwise would be considered illegal under state and federal law.  Johnny became semi-addicted.  The drugs caused his brain to slow down.  While giving him the appearance of being calm and receptive the dope also seriously impaired his health, to include his judgment. Johnny became a zombie.

Now, under the influence of these otherwise illegal drugs, practically mandated by his school, Johnny ran afoul of the school’s idiotic policy on otherwise illegal drugs.  School regulations dictate that any and all medications prescribed to a student must be held for the student’s use in the keeping of the school nurse. Johnny so kept his medicine in the school’s care and keeping.  Remember, the drugs in question diminished Johnny’s ability to rationalize and act appropriately.

One day, under the influence of these dangerous narcotics, Johnny forgot to drop off a few of his pills with the nurse.  He kept them in his book bag.  Mind you that Johnny never had any troubles whatsoever with his teachers, his classmates, or anyone else.

Out of the blue, without warning, probable cause, or a warrant, along came the local Sheriff’s department and their trusty drug-sniffing dog.  My students told me periodic drug sweeps were common in the prison…er..school.  The dog did his unlawful job well and promptly located Johnny’s pills.  The pills he was forced to take.  The pills that impaired his ability to reason.  The pills that caused him to forget to follow the procedures of the school that forced him to take the pills. Johnny was in trouble.

Jeopardy the first: Johnny had to appear at an administrative school hearing and faced expulsion or a year at the “alternative” school – like the supermax prison of the school world. Jeopardy the second, under asinine state law, as a minor with a driver’s license, Johnny’s possession of “drugs” put his license at risk and necessitated another administrative hearing before a state officer.  Third, and worst, Johnny faced a criminal proceeding and the possibility of jail time.

Luckily, Johnny had a good attorney and beat the triple threat.  He was back in class, soon weened himself off the school dope, and became a college honors student.  Others in the system are often not that lucky.  Maybe you know one of them. Maybe you were one of them.  Others have noticed this phenomenon and written about it.

Today John W. Whitehead wrote: Public School Students Are the New Inmates in the American Police State.

From the moment a child enters one of the nation’s 98,000 public schools to the moment she graduates, she will be exposed to a steady diet of draconian zero tolerance policies that criminalize childish behavior, overreaching anti-bullying statutes that criminalize speech, school resource officers (police) tasked with disciplining and/or arresting so-called “disorderly” students, standardized testing that emphasizes rote answers over critical thinking, politically correct mindsets that teach young people to censor themselves and those around them, and extensive biometric and surveillance systems that, coupled with the rest, acclimate young people to a world in which they have no freedom of thought, speech or movement.

If your child is fortunate enough to survive his encounter with the public schools, you should count yourself fortunate.

Most students are not so lucky.

By the time the average young person in America finishes their public school education, nearly one out of every three of them will have been arrested.

Whitehead.

Whitehead notes the utterly insane militarization of the school police, who shouldn’t even exist in the first place:

In their zeal to crack down on guns and lock down the schools, these cheerleaders for police state tactics in the schools might also fail to mention the lucrative, multi-million dollar deals being cut with military contractors such as Taser International to equip these school cops with tasers, tanks, rifles and $100,000 shooting detection systems.

Indeed, the transformation of hometown police departments into extensions of the military has been mirrored in the public schools, where school police have been gifted with high-powered M16 rifles, MRAP armored vehicles, grenade launchers, and other military gear. One Texas school district even boasts its own 12-member SWAT team.

As Whitehead states, the stories of abuse are “legion.” Students are being harassed, detained, and arrested for anything and everything.  One student was recently arrested for showing off his homemade clock at school.  Specifically, he was showing the clock off to his engineering teacher, who was duly impressed. Despite the fact the clock was obviously a time keeping device and impressed the shop teacher, its owner, a 14-year-old, was handcuffed and hauled away by police.

_85589317_4163c0e1-3c48-44ab-af0f-c53360632e81

Child Arrested for Chronometer Possession.  BBC.

The boy in question was a known Muslim and some feared his clock was a bomb. The criminal case was dismissed after the clock was verified to be a clock not a weapon.  I imagine the boy still faces school discipline in addition to the trauma he suffered during the incident.

This story almost makes sense.  Americans today face the threat of Islamic terror, largely because their government constantly stirs the Islamic world to the point of terrorism.  The same government then trains, equips and funds the known terrorists.  Worse, the government, almost out of malicious hate for the people, then import migrants from the areas where they have fostered hate and terror.  You can see this is definitely a problem.  But, it’s a problem with the state not with an aspiring young engineer.

Your government does not care, at all.  Frequently neither does the media nor the television-numbed people themselves.  Obey those laws!  Trust the state! Arrested means guilty, period!

William L. Anderson today recounts the horror story of the arrest and unlawful prosecution by the U.S. “Justice” Department of Xiaoxing Xi, Chairman of the physics department of Temple University, on espionage charges: Paranoia and Pernicious Prosecutions: The Department of Injustice Continues its War Against the Innocent.

The once-glorious standard of American criminal law – guilty beyond a reasonable doubt – no longer exists de facto in U.S. courts, and especially in federal courts. Furthermore, federal intervention in certain legal areas – and especially when highly-politicized accusations of sexual assault are made – has made it extremely difficult for charged individuals to mount a defense, even when a charge is ludicrous on its face.

Let me further explain. Had there been a trial federal prosecutors would have presented their evidence and Dr. Xi would have had to then rebut with his evidence. However, as became painfully obvious, prosecutors had no evidence. Instead, they had “evidence” that on its face was untrue because they had the wrong material. One imagines that prosecutors and their “expert” witnesses would have given jurors a lot of scientific terminology that would have been confusing, and when jurors are confused, they usually end up siding with the prosecution, since most Americans believe that an indictment itself is “proof” of guilt.

It would have been up to Dr. Xi and his defense to prove that federal agents had presented the wrong set of blueprints. The feds would have falsely claimed that theirs was the correct set, even though by then they surely would have known they were presenting false claims. This last point is important, because it is a crime to knowingly present false information to a jury, but prosecutors never are disciplined for doing just that.

Anderson.

