SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RENSSELAER
AFFIDAVIT IN SUPPORT
George J Jubic, Plaintiff,
v.
Robert Jubic & Robert McAllister, Index# 214005
Defendants,
----------------------------------------------------------------------
STATE OF NEW YORK
COUNTY OF RENSSELAER;
George J. Jubic, being duly sworn, depose and say:
1. That I am the plaintiff in the above mentioned proceeding.
2. I have commenced this action against the defendants while represented by an
attorney (Mr. James L. Coffin) but he has since been permanently disbarred from
practicing law in the State of New York. Unable to afford the expense of hiring
another attorney, I am left with no choice but to prosecute my case un-assisted by
counsel.
3. Due to financial difficulties, mostly attributed to the wrongs suffered upon
me by the defendants willful and wrongful diversion of my inheritance and
partnership funds, I have found it necessary to file a Chapter 13 bankruptcy in the
United States District Court for the Second Circuit to save my home from
foreclosure. I have been approved by the court to make minimum payments to my
creditors until which time this case can be settled. (See Matter of George J
Jubic, BK Case # 96-12259.
4. My sole source of income is from my full-time employment where I earn $11.00
per hour.
5. The only property I own is the home I am living in, the 2005-6 value of
which is said to be near $100,000, but I owe $70,000 on the mortgage and $10,000
in outstanding debt from mortgage and property tax arrears. These debts are also
included in the bankruptcy re-payment plan, though there is still a chance of losing
my home if my financial situation does not improve. At the time I purchased the home
in 1999, I was counting on my partnership earnings to help make ends meet.
6. It is my hope that my financial status will be significantly improved upon a
favorable settlement of this case, and that all my creditors (including any legal
fees and attorney expenses) can be paid in full and that I will be financially able
to keep my home.
7. On or about April 4th, 2009, I did make a motion in this court pursuant to
CPL 1101 for Permission to Proceed as a Poor Person and also a motion under CPL 1102
for assignment of counsel.
8. On or about June 16, 2009, a Decision & Order was issued denying my
application under CPL 1102 for Assignment of Counsel, but said Decision and Order
did not address my application under CPl 1101 for request for Permission to Proceed
as a Poor Person. (See Decision & Order attached as Ex. ________)
9 CPL § 1101, “ Motion for permission to proceed as a poor person,” is a
separate and distinct application from CPL ss. 1102, “Assignment of Counsel.” CPL
ss. 1101 asks only for a waiver of fees, while application under CPL ss. 1102 asks
for assignment of counsel.
10. Plaintiff submits that the denial of an application under CPL ss. 1102 for
assignment of counsel does not nor should not warrant a blanket denial of an
application under CPl ss. 1101 for a waiver of fees, particularly since permission
to proceed as a poor person is more freely granted than an application for
assignment of counsel in a civil case.
11. Application under CPL 1101 for a waiver of fees should be considered and
decided separately from an application under CPL 1102 for assignment of counsel, as
the statutes intended. Therefore, incorporating the above referenced paragraphs as
well as the previously submitted Motion, Affidavit of Indigence and Memorandum in
Support,
PLAINTIFF RESPECTFULLY REQUEST THE COURT TO DECIDE HIS APPLICATION UNDER CPL 1101 FOR PERMISSION TO PROCEED AS A POOR PERSON FOR WAIVER OF FEES.
12. I make this application for permission to proceed as a poor person pursuant
to Section 1101 of the Civil Practice Law & Rules upon the grounds that I am unable
to pay the costs, fees and expenses necessary to prosecute my case and am unable to
obtain the funds to do so, and unless an order is entered relieving me from the
obligation to pay, I will be unable to prosecute my case.
NATURE OF CASE
13. The case involves a partnership dispute between three (3) individuals,
including myself, a brother and one other.
In 1988, my brother, the defendant Robert Jubic and I inherited property
from our father on the condition that we pay up back taxes and take out a
construction loan and make apartment units out of the old building so we could
enjoy “income for life” from the endeavor which would provide supplemental income
for us in our retirement days. At the time of the signing over of the deed, my
brother, defendant Robert Jubic, did bring to the table with him a close personal
friend of his and partner in other ventures, defendant Robert McAllister. Despite
objections from my father, myself and other family members, defendant Robert Jubic
insisted that defendant Robert McAllisters name be added to the deed as a “full 1/3
partner“ in what was supposed to be a “family venture.” The suit alleges, among
other things, theft, fraud and a wrongful diversion of funds by defendants Robert
Jubic and Robert McAllister. The complaint asks for an accounting and parturition /
forced sale of said property.
14. By way of relief, I am seeking $1,000.000 in damages and punitive fines.
(See Draft copy of Complaint attached as Ex._______)
15. I believe my case against the defendants has merit as does my former
attorney Mr James L. Coffin, as evidenced by the attached letter personally signed
by him attesting to same. (See Ex._____.)
16. I do also personally believe and in good faith allege the merit of my case
because:
a. I can prove that I am 1/3 owner of the partnership and building in question, and as proof of part-ownership of the building and shared liability & contribution regarding same, my name appears on the deed as well as on the loan from the Troy Savings Bank taken out by the partners in furtherance of the venture, as well as the accounting spreadsheet provided to me by the defendants in 2004.
b. By these documents, I can prove that I have contributed equally to said venture in sweat-equity and shared liability for those loans known to me and taken out in furtherance of the venture and repaid in full on my behalf by Defendant Robert Jubic out of partnership funds. (See spreadsheet attached)
c. I can prove that I have never received any profits from said venture, except for a few thousands dollars that was “advanced” to me “as needed” over the years when facing financial difficulties. These loans were to be taken out “as against” my future partnership earnings,..as I was being told at these times by the Defendant/partners right up until the time of the taking of this suit, that the partnership “was not making any profits.“
d. I can prove that said venture is making profits, as by the Defendants own accounts, the venture has grossed nearly $300,000 from the years 1988 to 2004. (See Spreadsheet provided by defendants in 2004 by way of accounting, attached as Ex.______)
PLAINTIFF REQUESTS A RE-CONSIDERATION OF HIS PREVIOUS APPLICATION TO THIS COURT FOR ASSIGNMENT OF COUNSEL
17. Paragraphs 1-13 above incorporated herein by reference.
18. My previous application for assignment of counsel was denied by this court
reasoning that I failed to show “a liberty interest“ that would merit assignment in
a civil case, citing Plank v County of Schenectady, 51 AD3 1283, 3rd Dept. 2008 (See
Decision & Order, pg. 2, para. 2, Ex.______.)