As Anderson notes, the feds dropped their case once it was obvious they had no evidence.  Xi pretty much lost everything – his reputation, his position, his peace of mind as an innocent American – all because of groundless charges brought without evidence.  Evidence is (or used to be) critical for a criminal case and conviction.  In my career I had similar criminal cases in federal and state courts fall apart due to a complete lack of evidence.  More on some of those in another column or two.

Many do not care about standards of evidence, due process or about the rights of people in general.  See: here, and here, and here.  That last “here” link is to a story I did about an innocent man shot by the police in Atlanta in his own home for no reason.  That narrative has played out yet again:

Fearing for their lives, California deputies opened fire on a man who was recording them with a cell phone from the garage of his home Friday, claiming they thought it was a gun.

Sacramento County sheriff’s deputies then searched the man’s home, finding no guns, before they apologized and went on their way.

Fortunately, Danny Sanchez survived the shooting, ending up with only bullet fragments in his legs, which he was having removed through surgery on Friday.

And although deputies apologized to Sanchez, they are pretty much unapologetic for their actions because, you know, officer safety.

 Carlos Miller, PINAC News.

Pitiful action by pitiful men.  Scared of a cellphone.  “Sorry we shot you.  Well, have a good day, sir!”  And the lemmings among you will still praise the deputies and chastise the victim.  “He should have obeyed the law!”  He did.  “You have to respect the police!”  No known disrespect even after they almost murdered him. Reality is doing a really poor job convincing the state-worshipers their’s is a false god.

For you, the sane, eye with distrust the machinations of government: its foreign policies; its immigration policies; all its policies; its schools; its courts; its police. All the laws and all the agents serve but the government and its owners. You and I are either obedient servants or criminal enemies of the state.

Note: This article was originally intended as two separate parts. As the subject matters – schools as prisons and more prosecutorial/police misconduct are related, I combined them, here.  This also promotes reading economy.  You’re welcome.

A Rare Case of Justice

08 Tuesday Sep 2015

Posted by perrinlovett in Legal/Political Columns

≈ 1 Comment

Tags

America, corruption, Courts, crime, Georgia, justice, William Anderson

William L. Anderson had a great article today on real justice in America (Georgia of all places): You Really Cannot Make Up This Stuff: The Ordeal and Vindication of Tonya Craft.

Accused: My Fight for Truth, Justice, & the Strength to Forgive,by Tonya Craft with Mark Dagostina, BenBella Books, 2015, 348 pages, Hardback.

To give a brief synopsis of Accused, Catoosa County, Georgia, authorities in 2008 charged Craft, then a kindergarten teacher, of 22 counts of child molestation, with the three accusing children being two daughters of former friends, along with her own daughter. Not surprisingly, she lost her job, her two children, her home, and was vilified in the local media.

Craft endured a five-week trial in April and May of 2010, and in the end, the jurors declared her not guilty. The trial itself was a farce, a spectacle that one had to follow closely to believe. The judge permitted the two prosecutors to run the proceedings and acted as a third arm of the prosecution, openly declaring his disdain for the defense. However, despite all efforts to rig the trial, the jury gave its pronouncement and the two prosecutors literally ran from the courthouse to their vehicles, one of them covering his face with a notebook. As the title of this article states, you really cannot make up this stuff.

I have written before about the decline of the jury trial in America. This story today is inspiring as it is rare.

You can find Ms. Craft’s book here.

51fxzGPF6AL._SY400_

Amazon.com.

Marriage, Martyrs, and Malevolence

06 Sunday Sep 2015

Posted by perrinlovett in Legal/Political Columns, News and Notes

≈ Comments Off on Marriage, Martyrs, and Malevolence

Tags

America, Courts, freedom, government, Kentucky, law, Licenses, marriage, religion

The problem with the Kentucky clerk jailed by the federal District Court for refusing to issue marriage licenses is two fold:

First, states should not issue licenses, especially for something as sacred as marriage;

Second, federal trial courts should not exist.

Better yet, imagine no government at all.

There. The issue is resolved.

Friend of Freedom: My Remembrance of Bobby Franklin

26 Wednesday Aug 2015

Posted by perrinlovett in Legal/Political Columns

≈ 2 Comments

Tags

abortion, America, Bobby Franklin, children, Christian, church, Constitution, Courts, Devil, Federal Judges, freedom, George Bush, Georgia, God, government, guns, legislation, murder, politicians, press, principles, regulations, Second Amendment, Senate, taxes, The People

Several days ago several of my friends lamented both the constant barrage of stories about abortion and the subject itself.  All averredly pro-life they are none-the-less tired of hearing about Planned Abor…Parenthood, pro-choice, pro-life, and broken Republican rhetoric.  One asked, “why doesn’t anyone just do something?”

Someone tried.  Oddly enough it was an elected Republican from Georgia who actually used his position of power to make a difference.  He tried time and again.  Failure to him only meant another chance to try again.

He was dead serious about protecting children in addition to championing various other causes of freedom.  He was one of the very few living politicians I admired. I knew the man personally.  His name was Bobby Franklin.

Robert “Bobby” Franklin represented Georgia’s 43rd House District (Cobb County) from 1997 until his death in 2011.

RepBobbyFranklin

Bobby Franklin at work.  Google.

A self-made businessman he served on the House Banking Committee, among others.  At one time he was chairman of the House Reapportionment Committee.  He consistently stood for less government and more freedom.  He was never shy of controversy.

His most famous stand was for those unborn Georgians.  In 2011 he made sure the very first bill in the House hopper was one which would have made abortion a felony punishable by either death or life in prison.  See: H.B. 1, 2011.  He rightly considered the practice a form of murder.

His hardest critics, had they not been weak cowards, would have possibly tried to murder Bobby himself for his stance.  Of course, they resorted to base distortion and lying, going so far as to say Bobby would criminalize ordinary miscarriage. These were and are the same sort of satanists who laugh while discussing chopping up living babies and then selling the parts.

You can read and judge for yourself the would-have-been effects of H.B. 1 via the link above.  Here is the pertinent part of the Bill, concerned with protecting the rights of all citizens:

bobby bill

H.B. 1, 2011, GA Gen. Assembly.

Extreme, huh?

Upon his untimely death his detractors still mocked:

Bobby Franklin was the demagogue the Founding Fathers feared and warned us about, a perfect example of the excesses of democracy that would strip the common American citizen of his or her rights.