19. The federal courts have described a liberty interest as more than just an
interest in remaining free from confinement. The courts have found that other vital
interests are “liberty interest” protected by the Due Process Clauses, such as those
interests guaranteeing a number of individual freedoms, including the right to
personal autonomy, bodily integrity, self-dignity, and self-determination (Gray v.
Romeo, 697 F. Supp. 580 [1988]). The word liberty, the Supreme Court stated, means
something more than freedom from physical restraint. "It means freedom to go where
one may choose, and to act in such manner … as his judgment may dictate for the
promotion of his happiness … [while pursuing] such callings and avocations as may be
most suitable to develop his capacities, and give to them their highest enjoyment"
(MUNN V. ILLINOIS, 94 U.S. 113, 4 Otto 113, 24 L. Ed. 77 [1876] [Field, J., dissenting]).
20. Plaintiff submits that in order to “act in such a manner as his judgment may
dictate for the promotion of his happiness and well being “ his financial interests
are involved for the purposes of maintaining his “autonomy of self” in that, without
the financial means to keep and maintain his home, or to be free to travel or
vacation, he will be deprived of same, and will therefore be unable to develop his
capabilities for “highest enjoyment“ of same and will therefore be left “unhappy”
and financially destitute.
21. Plaintiff submits that a protected liberty interest exists in maintaining
financial solvency as same is an important and integral part of preservation of
his “self -dignity” and human autonomy.
22. The due process clause of the Fourteenth Amendment to the United States
Constitution and the similar provision contained in our State Constitution prohibit
the government from depriving a person of "life, liberty or property without due
process of law" (Constitution, Amdt XIV; NY Const art 1, § 6). Whether the
constitutional guarantee applies depends on whether the government's actions impair
a protected liberty or property interest.
23. Plaintiff contends that the State's action in denying him assignment of
counsel impairs a protected liberty and property interest in that he will be denied
his right to a full and fair hearing by learned counsel in the matter of the
wrongful taking committed upon him by the defendants concerning his personal
property (real-estate) which directly bears on his present and future financial well-
being. Plaintiffs “liberty interest” is one of maintaining his “autonomy of self”
which can only be achieved in this court by experienced counsel who will represent
his interests in the matter of the wrongful taking of his property as well as to his
present and future financial well-being.
24. Plaintiff further submits that due to his complete lack of knowledge of law
and the legal system, coupled with his mental-health and cognitive issues, he is not
a canidate for self-representation. In support of this argument, Plaintiff herein
submits a letter from his mental-health counselor that verifies and attests to same,
attached herein as (Ex.______)
(c) MOTION FOR RELIEF IN THE MATTER OF DEFENDANTS WILLFUL FAILURE TO COMPLY WITH PLAINTIFFS DISCOVERY REQUESTS
25. Per the Decision and Order of the Court dated June 16, 2009, the court did
Order the Defendants to comply with my discovery request.
26. Pursuant to this Order, the Defendants were Ordered to provide me with the
following requested documents within thirty (30) days of the date of the Order;
(a.) “Copies of all loans, liens, mortgages, etc. taken out or applied against
construction and/or repair costs of the premises alleged in the complaint.”
(b.) “Copies of all repair, inspection, maintenance and/or service records for
the premises alleged in the complaint for the time the partnership existed.”
(c.) “Copies of all current leases and rent receipts regarding the property alleged in the complaint”
(d.) “Copies of all tax records regarding the property in the complaint”
(e.) “Copies of all deeds, loans, and mortgages to all other properties, within and without the State of New York that are jointly owned by the defendants Robert Jubic and Robert McAllister, and tax records for same.”
27. As of the date of the filing of this Motion, defendants have provided me
with no items of discovery. Based on the Defendants willful failure to comply, I
move for summary judgment against them or, in the alternative, to preclude them from
any mention of the items and/or subject matter as listed in my discovery request.
WHEREFORE, I respectfully request that the court issue an ORDER granting me
(1) Permission to proceed in this matter as a poor person and
(2) for assignment of counsel
(3) For an ORDER redressing the defendants failure to comply with my discovery requests, and for any other such further relief the court may deem just and proper.
Dated:_______ ______________________________
George J Jubic, Plaintiff, Pro Se
Monday, October 5, 2009
Tuesday, August 11, 2009
Due Process, Liberty and Property Interests
Procedural Due Process
The issues: What constitute protected "liberty" or "property" interests under the Due Process Clause? When the government deprives a person of a protected interest, what process is due?
Introduction
The most obvious requirement of the Due Process Clause if that states afford certain procedures ("due process") before depriving individuals of certain interests ("life, liberty, or property").
Although it is probably the case that the framers used the phrase "life, liberty, or property" to be a shorthand for important interests, the Supreme Court adopted a more literal interpretation and requires individuals to show that the interest in question is either their life, their liberty, or their property--if the interest doesn't fall into one of those three boxes, no matter how important it is, it doesn't qualify for constitutional protection. Thus, for example, the Court has ruled that the government may severely damage an individual's reputation (by, for example, putting his name on a list of "known shoplifters") without affording process.
The Due Process Clause serves two basic goals. One is to produce, through the use of fair procedures, more accurate results: to prevent the wrongful deprivation of interests. The other goal is to make people feel that the government has treated them fairly by, say, listening to their side of the story.
The Due Process Clause is essentially a guarantee of basic fairness. Fairness can, in various cases, have many components: notice, an opportunity to be heard at a meaningful time in a meaningful way, a decision supported by substantial evidence, etc. In general, the more important the individual right in question, the more process that must be afforded. No one can be deprived of their life, for example, without the rigorous protections of a criminal trial and special determinations about aggravating factors justifying death. On the other hand, suspension of a driver's license may occur without many of the same protections.
The cases on this page demonstrate the Supreme Court's approach to key questions concerning procedural due process. Board of Regents v Roth shows how the Court has defined "property" interests for purposes of the due process clause. The case involved the decision of a public college not to renew the contract of an untenured professor. The Court concluded that the professor had no "liberty" interest in any specific teaching job, and that he had no "property" interest in his job because he lacked "a legitimate claim of entitlement" under state law to his job. The Court noted that he would have had such a claim of entitlement had he been tenured, because then the college would have had to make a specific showing of poor performance in order to sustain its dismissal. Without a legitimate claim of entitlement to his job, the Court reasoned, there is nothing to have a hearing about. Property interests, the Court stressed, must be found in the statutory or common law of the jurisdiction.
Unlike property interests which have their source in state law, the Court sees "liberty" interests as having their source in the Constitution. Deprivations of certain basic liberties (such as the freedom to travel, the freedom to live with and raise children, the freedom from incarceration, or the freedom to not be subjected to physical violence or forced medical treatment) will trigger a requirement that the government afford due process. But not every serious injury inflicted by the government is necessarily a deprivation of a liberty interest, according to the Court. In 1971, in Constantineau v Wisconsin, a case involving a governmental posting of the names of "excessive drinkers," the Court concluded that some sort of hearing had to be afforded before such a list of names could be sent out--an individual has a protected liberty interest in her good name and reputation, the Court said. However, five years later in Paul v Davis, a case involving the government's distribution of a list of "active shoplifters," the Court reversed course and held that damage to an individual's reputation--standing alone--is not deprivation of a protected liberty interest. The Court distinguished Constantineau, now finding that the individual's additional loss of a right to purchase alcohol was a key element in the outcome of that earlier case. In Vitek v Jones (1980), the Court found that due process must be afforded before an inmate in solitary confinement was transferred from a state prison to state mental hospital, where he would be forced to undego behavioral modification. The Court rejected the state's argument that inmates had already lost their liberty, so that transfer from one state institution to another shouldn't trigger a requirement of due process.
The last two cases demonstrate how the Court has balanced individual interests against government interests to determine how much process is due in specific contexts.
In Mackey v Montrym, the Court considered whether the state can suspend for 90 days without a prior hearing the driver's license of a motorist who refused to take a breathalyzer test following a motor vehicle accident. The Court, voting 5 to 4, held that the state could immediately suspend licenses in such cases. The majority gave considerable weight to the state's asserted interests in removing drunk drivers from highways as soon as possible and in providing drivers with a strong incentive to take the test. Although the Court recognized that people today have a "substantial" interest in keeping licenses to drive, it also stressed that the risk of erroneous deprivation was low because only rarely will there be a real dispute as to whether the motorist refused or did not refuse to take the breathalyzer test. The dissenters saw a greater likelihood of factual disputes (e.g., did the refusal follow a clear demand with a warning of the consequences?) and noted that the state's argument about getting drunks off the road fast was undercut by the fact that a person who failed the breathalyzer test would be allowed to continue to drive until his trial date.
In Cleveland Board of Education v Loudermill (1985), the Court considered whether two school district employees could be suspended without pay until hearings were held to determine whether they had, in fact, violated school district rules as the district had alleged. The Board of Education argued that since it never had to give its employees ANY right to a hearing, it should have the flexibility to give them a right to a hearing, but allow a pre-hearing suspension without pay. The Court rejected this "bitter-with- the-sweet" approach, and said that the minimum process due is determined as a matter of federal constitutional law, not state statutory law.
Aspects of Due Process ("Fundamental Fairness")
1. The government must provide notice of the charges against you.
2. The government must be able to show that there is an articulated (non-vague) standard of conduct which you are accused of violating.
3. The government must provide you with an opportunity to rebut their charges against you in a meaningful way and at a meaningful time (the "hearing requirement").
4. In order to sustain its position (i.e., its deprivation of your liberty or property), the government must establish--at a minimum--that there is substantial and credible evidence supporting its charges.
5. The government must provide some explanation to the individual for the basis of any adverse finding.
Some examples of procedural protections that may be required for certain types of deprivations:
1. Elevated burdens of proof that the government must satisfy, such as "beyond a reasonable doubt" (criminal cases) or "clear and convincing evidence" (termination of parental rights).
2. The right to counsel.
3. The right to a pre-deprivation hearing.
4. The right to cross-examine witnesses.
5. The right to have a neutral person review an adverse decision.
6. The right to recover compensation for a wrongful deprivation.
7. The right to be present when adverse evidence is presented to the fact-finder.
Due Process Clause (14th Amendment)
[No State shall] deprive any person of life, liberty, or property, without due process of law.
How to prove a procedural due process violation:
LIFE
LIBERTY
PROPERTY
1. Show that the government has deprived* you of a non-trivial protected interest, one that the Supreme Court would recognize as falling into one of the three boxes above.
*The deprivation by the government must not be based on simple negligence (e.g., prison officials losing the personal property of an inmate.)
(Note: Critics of this atomistic approach believe that it would be more consistent with framers' intent (and more sensible) to simply require a showing of a governmental deprivation that caused a serious injury.)
2. Show that your loss of the process you claim is owed you (taking into account the seriousness of your deprivation and including the added risk of an erroneous deprivation) outweighs the government's interests in not affording the process in question.
Cases
What is a protected "property" interest?
Board of Regents v Roth (1972)
What is a protected "liberty" interest?
Wisconsin v Constantineau (1971)
Paul v Davis (1976)
Vitek v Jones (1980)
The balancing test: What process is due?
Mackey v Montrym (1979)
Cleveland Bd. of Educ. v Loudermill (1985)
CONSTANTINEAU CELEBRATES HER
SUPREME COURT VICTORY
Norma Constantineau, above, challenged a Wisconsin law that allowed the chief of police to identify her as "an excessive drinker" and deny her the right to buy alcohol. Constantineau successfully argued that the due process clause entitled her to a hearing before the state could post her name on the "excessive drinker" list.
To explore the meaning of procedural due process in the context of student punishment, suspension, and expulsion cases see:
Due Process Rights of Students
Three student procedural due process cases:
Goss v. Lopez (1975)
Ingraham v. Wright (1977)
Horowitz v. Board of Curators, University of Missouri (1978)
UMKC School of Medicine, attended by Charlene Horowitz until her expulsion, which led to a procedural due process challenge decided in Horowitz v Board of Curators, University of Missouri.
Questions
1. Who is protected by the Due Process Clause? Does it protect, for example, aliens?
2. How does the Court determine whether an individual interest is a property interest within the meaning of the Due Process Clause? What might create "a legitimate claim of entitlement in law"?
3. How does the Court determine whether an individual interest is a liberty interest within the meaning of the Due Process Clause? Should damage to one's reputation be enough to trigger or due process, or is the Court right in insisting upon a showing of damage to reputation plus the loss of some traditionally recognized right (such as the right to purchase alcohol, in Constantineau)?