If you must have a eulogy from me this morning, it will be this, and this only: Bobby Franklin was a danger to democracy and a danger to women and now he’s dead.

Hrafnkell Haraldsson, No Eulogies for Georgia State Rep. Bobby Franklin, 
July 28, 2011. 

Nonsense, all of it.  The free people of the state had no better friend.

Bobby did want to strip away certain things from out the overfilled lumber room of Georgia law.  He wanted to strip out taxes.  He wanted to strip away regulations.  He wanted to strip away government involvement in people’s lives – to include abolishing the requirement for a state-issued driver’s license.

Had the ultra-left not been so preoccupied with killing babies they might have recognized Bobby’s position of licenses as similar to those of the 1960’s counter-culture.

“Free people have a common law and constitutional right to travel on the roads and highways that are provided by their government for that purpose,” Franklin’s legislation states. “Licensing of drivers cannot be required of free people, because taking on the restrictions of a license requires the surrender of an inalienable right.”
In an interview with CBS Atlanta News, Franklin claimed driver’s licenses are a throw back to oppressive times.

“Agents of the state demanding your papers,” he said. “We’re getting that way here.”

http://talkingpointsmemo.com/muckraker/georgia-republican-nobody-should-need-a-driver-s-license

TPM Muckraker, Feb. 2, 2011.

He further proposed other “unthinkable” freedom-centered legislation, to include:

*The sole use of gold or silver as currency (where did he ever get that idea???);

*Taxing and regulating the Federal Reserve Bank of Atlanta like any other bank;

*Banning forced vaccinations;

*Eliminating the state income tax;

*Eliminating property taxes;

*Banning eminent domain;

*Recognizing that civil government is last and least after family, religion, and community;

*Protecting the right to bear arms and to use them in self-defense;

*Making it legal to carry a firearm into a Georgia church (actually passed three years after his death); and

*Mandating that questions of Constitutional Law be settled by elected officials in the General Assembly rather than the Courts.

Bobby never quite trusted the courts nor lawyers (maybe to include me..).  He was not afraid of them and did not worship their decisions as most lawyers do.  In fact, his H.B. 1, supra, would have specifically banned federal courts from reviewing his law, as they lacked jurisdiction (true if moot today):

bobby bill2

H.B. 1, 2011. Federal courts need not apply.

A little known fact about Bobby Franklin was that he actually wanted to become a Federal District Court Judge.  He once called me, during the early 2000s, to ask what the qualifications were and, specifically, if one had to be an attorney.  I explained to him he met all the (very few) technical qualifications.  There is no requirement that a federal judge of any sort be an attorney.  Some of the finest of all American jurists have been (long ago) non-lawyers.

We then discussed the political qualifications.  Politically, one does need to be an attorney.  One also needs to contribute heavily to a President’s campaign.  One must be capable of passing U.S. Senate scrutiny after securing a nomination.  I asked him if he thought George Bush (the dimmer) would nominate such an outspoken, relentless champion of liberty.  We laughed and he apparently dismissed the idea.  That was a shame.

I think what had stirred him to this unlikely career change idea was the flap over the separation of church and state caused by the public display here and there of the Ten Commandments.  I’m sure he had other reasons too.  He would have made a fantastic judge.

Bobby was a fantastic man.  A man in real life in addition to the newspapers and the state house.  We attended a men’s wild game dinner at the First Baptist Church in Woodstock together.  Then governor Sonny Perdue gave a short sermon before shotguns were raffled off.  Sometimes Georgia is a damn fine place!  Perdue actually gave a decent homily, concerning the wrath of the devil in our lives: “Be sober, be vigilant; because your adversary the devil, as a roaring lion, walketh about, seeking whom he may devour.”  1 Peter 5:8, JKV.

That is a powerful verse and Perdue’s usage was well placed.  Powerful also was Bobby Franklin’s response to a joking question asked that night by another speaker.  Remember, it was a men’s group.  The speaker laughingly asked how many of us were “henpecked.”   A thousand or so of us sheepishly raised our hands.  Bobby did not.  Real. Man.

I found out he was gone one day when I was poking around my Facebook feed and realized Bobby wasn’t on anymore.  A Google search revealed his death to me.  As could be guessed from his legislative history, Bobby was a staunch Christian.  His death was discovered when he failed to show as usual at his church on Sunday morning.  He died of well-hidden heart problems.  One would have never suspected he took prescription medications of any kind – he was as physically fit as he was steadfast to his principles.

The popular press was a bit kinder than the lunatic left in its obituary:

“He was one of the few politicians who stood by what he believed in, whether you agreed with it or not.” …

“He would want to be remembered first as a person of faith and second as a person who loved his country and loved liberty.” …

“While he certainly was controversial, he was never vitriolic and was never mean. This is a very sad day for Georgia.”

Franklin could also often be a thorn in the side of Republican leadership. While his go-it-alone attitude was rarely problematic, he could tie up committee meetings for hours. A member of the Judiciary Non-Civil Committee, he would frequently attempt to add anti-abortion language to unrelated bills to the exasperation of his colleagues.

He also was unafraid to challenge the speaker of the House, an act somewhat akin to challenging a king. On several occasions, even challenging a member of the same party, Franklin would force a vote of the full House in an attempt to overrule the speaker. This was true under both former Speaker Glenn Richardson, R-Hiram, and current Speaker David Ralston, R-Blue Ridge.

Franklin Remembered, AJC, July 26, 2011.

I suppose this is my belated good-bye to Bobby.  His loss was a sad blow to Georgia and America.  Also, sadly, we will not likely see his kind again.

Trial By Combat

27 Wednesday May 2015

Posted by perrinlovett in Legal/Political Columns

≈ Comments Off on Trial By Combat

Tags

accused, Alexander Hamilton, America, ancient law, Athens, Boston Bombing, Boston Massacre, Boston Tea Party, Britain, Congress, Courts, crime, death penalty, Dzhokhar Tsarnaev, English common law, Fingoldin, freedom, Germany, John Adams, jury, King, law, Melkor, Natural Law, Parliament, people, police, punishment, Rome, Trial by Combat

Not too long ago I wrote about my experiences with the American Jury system in the 21st Century.  It is broken.  End of story.  Any acquittal you read about is an anomaly – a celebration of truth and luck in a world gone wrong.  Juries are no longer the last check against tyranny they were intended to be in ancient Rome or Athens.