4. If a state might create property interests through contracts, why can it not at the same time limit the process it will afford when it takes away those interests it has created?
5. What two factors does the Court look to in weighing an individual interest to determine how much process must be afforded before it is taken away?
6. In weighing an individual interest to determine the amount of process to be afforded, should we look at the importance of the interest in question to the particular litigant before the court, or instead look at the interest's importance to the category of persons who might object to its deprivation by the government?
7. If the government never had to create a property right in the first place, why shouldn't it be free to create the property right ("the legitimate claim of entitlement"), but at the same time limit the amount of process it will extend?
"John TV"
Cities trying to combat prostitution have tried an innovative approach: "John TV." Believing that the potential embarrassment of being identified on local access television as someone who has attempted to solicit a prostitute will discourage persons from seeking prostitution services, some cities have televised mugshots of persons arrested, but not yet convicted, of soliciting prostitution. Is such a scheme consistent with the due process clause?
Exploring Constitutional Conflicts Homepage
Click on title above to go there; http://www.law.umkc.edu/faculty/projects/FTRIALS/conlaw/proceduraldueprocess.html
The issues: What constitute protected "liberty" or "property" interests under the Due Process Clause? When the government deprives a person of a protected interest, what process is due?
Introduction
The most obvious requirement of the Due Process Clause if that states afford certain procedures ("due process") before depriving individuals of certain interests ("life, liberty, or property").
Although it is probably the case that the framers used the phrase "life, liberty, or property" to be a shorthand for important interests, the Supreme Court adopted a more literal interpretation and requires individuals to show that the interest in question is either their life, their liberty, or their property--if the interest doesn't fall into one of those three boxes, no matter how important it is, it doesn't qualify for constitutional protection. Thus, for example, the Court has ruled that the government may severely damage an individual's reputation (by, for example, putting his name on a list of "known shoplifters") without affording process.
The Due Process Clause serves two basic goals. One is to produce, through the use of fair procedures, more accurate results: to prevent the wrongful deprivation of interests. The other goal is to make people feel that the government has treated them fairly by, say, listening to their side of the story.
The Due Process Clause is essentially a guarantee of basic fairness. Fairness can, in various cases, have many components: notice, an opportunity to be heard at a meaningful time in a meaningful way, a decision supported by substantial evidence, etc. In general, the more important the individual right in question, the more process that must be afforded. No one can be deprived of their life, for example, without the rigorous protections of a criminal trial and special determinations about aggravating factors justifying death. On the other hand, suspension of a driver's license may occur without many of the same protections.
The cases on this page demonstrate the Supreme Court's approach to key questions concerning procedural due process. Board of Regents v Roth shows how the Court has defined "property" interests for purposes of the due process clause. The case involved the decision of a public college not to renew the contract of an untenured professor. The Court concluded that the professor had no "liberty" interest in any specific teaching job, and that he had no "property" interest in his job because he lacked "a legitimate claim of entitlement" under state law to his job. The Court noted that he would have had such a claim of entitlement had he been tenured, because then the college would have had to make a specific showing of poor performance in order to sustain its dismissal. Without a legitimate claim of entitlement to his job, the Court reasoned, there is nothing to have a hearing about. Property interests, the Court stressed, must be found in the statutory or common law of the jurisdiction.
Unlike property interests which have their source in state law, the Court sees "liberty" interests as having their source in the Constitution. Deprivations of certain basic liberties (such as the freedom to travel, the freedom to live with and raise children, the freedom from incarceration, or the freedom to not be subjected to physical violence or forced medical treatment) will trigger a requirement that the government afford due process. But not every serious injury inflicted by the government is necessarily a deprivation of a liberty interest, according to the Court. In 1971, in Constantineau v Wisconsin, a case involving a governmental posting of the names of "excessive drinkers," the Court concluded that some sort of hearing had to be afforded before such a list of names could be sent out--an individual has a protected liberty interest in her good name and reputation, the Court said. However, five years later in Paul v Davis, a case involving the government's distribution of a list of "active shoplifters," the Court reversed course and held that damage to an individual's reputation--standing alone--is not deprivation of a protected liberty interest. The Court distinguished Constantineau, now finding that the individual's additional loss of a right to purchase alcohol was a key element in the outcome of that earlier case. In Vitek v Jones (1980), the Court found that due process must be afforded before an inmate in solitary confinement was transferred from a state prison to state mental hospital, where he would be forced to undego behavioral modification. The Court rejected the state's argument that inmates had already lost their liberty, so that transfer from one state institution to another shouldn't trigger a requirement of due process.
The last two cases demonstrate how the Court has balanced individual interests against government interests to determine how much process is due in specific contexts.
In Mackey v Montrym, the Court considered whether the state can suspend for 90 days without a prior hearing the driver's license of a motorist who refused to take a breathalyzer test following a motor vehicle accident. The Court, voting 5 to 4, held that the state could immediately suspend licenses in such cases. The majority gave considerable weight to the state's asserted interests in removing drunk drivers from highways as soon as possible and in providing drivers with a strong incentive to take the test. Although the Court recognized that people today have a "substantial" interest in keeping licenses to drive, it also stressed that the risk of erroneous deprivation was low because only rarely will there be a real dispute as to whether the motorist refused or did not refuse to take the breathalyzer test. The dissenters saw a greater likelihood of factual disputes (e.g., did the refusal follow a clear demand with a warning of the consequences?) and noted that the state's argument about getting drunks off the road fast was undercut by the fact that a person who failed the breathalyzer test would be allowed to continue to drive until his trial date.
In Cleveland Board of Education v Loudermill (1985), the Court considered whether two school district employees could be suspended without pay until hearings were held to determine whether they had, in fact, violated school district rules as the district had alleged. The Board of Education argued that since it never had to give its employees ANY right to a hearing, it should have the flexibility to give them a right to a hearing, but allow a pre-hearing suspension without pay. The Court rejected this "bitter-with- the-sweet" approach, and said that the minimum process due is determined as a matter of federal constitutional law, not state statutory law.
Aspects of Due Process ("Fundamental Fairness")
1. The government must provide notice of the charges against you.
2. The government must be able to show that there is an articulated (non-vague) standard of conduct which you are accused of violating.
3. The government must provide you with an opportunity to rebut their charges against you in a meaningful way and at a meaningful time (the "hearing requirement").
4. In order to sustain its position (i.e., its deprivation of your liberty or property), the government must establish--at a minimum--that there is substantial and credible evidence supporting its charges.
5. The government must provide some explanation to the individual for the basis of any adverse finding.
Some examples of procedural protections that may be required for certain types of deprivations:
1. Elevated burdens of proof that the government must satisfy, such as "beyond a reasonable doubt" (criminal cases) or "clear and convincing evidence" (termination of parental rights).
2. The right to counsel.
3. The right to a pre-deprivation hearing.
4. The right to cross-examine witnesses.
5. The right to have a neutral person review an adverse decision.
6. The right to recover compensation for a wrongful deprivation.
7. The right to be present when adverse evidence is presented to the fact-finder.
Due Process Clause (14th Amendment)
[No State shall] deprive any person of life, liberty, or property, without due process of law.
How to prove a procedural due process violation:
LIFE
LIBERTY
PROPERTY
1. Show that the government has deprived* you of a non-trivial protected interest, one that the Supreme Court would recognize as falling into one of the three boxes above.
*The deprivation by the government must not be based on simple negligence (e.g., prison officials losing the personal property of an inmate.)
(Note: Critics of this atomistic approach believe that it would be more consistent with framers' intent (and more sensible) to simply require a showing of a governmental deprivation that caused a serious injury.)
2. Show that your loss of the process you claim is owed you (taking into account the seriousness of your deprivation and including the added risk of an erroneous deprivation) outweighs the government's interests in not affording the process in question.
Cases
What is a protected "property" interest?
Board of Regents v Roth (1972)
What is a protected "liberty" interest?
Wisconsin v Constantineau (1971)
Paul v Davis (1976)
Vitek v Jones (1980)
The balancing test: What process is due?
Mackey v Montrym (1979)
Cleveland Bd. of Educ. v Loudermill (1985)
CONSTANTINEAU CELEBRATES HER
SUPREME COURT VICTORY
Norma Constantineau, above, challenged a Wisconsin law that allowed the chief of police to identify her as "an excessive drinker" and deny her the right to buy alcohol. Constantineau successfully argued that the due process clause entitled her to a hearing before the state could post her name on the "excessive drinker" list.
To explore the meaning of procedural due process in the context of student punishment, suspension, and expulsion cases see:
Due Process Rights of Students
Three student procedural due process cases:
Goss v. Lopez (1975)
Ingraham v. Wright (1977)
Horowitz v. Board of Curators, University of Missouri (1978)
UMKC School of Medicine, attended by Charlene Horowitz until her expulsion, which led to a procedural due process challenge decided in Horowitz v Board of Curators, University of Missouri.
Questions
1. Who is protected by the Due Process Clause? Does it protect, for example, aliens?
2. How does the Court determine whether an individual interest is a property interest within the meaning of the Due Process Clause? What might create "a legitimate claim of entitlement in law"?
3. How does the Court determine whether an individual interest is a liberty interest within the meaning of the Due Process Clause? Should damage to one's reputation be enough to trigger or due process, or is the Court right in insisting upon a showing of damage to reputation plus the loss of some traditionally recognized right (such as the right to purchase alcohol, in Constantineau)?
4. If a state might create property interests through contracts, why can it not at the same time limit the process it will afford when it takes away those interests it has created?
5. What two factors does the Court look to in weighing an individual interest to determine how much process must be afforded before it is taken away?
6. In weighing an individual interest to determine the amount of process to be afforded, should we look at the importance of the interest in question to the particular litigant before the court, or instead look at the interest's importance to the category of persons who might object to its deprivation by the government?
7. If the government never had to create a property right in the first place, why shouldn't it be free to create the property right ("the legitimate claim of entitlement"), but at the same time limit the amount of process it will extend?
"John TV"
Cities trying to combat prostitution have tried an innovative approach: "John TV." Believing that the potential embarrassment of being identified on local access television as someone who has attempted to solicit a prostitute will discourage persons from seeking prostitution services, some cities have televised mugshots of persons arrested, but not yet convicted, of soliciting prostitution. Is such a scheme consistent with the due process clause?
Exploring Constitutional Conflicts Homepage
Click on title above to go there; http://www.law.umkc.edu/faculty/projects/FTRIALS/conlaw/proceduraldueprocess.html
Monday, August 3, 2009
Suing Gov't Agents Generally
Govt agents not immune to suit if acting outside the bounds of their legal authority
Click on title above to go to website where the links are clickable
INSTRUCTIONS: 5.12. Sue Government/Agent In Equity for Violation of Fiduciary Duty, Trespass, and “Truth Evasion”
Resources to use against employers or federal agencies who discriminate:
Westfall Act, 28 U.S.C. 2679-Deals with suing federal employees for torts within the authority of their office. Acts outside the authority are precluded from suit against the government and instead require a personal suit against the employee.
Equal Employment Opportunity Commission (EEOC)-will litigate against employers at public expense if they discriminate against you because of your decision not to withhold or pay taxes or obtain or use a Socialist Security Number because of your religious beliefs
EEOC Laws, Regulations, and Policy Guidance
EEOC: Filing a Charge (against an employer)
Title 42, Chapter 21, United States Code: Civil Rights
"religion" defined
Great IRS Hoax, Section 1.9.1: "Government as idolatry/religion"
Secrets of the Legal Industry-by Richard Cornforth. Instructions on how to sue people who violate your rights.
Federal Civil Procedure Before Trial-Rutter Group
Federal Civil Trials and Evidence-Rutter Group
Related references:
Rule 4 of Federal Rules of Civil Procedure (FRCP): Summons
Tucker Act, 28 U.S.C. §1491-claims against the United States arising out of contract
42 U.S.C. §1983 Civil Action for Deprivation of Rights
Hafer v. Melo, 502 U.S. 21 (1991)-Supreme Court held that state officials acting outside the color of law may be held personally liable for the injuries or torts they case and that official or sovereign immunity may not be asserted.
Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971)-pro per successfully sued six federal narcotics agents for acting outside the law. Official immunity asserted but denied.
Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894 (1978)- federal agent of Dept. of Agriculture not entitled to absolute immunity from suit when acting outside of lawful authority and violating constitutional rights.
Bell v. Hood, 327 U.S. 678 (1946)-FBI agents who violated Constitutional rights of a petitioner were held personally liable and not afforded official immunity.
Belknap v. Schild, 161 U.S. 10 (1896)-patent infringement by federal officers. Supreme court said they could be held personally liable and remanded case for another trial.