Most people plead guilty to criminal offenses.  Most of the rest elect to the convicted (not just tried) by a state appointed and employed Judge.  The small few who make it before a jury – not of their peers – are usually found guilty.  Everything goes the state’s way. Many celebrate this fact. I do not.  We were supposed to have due process and equality under the law.  This is especially important to the little person facing the endless resources of the government.  It is also, now, a fiction.  We have none of it.  Just convictions.

united-states-courthouse

(Temple of doom.  Google.)

The defendant in the Boston Bombing trial, Dzhokhar Tsarnaev, was convicted and sentenced to death.  His was one of the oddest trials I have ever heard of.  It lacked even the plausible credibility of some Soviet-era show trials.  In June Tsarnaev learns whether the judge will condemn him to die.  He surely will be executed.

If, indeed, he did commit the alleged terror attack, Tsarnaev deserves to die.  However, as I have noted before, there is amble evidence to suggest a government link to the plot. If the government is involved in any way, there is usually a plot participation.  This might not excuse Tsarvaev but it would implicate others.  It won’t though.  There was absolutely no mention or murmur of this in court on Tsarnaev’s account.  Alarmingly, there was no murmur at all from the defendant.  There was no defense whatsoever.

In a way the defense strategy made some sense.  They knew, as do I, there is no hope for honest truth or justice in an American court.  Accordingly, they adopted an approach which plead Tsarnaev guilty while attempting to shift the blame to the defendant’s dead brother.  The ultimate attempt was not to evade a conviction (a given) but, rather, to avoid the death penalty.  The approach did not work.

The government opened with a sympathetic case – no-one likes terror attacks on innocent people.  The defense then opened by acknowledging the crime and the defendant’s participation therein.  “Yeah, he did it. But…”  They closed the same way.

Then, the government called witnesses.  These were victims who had survived the attack.  They told the jury and court of their terrible injuries.  Terrible as they are, they do not establish, at all, any criminal culpability.  No mind – Tsarnaev had already admitted guilt. In most cases these statements of victims come at the very end of the trial – after guilt has been adjudicated.  They are usually used to determine what level of punishment is deserved of the convicted.  This case saw all phases conveniently wrapped into one show.  No challenge or examination at all was conducted on behalf of the accused.

I, as a defense attorney, could have lessened the blow of these witnesses but asking them if they had ever seen (in person) my client before.  None of them had.  They had no way to link Tsarnaev to the crime scene.

That tenuous link came from a video and pictorial collage presented by the government. Cameras are everywhere these days and there were numerous shots of the Tsarnaev brothers at the Marathon.  Nothing showed them setting off or planting the bombs. Then again, the defendant had already admitted his guilt.

No challenge came to this presentation.  There was equal evidence of former government employees – current “security” contractors at the event – with the same backpacks and in the same places as the accused.  The difference was that several (not presented) photos showed the brothers leaving with laden backpacks while the agents walk away unencumbered.  Nevermind.  Guilt admitted, remember.

The government presented weak findings as to how the alleged bombs were made.  A good munitions expert could have dissected these as ridiculous.  None did.  All evidence was submitted without protest.  There was then the matter of an alleged admission written on the walls of a hideout boat.  No objections.

Given what they were presented with the jury rightly found the defendant guilty.  He lost his gamble as to the jury’s recommendation of death.  That should have come as no surprise.  To the open-eyed and open-minded it should come as an alarm as to where the system has settled.

This is no system in which to place any faith of fairness.  The prosecution will get whatever it seeks in most cases.  Nothing will change.  There are efforts to reform the game but it is too far gone.  There is no public support for such efforts.  Thus, any alternative seems logical, if it be at all feasible.

Before I go further let me state that everyone is entitled to a defense at trial in cases of alleged criminal offense.  Ages ago several British soldiers were tried and acquitted in the Boston Massacre.  Their attorney believed in justice, no matter how unpopular the accused.  His name was John Adams.  You may have heard of him, he served as our second President.

There is an older, if more archaic, alternative to the jury system in criminal or civil cases.  You have never heard of it.  No American lawyers understand it nor would they encourage it.  The Courts will surely be averse to it though it has never been stricken from the codified law (like that matters anymore).  No law school will teach it.  No agent of the state would wish to face it.  No right-minded person would assert the alternative. But, it is there.

There is (or was) a thing called Trial by Combat.

Trial by combat (also wager of battle, trial by battle or judicial duel) was a method of Germanic law to settle accusations in the absence of witnesses or a confession in which two parties in dispute fought in single combat; the winner of the fight was proclaimed to be right. In essence, it was a judicially sanctioned duel. It remained in use throughout the European Middle Ages, gradually disappearing in the course of the 16th century.

Wikipedia (May 27, 2015).

trial-by-combat-granger

(Fighting it out.  Google.)

Wikipedia says this was a Germanic legal tradition, which is true.  However, the custom was known to many other ancient cultures.  Also, it continued into the somewhat modern age.

The defense continued in regular practice into the Seventeenth and even Eighteenth Centuries.  The accused or defendant would assert or demand his right. The prosecutor or plaintiff or a chosen champion would then join the accused in singular combat.  This was to the death or to a submission – usually death.  I cannot imagine too many district attorneys, police officers, or offended ex-wives going along, willingly, with such strategy. Then again, I cannot see most fat, lazy Americans demanding such a right let alone conducting such as trial.

In 1774 an attempt was made in Parliament, partly in response to the Boston Tea Party, to abolish the practice.  This and all other reform efforts failed.  No bill or law has ever rescinded the ancient right.  The right was in place, part of the English Common Law, when the American colonies declared independence from the King.  Thus, the right remained available to Americans.  Mostly, such spectacles took form in gentlemanly duels – outside of the courts.  Alexander Hamilton participated in one of these with fatal consequences.

Still, no state or Congress has ever formally repealed the practice.  The courts have not definitively ruled on it either.  This is the case in old England as well as in America.