NOTE: When private parties acting for a non-governmental employer or financial institution improperly honor a Notice of Lien or a Notice of Levy, they are acting as "voluntary government agents under color of law" and can be personally held responsible for damages and violation of Constitutional rights.
The following cite establishes below that the government may not assert sovereign immunity to protect itself from acts that are outside the law. It establishes why we should work hard to hold our public servants liable for violations of law in the illegal collection of federal income taxes. :
“… the maxim that the King can do no wrong has no place in our system of government; yet it is also true, in respect to the State itself, that whatever wrong is attempted in its name is imputable to its government and not to the State, for, as it can speak and act only by law, whatever it does say and do must be lawful. That which therefore is unlawful because made so by the supreme law, the Constitution of the United States, is not the word or deed of the State, but is the mere wrong and trespass of those individual persons who falsely spread and act in its name."
"This distinction is essential to the idea of constitutional government. To deny it or blot it out obliterates the line of demarcation that separates constitutional government from absolutism, free self- government based on the sovereignty of the people from that despotism, whether of the one or the many, which enables the agent of the state to declare and decree that he is the state; to say 'L'Etat, c'est moi.' Of what avail are written constitutions, whose bills of right, for the security of individual liberty, have been written too often with the blood of martyrs shed upon the battle-field and the scaffold, if their limitations and restraints upon power may be overpassed with impunity by the very agencies created and appointed to guard, defend, and enforce them; and that, too, with the sacred authority of law, not only compelling obedience, but entitled to respect? And how else can these principles of individual liberty and right be maintained, if, when violated, the judicial tribunals are forbidden to visit penalties upon individual offenders, who are the instruments of wrong, whenever they interpose the shield of the state? The doctrine is not to be tolerated. The whole frame and scheme of the political institutions of this country, state and federal, protest against it. Their continued existence is not compatible with it. It is the doctrine of absolutism, pure, simple, and naked, and of communism which is its twin, the double progeny of the same evil birth."
[Poindexter v. Greenhow, 114 U.S. 270; 5 S.Ct. 903 (1885)]
In order that we can have a basis to sue the government, our proceeding must proceed on the basis of equity and not law. There is no legal basis in the Internal Revenue code that authorizes a “nontaxpayer” to sue, jail, or punish an agent for wrong doing. Furthermore, if our greedy Congress wants to steal our money and exceed its jurisdiction, do you think it would pass a law to punish wrongdoers who try to collect taxes illegally? We must therefore sue as a tort by suing the individual agent and not the state or government that he works for. In doing so, we must show that the agent was acting outside the bounds of his delegated authority and outside the lawful bounds of his employment. If the government proves that the agent was acting within his lawful authority, they will try to invoke what is called the Westfall Act, 28 U.S.C. §2679, and substitute themselves in place of the individual defendant under 28 U.S.C. §2679(d )(1), which makes the litigation against the government and not the agent. This makes it far less likely that you will win because then you need permission from the government in order to sue and you will be litigating against an enemy with relatively unlimited resources compared to your own.
We must sue the individual IRS agent in equity jurisdiction and the state or government may not invoke sovereign immunity or the Eleventh Amendment and substitute itself for such a party, because the injuring party was acting outside the law and the authority of the state. Here’s a cite from Poindexter v. Greenhow, 114 U.S. 270; 5 S.Ct. 903 (1885) confirming this:
“The second head of that classification is thus described: 'Another class of cases is where an individual is sued in tort for some act injurious to another in regard to person or property, to which his defense is that he has acted under the orders of the government. 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.' And in illustration of this principle reference was made to Mitchell v. Harmony, 13 How. 115; Bates v. Clark, 95 U.S. 204 ; Meigs v. McClung's Lessee, 9 Cranch, 11; Wilcox v. Jackson, 13 Pet. 498; Brown v. Huger, 21 How. 315; [114 U.S. 270, 288] Grisar v. McDowell, 6 Wall. 363; and U. S. v Lee, 106 U.S. 196 ; S. C. 1 SUP. CT. REP. 240.”
Most of the remedies identified in the I.R.C. are for taxpayers, which most of us aren’t. The most important exception to this rule is found in 26 U.S.C. §7426, which relates to Civil Actions by Persons Other than “Taxpayers”. A person who is a "nontaxpayer", if he needs statutory standing to sue, should use 26 U.S.C. §7426 and may not use any section that refers to "taxpayers" as authority to sue in a civil action involving taxation. The reasons for this is described in the article below:
http://famguardian.org/Subjects/Taxes/Articles/TaxpayerVNontaxpayer.htm
Bouvier’s Law Dictionary, Vol. II, Third Revision, Eighth Edition, 1914, pp. 3230-3238 defines how to recover income taxes collected illegally and against a person under duress who is a nontaxpayer under the definition of “income tax”.
"Income tax: In order to invoke the powers of a court of equity to restrain the collection of illegal taxes, the case must be brought within the well recognized foundations of equitable jurisdiction [* * *] and it must clearly appear not only that the tax is illegal, but that the property owner has no adequate remedy at law, and that there are special circumstances bringing the case under some recognized head of equity jurisdiction…” [Cites omitted.]”
As we pointed out in section 2.1, people who hold public office or work for the government are recipients of the public trust and must maintain the highest ethical and moral standards in all their dealings with the public as “public servants”. In the legal field, this kind of responsibility is referred to as “fiduciary duty”. Fiduciary duty is defined as follows:
Fiduciary duty: A duty to act for someone else’s benefit, while subordinating one’s personal interests to that of the other person. It is the highest standard of duty implied by law (e.g. trustee, guardian).
[(Black’s Law Dictionary, Sixth Edition, page 625)]
Fiduciary or confidential relation: A very broad term embracing both technical and fiduciary relations and those informal relations which exist wherever one person trusts in or relies upon another. One founded on trust or confidence reposed by one person in the integrity and fidelity of another. Such relationship arises whenever confidence is reposed on one side, and domination and influence result on the other; the relation can be legal, social, domestic, or merely personal. Heilman’s Estate, Matter of, 37 Ill.App.3d 390, 345 N.E.2d 536, 540.
A relation subsisting between two persons in regard to a business, contract, or piece of property, or in regard to the general business or estate of one of them, of such a character that each must repose trust and confidence in the other and must exercise a corresponding degree of fairness and good faith. Out of such a relation, the law raises the rule that neither party may exert influence or pressure upon the other, take selfish advantage of his trust, or deal with the subject-matter of the trust in such a way as to benefit himself or prejudice the other except in the exercise of the utmost good faith and with the full knowledge and consent of that other, business shrewdness, hard bargaining, and astuteness to take advantage of the forgetfulness or negligence of another being totally prohibited as between persons standing in such a relation to each other. Examples of fiduciary relations are those existing between attorney and client, guardian and ward, principal and agent, executor and heir, trustee and cestui que trust, landlord and tenant, etc.
[Black’s Law Dictionary, Sixth Edition, page 625]
Examples of persons who must act in a fiduciary capacity are all those persons who work at financial institutions, spouses, attorneys, government employees, and elected or appointed political officials. If you attempt to prosecute an IRS employee for malfeasance, fraud, or illegal taking of taxes, it will be much easier to get a conviction with the jury if you focus on the fiduciary duty and high moral standard of care they have to the public at large. These fiduciary duties give rise to a "contract" or "implied contract" cognizable under the Tucker Act, 28 U.S.C. §1491. The contract is the Constitution, and the obligation to obey the contract arises out of the oath of public office taken by "public officers" pursuant to 5 U.S.C. §3331. Remember item X in the Code of Ethics for Government Service, part of Public Law 96-303, which we talked about earlier in section 2.1 of the Great IRS Hoax.
“X. Uphold these principles, ever conscious that public office is a public trust.”
Also remember the content of Executive Order 12731, Part 1, Section 101, item (a) in that same section:
"(a) Public service is a public trust, requiring employees to place loyalty to the Constitution, the laws, and ethical principles above private gain.”
The federal courts agree with the above conclusions. Below is one significant example of that:
The right to sue a tax collector to recover back taxes illegally exacted is derived from the common-law and does not depend on statute. The rule is this. If the payment is made voluntarily, there can be no recovery. But if the payment is made under compulsion and with protest, sufficient to notify the collector that he will be sued to recover it back, he is personally liable whether he has covered the money into the treasury or not.
There is no statute of the United States expressly giving the right to sue a tax collector to recover back taxes illegally exacted, but the common law has been greatly modified by various statutes in this respect. These statutes recognize the right and by necessary implication grant it as to suits against federal tax collectors.
“A statute will not be construed as taking away a common-law right existing at the date of its enactment, unless that result is imperatively required.” Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 354, 51 L.Ed. 553, 9 Ann. Cas. 1075. “All laws should receive a sensible construction. General terms should be so limited to their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language, which would avoid results of this character.” U.S. v. Kirby, 7 Wall. 482, 486, 19 L.Ed. 278; Lau Ow Bew v. U.S., 144 U.S. 47, 12 S.Ct. 517, 36 L.Ed. 340; Jacobson v. Mass., 197 U.S. 11, 26 S.Ct. 358, 49 L.Ed. 643, 3 Ann.Cas. 765.”
[White v. Hopkins, 41 F.2d 159 (1931)]
It is quite common for IRS revenue agents to hide behind a cloak of secrecy and anonymity in order to evade being prosecuted for their misconduct. For instance, IRS agents you will talk to on the phone will refuse to give their real last name, and refer to themselves only by number. They do this because this makes them more difficult to prosecute for wrongdoing or bad advice. These same agents also have a habit of putting fictitious names on the correspondence they sign for the same reason. If you decide to prosecute one of these anonymous agents and find it difficult to track him or her down, be advised that an easier approach may be to just prosecute his supervisor, who is easier to identify. For instance, you might prosecute the Commissioner of the Internal Revenue Service, for instance. However, there must be a causal relationship between the wrongdoing committed by an IRS employee and his supervisor. One such causal relationship, for instance, could be that the employee was not properly trained or supervised and therefore was either negligent or malicious. Below is what one federal court said about this subject:
The Defendants, as IRS agents, are not prosecutors, nor are the cases granting absolute immunity to prosecutors helpful to them. Rather, their duties are merely investigative. They gather facts and refer cases to prosecutors, who then decide whether or not to prosecute. Considering these duties, an IRS agent is analogous to a complaining witness at common law—both are detached from the judicial process by the interposition of the prosecutor. For this reason, a complaining witness was not entitled to absolute immunity at common law. [Cites omitted.] It follows that the Defendants, IRS agents, should not be entitled to absolute immunity on the same basis.
Accordingly, we find that when IRS agents investigate and refer cases for criminal investigations, they do not enjoy absolute immunity for their actions. Accord, Cameron v. I.R.S., 773 F.2d 126, 128 (7th Cir. 1985) (IRS agents are not entitled to absolute immunity).
A supervisor can be held liable for civil rights violations where his “conduct is causally related to constitutional violation committed by his subordinate.” Greason v. Kemp, 891 F.2d 836 (citing, Wilson v. Attaway, 757 F.2d 1227, 1241 (11th Cir. 1985)) (personal participation is not required to impose liability for a civil rights deprivation. There must be some causal connection between the actions of the superior and the alleged deprivation); see also Rizzo v. Goode, 423 U.S. 362, 375-76, 96 S.Ct. 598, 606 L.Ed.2d 561, 572 (1976) (for liability under §1983, supervisory officials have direct responsibility for actions of officials who had engaged in misconduct).
[Heller v. Plave, 743 F.Supp. 1553 (1990)]
When the IRS prosecutes individuals for tax evasion, they use the following criteria, right from their Internal Revenue Manual Part 9, Chapter 1, Section 3 found at http://www.irs.gov/irm/part9/ch01s03.html:
9.1.3.3.2.2 (08-11-2003)
IRC §7201—
Elements of the Offense
The elements of the offense of willfully attempting in any manner to evade or defeat any tax or the payment of any tax are the same, but the courts have interpreted the terms differently in some instances. The differences are noted in the explanation. The elements of the offense are:
Additional tax due and owing.
An attempt in any manner to evade or defeat any tax.
Willfulness.
9.1.3.3.2.2.2 (08-11-2003)
Attempt to Evade or Defeat Any Tax
The substance of the offense under IRC 7201 is the term "attempt in any manner" . The statute does not define attempt, nor does it limit or define the means or methods by which the attempt to evade or defeat any tax may be accomplished.
However, it has been judicially determined that the term "attempt" implies some affirmative action or the commission of some overt act. The actual filing of a false or fraudulent return is not requisite for the commission of the offense though the filing of such a return is the usual attempt to evade or defeat the tax. A false statement made to Treasury agents for the purpose of concealing unreported income has also been judicially determined to be an attempt to evade or defeat the tax.