As recently as 2002 a demand for trial by combat was made in Britain.  In Suffolk a man made the demand as his defense in an administrative hearing concerning the local DMV. The magistrates in charge, deeming, him deranged at best, ignored him and fined him a small sum for failing to register (or de-register) his motorcycle.  No appeal was made.

You would likely never assert this right as a defense or alternative course of trial.  Nor would I.  However, if facing severe criminal charges and punishment, trial by combat might mean the difference between prison and a mental hospital.  Which seems better to you?

If, though, you should succeed in joining a wager of arms, you may count yourself among the fortunate, even mythical, few.  In a federal criminal matter you may consider yourself Fingolfin doing battle with Melkor himself.  May the honor and victory be yours.

Far Beyond Control

13 Wednesday May 2015

Posted by perrinlovett in Legal/Political Columns, News and Notes

≈ 4 Comments

Tags

America, anarchy, army, Bush, churches, Clinton, Congress, Courts, crazy, crime, Democrats, election, executive, fear, fools, freedom, George Carlin, government, law, law. people, military, Obama, Patriot Act, police, politicians, Posse Comitatus Act, republic, Republicans, Ron Paul, sheep, Sixth Circuit Court of Appeals, special forces, standing army, students, taxes, terror, Texas, U.S., veterans, voting

“Your” government is officially far past the point where it could be possibly reigned in. Next year must hold in store an election.  I keep hearing and reading that the Republicans and Democrats are preparing their usual assortment of tired psychopaths from which the little people are to select their future “leadership.”  It could be that I have stepped through a worm hole to the past because I keep hearing names like Bush and Clinton.

As George Carlin used to say, “this is the best we can do.”  It will never get better. Incredibly, it gets worse every four years.  I gave up on voting and political participation a long time ago.  I stand by my statement that the last, best chance we had to save the Republic was to elect Ron Paul President in 2008.  We missed it.  Today, I lead a happy life of personal anarchy.  My only involvement with the government is paying taxes and evading the traffic cops.  It works well.  The sheep still don’t see it.

You may have seen or read about the increasing militarization of government forces – the blurring of lines between domestic police and the standing martial army.  I wrote about it previously.

pi052704a1

(USA! USA!  Google.)

Speaking of blurred lines, I, being a recovering attorney, am THE expert on the Posse Comitatus Act (PCA).  The PCA was put into place many, many years ago to halt the use of military forces from providing ordinary law enforcement within the territorial confines of the U.S.  It has not worked.

Law after law and action after action have provided a myriad of exemptions to the PCA. Drugs, terror, riots, training – you name it.  The PCA is moot.

So it is today that most highly trained, deadliest and most feared elements of our armed forces – the special forces – are on the streets training with local police agencies.  It’s like Barney Fife meeting the Seals in Mayberry.  Otis better watch out.

The purpose of elite military forces is to carry out daring missions ABROAD (not at home) in order to disrupt enemy activities with minimal effort or notice.  They are the last force one should want operating amidst the people at home.  This too is lost on the MTV-watching public.

The people are afraid of everything.  Should the government announce pillow cases are tools of terrorism, the people will dutifully burn pillow cases in the town square.  The fools will demand and cheer as the government bombs pillow factories in places like Libya and Iraq.  Imaginary specters are fought with ferocity and pomp.

Meanwhile, real threats go virtually unnoticed.  Recently, the same week that saw the U.S. military engage in various live terror trainings in the Southwest (against fictitious enemies) saw real terrorists attack a cartoon convention in Texas.  Thankfully, for us, the sane, Texas is not Paris.  In the Lone Star State, muslin extremist face summary execution from even lone police officers.  Don’t mess with Texas.  But, no-one else has drawn the corollary (or disconnect) here.  The vaunted military trains for an attack the police can’t handle at the same time the police handle an attack the military can’t.  So it goes.

The sheep graze on.  Fox News, radio talkers and modern “churches” have instilled in the ignorant people a sense of worship for all things military, all things government – so long as it’s the American military and government.  When two groups of drunks meet at the beach, and fight, the sympathy of the nation goes to that group of martial disposition.  No mind is given to reality.

The Sixth Circuit Court of Appeals has just tried to put the brakes on the monstrosity known as the USA Patriot Act.  The Act was intended to grant additional unchecked power to the central government.  Some in the Judiciary have noted this and its underlying illegality.  It does not matter, as Ron Paul notes.  The Bush/Clinton/Bush/Obama/Bush/Clinton/Etc. executive is above the law and will refuse to abide by any Court ruling which limits their authority.  The Courts, truly least of the three branches, are powerless to enforce their rulings.  The Congress, fat, bribed and stoned into complacency, will do nothing.  The sheep graze.

So, pontificate as you will about the coming election.  I may listen but I won’t respond. I’m not rude, it’s just that I don’t believe in fairy tales no matter how entertaining. Next November, you go out and waste your time and energy, saving us from the other side. Afterwards, you may find me at the local bar or cigar shop doing what I do.  Or, you could just join me in freedom land.  Your choice.

The Lesser American Flag Flap

06 Wednesday May 2015

Posted by perrinlovett in Legal/Political Columns, News and Notes

≈ Comments Off on The Lesser American Flag Flap

Tags

America, banks, Bill of Rights, Constitution, Courts, criminals, Facebook, First Amendment, flag, freedom, Georgia, government, insanity, IRS, Libya, Mordor, NFL, people, protest, slavery, taxes, theft, Tom Brady, War, Washington

A long time ago I penned a column called The Great American Flag Flap (I think).  It was published somewhere and I think it was about the attempt of various rednecks to anger blacks by flying the Confederate Battle Flag.   Maybe I have the parties backwards.  It was about nonsense nonetheless.

It has come to my attention that there currently rages across the land a new flag-related issue.  This time it concerns the American Flag.  Maybe you’ve heard the news. A group of black (???) students at a Georgia University (always in Georgia, God help us…) decided to walk on the U.S. Flag in protest of … something.  There’s a lot to protest in Amerika today.  I fully understand that.

Those students have drawn considerable protest of their protest.  Also, other students (?) elsewhere have started threading on flags.

flag beard

(Here some bearded yahoo stands on the Flag for something… WDTN.com.)

By the letter of the law (in a book somewhere) this activity is illegal flag desecration. However, the courts have consistently ruled that flag walking (burning, etc.) is free speech protected by the First Amendment.  Remember the First Amendment?  The Constitution?  Rule of law and all that???

I call this post The LESSER American Flag Flap for a reason.  The fact is, all things considered, flag trampling does not overly concern me.  Some of my friends on Facebook see it otherwise.  I have received several requests to condemn these flag protests as a dire threat to everything America allegedly stands for.  I understand this but I am still not concerned.

The protest protesters say things like the following.  Cleetus from Heehaw Junction, West Virginia says, “that thar flag stands for the men who died for our freedoms!”  Lucy Lou from South Hick, Mississippi screams, “theys don’t understand what we has been through as democratic peoples!”  Jethro from the upstate of New York avers: “We have a flag for a democrats.  The country needs a hero.  Yous guys needs to know that the service of the armed forces means more work here.  The terrorists are everywhere!” Well said, Jethro.

I disagree with all of these statements though I respect the sentiment behind them all – except Jethro’s – not sure what he’s rambling about.

Here’s my problem.  Right now, we have a government hell bent on taxing and regulating our people into the grave.  The same government wants to bomb and invade all other peoples on earth.  The police run around murdering people SS style.  There are no jobs.  The children can’t read or eat.  We are beset with hoards of illiterate invaders who are determined to obtain every benefit the welfare office offers.  Bridges are collapsing.  James Brown is dead.  Amidst all this, I’m supposed to be upset because some kid somewhere stepped on a piece of fabric?  I think not.

I just heard the NFL received a 243 page report on Delate-gate.   Tom Brady is in the crosshairs.  Mind you, that’s about 243 more pages than we saw about the 2012 death and destruction at the Benghazi Consulate.

It’s worse.  The head cover-upper of Benghazi is the Democratic front runner for President in 2016.  The leading Republican is a guy named Bush.  See a pattern?

The short, pointless war in Libya was designed solely to steal the soverign wealth fund of that country from the long-suffering people of Libya.  Some $200 Billion dollars worth of funds were whisked out of Libya and into the hands of a British Bank.  No explanation given, no questions asked.  The predicament now over that money is how much our criminal friends at Goldman Sachs were entitled to.

Keep your eye on the soft football, folks.

The crown of insanity sits atop the head of our central imperial government.  Despite robbing a hundred million Americans every year, the IRS still claims you have rights!

IMG_20150506_141614198

(The Tax Slave Bill of Rights.  IRS/Morgoth.)

Ten rights to be exact.  Do not confuse these with the defunct Bill of Rights which once accompanied the charter of the Mordor on the Potomac.  The tenth “right” brought laughter to my lips: The right to a fair and just tax system!  I tell you that no such thing exists in nature or in fiction.  The system is place is plain but in no way fair.  You simply pay what they tell you or they seize your property and put you in jail.  Resist and they will do away with you.  Just, huh?

Maybe I’m wrong.  Maybe a little more respect for flags and footballs is all necessary to cure the ills of the free world.  Maybe the sun will rise in the West tomorrow.

Trial By Jury, The Yellow Ribbon Myth and the Decline of an Ancient Institution

29 Wednesday Apr 2015

Posted by perrinlovett in Legal/Political Columns

≈ 6 Comments

Tags

alternative, America, Amerika, ancient, Arizona, Boston, case, Cicero, Courts, crime, English, freedom, greece, guilt, jury, justice, law, Magna Carta, men, Milke, Ninth Circuit, order, peers, people, rights, Rome, terror, trial, Tsarnev, U.S.

The ancient Greeks and Romans had the crazy idea that a man accused of a crime should have the benefit of a public trial.  During this ordeal the accusing party (the State) would have the burden of presenting facts, which might establish a crime.  The Sword of God crowd would hold these base allegations sufficient to show the underlying criminal act.  Our ancient ansestores had other ideas.  To them the issue was important enough to warrant consideration by an assembly of impartial justices – a jury.

Of old the jury consisted of various members of the accused’s peers.  These were his friends whom knew him well.  Why were such pre-disposed men considered impartial, as they were friends of the accused?  The idea was that, being men of honor, they would hear the evidence and weigh it in their minds fairly regardless of their relation to the suspect.  The fact that they were friends of the accused served as a check against an illicit prosecution.

If “X” was charged with a baseless crime, the jury might collectively judge that, “yes, X is given to bouts of indiscretion, but he would never do something like this.  Or, they might find that X, while am affable fellow, might be the sort who would commit such an act as alleged.

The system, while not perfect, worked well.  In Rome, such trials were reserved for the upper classes – for men of privilege.  Commoners were generally tried by magistrates in shorter, more informal settings.  These lessor citizens, being of lessor importance, faced lower burdens of proof and lower levels of punishment.  Fair if not.  Members of the elite classes, given to higher responsibilities, were treated to high levels of justice.  See the defense of Milo (a murder suspect), presented by one Marcus Tullius Cicero, one of the greatest lawyers of antiquity.

This theoretical approach to justice lived on after the 5th Century, being embodied in the Magna Carta, a core right of Englishmen.  Thus, the right to a jury came to America.

Today this right is practically non-existent.  In modern Amerika a jury trial, while nominally “of one’s peers” is one assured not by your peers.  The fact is that very few criminal prosecutions end with a trial.  Most of those end with a conviction (the vast majority).  This is due to the overwhelming influence of the State and the extremely limited powers of the accused to resist such influence.  Every effort is made to ensure that the jury does not, in nay way, know of the accused on a personal level.  Further, only those enslaved to the power and suggestion of the accusing State are favored or empaneled.  The system has been turned on its head.

Lately, several high-profile trials have made the news; these illustrate my point that there is no right to a fair trial in Amerika.

In 1989 Debra Milke was tried for the murder of her four-year-old son, Christopher.  A jury (not of her peers) found her guilty – based solely on the unsupported testimony of a rogue police detective.  Despite all indications of innocence the State’s chosen jury found Milke guilty.  Thus, for several decades Milke lived in the daily terror of Arizona’s death row – dimmed to die for a crime she did not commit.  The guilty parties averred she had nothing to do with the crime.  This did not matter to the State until the matter was finally (thankfully) reviewed by the U.S. Ninth Circuit Court of Appeals and the Arizona Supreme Court.  See also: Arizona Supreme Court Won’t Allow Retrial of Debra Milke. The prosecutor is, naturally, frustrated by this untimely carriage of justice.

Milke was blessed by higher intervention.  Too often the innocent in Amerika are executed for crimes they did not commit.  A recent admission shows that the FBI and its crime lab have doomed at least a dozen innocents to death.  You have probably never heard of these cases of injustice.  So it goes.

Thus do the innocent, robbed of true justice, resort to filing pleadings in courts entitled, “F*ck this Court.”  This one warrants reading and consideration.

Debra Milke faced execution because a heartless police officer lied under oath.  The officer has since “taken the fifth” so as to avoid prosecution himself for his lies.  The citizens of Arizona will pay millions of dollars to right this injustice.

A thousand miles away, in Boston, Dzhokhar Tsarnev has been found guilty of the Boston Marathon Bombings.   His was one of the most bizarre trials I have ever heard of. See: Boston Marathon bombing trial: 18 jurors at a glance.  The jury was selected based on their indifference toward the accused and their alliance with the state.  Tsarnev was not allowed a defense.  Rather, he, by way of his “counsel,” admitted guilt but relied on specious allegations of the undue influence of his older brother.  His brother and other key witnesses were, conveniently, dead.

The case was tried backwards.  The prosecutor first present victims of the bombing and their woeful statements – this usually comes after guilt has been established, during the penalty phase of the trial.  Tsarnev’s counsel never even questioned these witnesses.  The government then presented an unopposed fable of how Tsarnev constructed and utilized homemade bombs.  Again, no challenge came from the “defense.”  The lack of direct evidence was deafening.

Having admitted guilt and completely failing to challenge the government’s base allegations it was a given fact Tsarnev would be found guilty.  They strategy (if any) of his counsel was that he would attempt to evade the death penalty by way of the supposed undue influence of his dead brother.  Charming.  Pathetic.

It is entirely likely that this young man played a part in the bombings.  Thus, he deserves execution for his crimes.  However, I have long suspected he was only a pawn in a false-flag operation designed to test America’s willingness to endure a police state (shelter in place, and all that).   We will never know the truth here.

As a former criminal defense attorney I am well aware of the failings of the modern, American jury system of “justice.”  Here follows the entire account of one of my trials in federal court, before a jury and bereft of justice.  The names have been changed to protect the innocent, the guilty, and me.  This story was originally designed for publication (never achieved) in a major news journal:

The Yellow Ribbon Myth: Amerikans Do Not Support The Troops, Nor Justice.

Do you “support the troops?” One sees countless bumper stickers proclaiming such support. I no longer believe the propaganda. When someone says, “I support the troops,” I hear, “I support the government.” This concept was made painfully obvious to me during a criminal trial last fall.

My client, “Donny’s” case, in a U.S. District Court, 2012:

I’m am calling my client “Donny” as I have not yet sought his permission to use his name; I also may be restrained from using certain facts due to Orders of Sealing/Impoundment.

Donny enlisted in the U.S. Army while in high school and completed basic training the summer before his senior year. Donny received an appointment to West Point though, after one year, he stopped his education and entered the Army as an enlisted man. He served with the 375th Ranger company in Afghanistan where he was forced to kill men, women, and children. The experience haunts him daily.

While in the field and during additional training he sustained major injuries, which necessitated his retirement on disability: I think his physical was 50%; his mental injuries (PTSD, psychosis, etc.) were 100%. During his tenure he rose to the rank of Sargent and was awarded so many medals and commendations that multiple forms DD-214 were necessary to list them all.

He received continuing physical and psychiatric treatment at the Augusta, GA VA hospital; they placed he on enough narcotics and psycho-tropic drugs to turn anyone into a zombie. His mental condition was initially rated as temporary. Throughout 2011 he pursued the status of “permanent and unemployable.” During this time he suffered marital and mental health-related troubles daily. Towards the end of his bureaucratic ordeal he made a phone call to the VA national “service” center.

During the (recorded) call he made statements which the VA took as terroristic threats – they alleged he said he was going to the regional VA office in Atlanta to kill the first 3,000 people he encountered using unspecified weaponry. My review of the call lead me to believe he was not sane during the call, that the government’s allegations were a wild, composite stretch of the words used, and that VA’s service isn’t. He was originally arrested on State charges. He was legally carrying a pistol at the time though the arrest was without incident. Damningly, his permanent status was approved the next day. He was released on bail only to be rearrested by the feds, charged with violating 18 USC 875, interstate terror threats (a 5-year maximum felony). Had he specified a “weapon of mass destruction” he would have faced 40 years in prison.

I was appointed as defense counsel and immediately moved for a psychiatric evaluation, thinking this would easily end the case. After several months I received a lengthy report from the MCC New York which exhaustively listed Donny’s chronic mental problems and concluded he was permanently psychotic. However, the good (government) doctor also stated he was obviously sane at the time of the call and competent to stand trial.

We elected to present the matter to a jury, figuring no twelve people could possibly convict a sick man for seeking help from the only source available. We were wrong. The government’s doctor explained the extent of Donny’s condition. The VA representative from the call stated she was not threatened by Donny’s language. The VA stated they did not take any defensive measures when faced with this 9/11 magnitude threat from a man they had trained to expertly kill other human beings. The VA storm-trooper in charge testified he lied under oath to the Grand Jury to obtain the indictment and that he, for no reason, held Donny’s elderly, disabled father at gunpoint AFTER the arrest. Despite all this the twelve morons returned a guilty verdict in less than half an hour. As an aside, at trial the government sandbagged me with thousands of pages of previously withheld discovery and they handed me the afore-referenced pistol LOADED in open court (I cleared it in disbelief).

Donny was sentenced to time served with the probationary condition that he continue his torture at the VA. When I walked into the hearing I was greeted by the AUSA and the VA goon who both suddenly agreed Donny was out of his mind during his “crime.” Donny accepted his sentence and declined both an appeal and a request for a Presidential pardon. I fear his condition will worsen, perhaps with morbid consequences. He is a delightful but pitiful and broken man. I was saddened and broken by this affair.

In modern Amerika Grand Juries, while supposedly independent in their deliberations, are little more than tools of State prosecutors.  The defense is usually excluded entirely. The State has the free reign to present any “evidence” no matter how contrived.

The trial that follows (if any) is a showing of prosecutorial imagination and juridical ignorance.  Less that 3% of defendants are acquitted under this system.  The innocent are convicted and often executed.  The lucky escape after years of torment.  Life goes on and things are not likely to change any time soon.

I will, shortly, present an alternative, if primitive, alternative to this mad, fixed system of “justice.”  Until then, be forewarned and prepared.

An Unexpected Gift: Christmas at the Supreme Court

22 Wednesday Apr 2015

Posted by perrinlovett in Legal/Political Columns

≈ 2 Comments

Tags

Caballes, citizens, Constitution, Courts, crime, de minimis, detention, drugs, Eighth Circuit, Fourth Amendment, freedom, government, guns, libertarian, Liberty, Nebraska, police, probable cause, Rodriguez v. U.S., Supreme Court, Terry v. Ohio, The Nine, traffic, United States, War

Usually my legal and political writings center on the wrongs of government … and rightly so.  My assessment of court rulings, of the Supreme Court in particular, are often negative: The Affordable Care [SIC] Act; the end of the Fourth Amendment; etc.

Yesterday, however, a gleam of sunlight emanated from the High Court.

From coast to coast the police are profiling drivers in an attempt to find any reason to arrest otherwise free citizens in the ongoing War on Freedom.  A simply traffic stop, for something as innocuous as driving on the shoulder of the road, is used to extend the parameters of the stop to facilitate a deeper investigation.  This investigation is aimed at discovering illegal drugs, guns, or cash.  The initial routine stop is a pretext for a subsequent felony search, in the absence of probable cause to suspect any felony has been committed.  In plain words, the stop is a fishing expedition.

In Rodriguez vs. United States, 575 U.S. __, Slip Opinion No. 13–9972 (April 21, 2015), the Court declared these after-the-fact exploratory searches illegal.

Denny Rodriguez was stopped by a Nebraska law enforcement officer for temporarily driving his SUV on the shoulder of a road.  The officer checked Rodriguez’s license and issued a warning regarding his road departure.  Things then got out of hand and out of Constitutional bounds:

Officer Struble, a K–9 officer, stopped petitioner Rodriguez for driving
on a highway shoulder, a violation of Nebraska law. After Struble attended
to everything relating to the stop, including, inter alia, checking
the driver’s licenses of Rodriguez and his passenger and issuing a
warning for the traffic offense, he asked Rodriguez for permission to
walk his dog around the vehicle. When Rodriguez refused, Struble
detained him until a second officer arrived. Struble then retrieved
his dog, who alerted to the presence of drugs in the vehicle. The ensuing
search revealed methamphetamine. Seven or eight minutes
elapsed from the time Struble issued the written warning until the
dog alerted.
Rodriguez was indicted on federal drug charges. He moved to suppress
the evidence seized from the vehicle on the ground, among others,
that Struble had prolonged the traffic stop without reasonable
suspicion in order to conduct the dog sniff. The Magistrate Judge
recommended denial of the motion. He found no reasonable suspicion
supporting detention once Struble issued the written warning. Under
Eighth Circuit precedent, however, he concluded that prolonging
the stop by “seven to eight minutes” for the dog sniff was only a de
minimis intrusion on Rodriguez’s Fourth Amendment rights and was
for that reason permissible. The District Court then denied the motion
to suppress. Rodriguez entered a conditional guilty plea and was
sentenced to five years in prison. The Eighth Circuit affirmed. Noting
that the seven or eight minute delay was an acceptable “de minimis
intrusion on Rodriguez’s personal liberty,” the court declined to
reach the question whether Struble had reasonable suspicion to continue
Rodriguez’s detention after issuing the written warning.

Courts have, for eons it seems, held “de minimis” or short deprivations of liberty acceptable in the War on Freedom.  I and a minority of libertarian legal scholars hold that any deprivation without cause (and the War itself) is illegal.  In an amazing turn of events the Court has agreed – in part.

“In Illinois v. Caballes, 543 U. S. 405 (2005), this Court held that a dog sniff conducted during a lawful traffic stop does not violate the Fourth Amendment’s proscription of
unreasonable seizures. This case presents the question whether the Fourth Amendment tolerates a dog sniff conducted after completion of a traffic stop.” Rodriguez, Slip Op. at 1.

I do not agree with Caballes but I am more than willing to take what the Court offers with Rodriguez:

“We hold that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, “become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission” of issuing a ticket for the violation.”  Id.

“A seizure for a traffic violation justifies a police investigation of that violation. ‘[A] relatively brief encounter,’ a routine traffic stop is ‘more analogous to a so-called Terry
stop . . . than to a formal arrest.’”  Id, at 5.  This is true so long as the stop is for a violation of a valid law (few and far between).

However, “[t]he scope of the detention must be carefully tailored to its underlying justification.”  Id.  Such justification goes only with the underlying traffic stop.  “A dog sniff, by contrast, is a measure aimed at detecting evidence of ordinary [non-traffic related] criminal wrongdoing.”  Id, at 6.

The presence of overt indications of attendant criminal activity – the smell of marijuana, contraband plainly visible to an officer, etc. – may give rise to a further search, investigation or detention.  Concerns for “officer safety,” as nebulous a concept as may be imagined, may also justify a stop beyond what would ordinarily be necessary.  Absent these factors further detention is untenable.  Id, at 9.

Thus, the next time you are stopped for a simply traffic violation and you receive either a warning or a ticket, you are free to go at the conclusion of the incident.  You may deny an officer’s request for additional harassment citing Rodriguez.  Mind you, the police are as likely to comply with this ruling as they currently comply with the Constitution itself.

Police-dog

(Nothing to worry about.  Google.)

Should you be foolish to argue the old “ain’t doing nothing wrong, ain’t got nothing to worry about,” then, please, don’t be troubled when you find yourself surrounded one night by gun-wielding officers with attack dogs.  Even if trouble arises, and you live through it, maybe The Nine will eventually smile on you.  Then I can happily write here about your case.

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Perrin Lovett

From Green Altar Books, an imprint of Shotwell Publishing

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