The willful omission of a duty or the willful failure to perform a duty imposed by statute does not per se constitute an attempt to evade or defeat. However, a willful omission or failure (such as a willful failure to make and file a return) when coupled with affirmative acts or conduct from which an attempt may be inferred would constitute an attempt. In the case of Spies v. United States , the Supreme Court gave certain illustrations of acts or conduct, which may infer "the attempt to evade or defeat any tax" ; such as:
Keeping a double set of books.
Making false entries, alterations, invoices, or documents.
Destroying books or records.
Concealing assets or covering up sources of income .
Handling one's affairs to avoid making the records usual in transactions of the kind.
Any conduct, the likely effect of which would be to mislead or to conceal.
Attempt does not mean that one whose efforts are successful cannot commit the crime of willful attempt. The crime is complete when the attempt is made and nothing is added to its criminality by success or consummation, as would be the case with respect to attempted murder. It has been held that "attempts cover both successful and unsuccessful endeavors or efforts." As the courts have stated, "The real character of the offense lies, not in the failure to file a return or in the filing of a false return, but rather in the attempt" to evade any tax.
It is well settled that a separate offense may be committed with respect to each year. Therefore, an attempt for 1 year is a separate offense from an attempt for a different year.
There may also be more than one violation in one year resulting from the same acts such as the willful attempt to evade the payment of tax and the willful attempt to evade tax. Likewise, there may be charged a willful attempt to evade tax and a willful failure to file a return for the same year.
In an attempt to evade or defeat the payment of any tax, the mere failure or willful failure to pay any tax does not constitute an attempt to evade or defeat the payment of any tax. The comments set out above with respect to attempts also apply to this offense. The attempt implies some affirmative action or the commission of some overt act. Examples of such action or conduct relating to the attempted evasion of the payment of the tax are found in the Giglio case. These are:
Concealing assets.
Reporting income through others.
Misappropriating, converting, and diverting corporate assets.
Filing late returns.
Failing to withhold taxes as required by law.
Filing false declarations of estimated taxes.
Filing false tentative corporate returns.
9.1.3.3.2.2.3 (07-29-1998)
Willfulness
The attempt in any manner to evade or defeat any tax must be willful. Willfulness has been defined as an act or conduct done with a bad or evil purpose. Mere understatement of income and the filing of an incorrect return does not in itself constitute willful attempted tax evasion. The offense is made out when conduct such as exemplified in the Spies case (supra) is present.
Courts have held that disbursement of available funds to creditors other than the government , or to corporate stockholders is not of itself an attempt to evade or defeat payment of taxes.
This definition of willfulness applies to all Title 26 offenses where willfulness is an element, unless stated otherwise.
Why is this relevant when applied to prosecuting the IRS and revenue officers? Because we can apply the same standards for concealment and fraud against the IRS when prosecuting them for breach of fiduciary duty. We can then focus on “extortion under the color of office” and “theft” in front of the jury and apply nearly the same standards. We therefore summarize the elements that would make up a good claim of breach of fiduciary duty:
Elements of “extortion under the color of office”:
1. A refund was due and owing or a lack of liability should have been disclosed but wasn’t.
2. There was an attempt to evade or defeat the refund or disclosure of the laws and lack of liability that would facilitate the refund or lack of liability to file.
3. Willfulness.
Attempt to evade or defeat the truth about lack of liability:
1. A false statement made by Treasury agents for the purpose of concealing lack of liability or lawful authority is a clear attempt evade or defeat the truth.
2. The willful omission of a duty or the willful failure to perform a duty imposed by the fiduciary relations ships does not per se constitute an attempt to evade or defeat the truth about nonliability. However, a willful omission or failure (such as a willful failure to make or respond to a disclosure of the truth about nonliability) when coupled with affirmative acts or conduct from which an attempt may be inferred would constitute an attempt.
A. Making false entries, alterations, invoices, or documents.
B. Destroying books or records.
C. Concealing laws or covering up their implementing regulations or lack thereof.
D. Handling one's affairs to avoid making the records usual in transactions of the kind.
E. Any conduct, the likely effect of which would be to mislead or to conceal.
3. Attempt does not mean that one whose efforts are successful cannot commit the crime of willful attempt. The crime is complete when the attempt is made and nothing is added to its criminality by success or consummation, as would be the case with respect to attempted murder. It has been held that "attempts cover both successful and unsuccessful endeavors or efforts." As the courts have stated, "The real character of the offense lies, not in the failure to disclose the truth, but rather in the attempt" to evade disclosing lack of liability for any tax or provide the refund requested.
4. In an attempt to evade or defeat the payment of any tax, the mere failure or willful failure to pay any tax does not constitute an attempt to evade or defeat the payment of any tax. The comments set out above with respect to attempts also apply to this offense. The attempt implies some affirmative action or the commission of some overt act. Examples of such action or conduct relating to the attempted evasion of the payment of the tax are found in the Giglio case. These are:
A. Concealing laws or regulations or discussing either.
B. Reporting information or rendering assistance through agents who are not qualified or who do not know the truth about the law to prevent the subject of the law from coming up in interactions with a Citizen.
C. Misappropriating, converting, and diverting private assets for personal gain or as illegal tax revenues (extortion under the color of office).
D. Filing inadequate or incomplete responses to taxpayer inquiries about their lack of liability..
E. Completely ignoring or not responding to taxpayer affidavits of fact about their lack of liability and not refuting such nonliability with quotes of the law.
F. Failing to refund taxes not owed as required by law.
G. Sending false or frivolous CP notices in response to legitimate inquiries by Citizens about their liability and in fulfillment of their rights to due process under the Administrative Procedures Act, 5 U.S.C. 556(d).
This is good stuff for stirring up mud on your favorite IRS agent when you drag his ass in court, folks! We invite you to add to this.
Judicial jurisdiction over agency acts and omissions that adversely affective substantive and procedural due process rights are prescribed by 5 U.S.C. §702 and 28 U.S.C. §1361:
5 USCS § 702 (2002)
§ 702. Right of review
A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States: Provided, That any mandatory or injunctive decree shall specify the Federal officer or officers (by name or by title), and their successors in office, personally responsible for compliance. Nothing herein (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground; or (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.
--------------------------------------------------------------------------------
28 USCS § 1361 (2002)
§ 1361. Action to compel an officer of the United States to perform his duty
The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.
These two sections work together. Original jurisdiction for judicial review of agency actions under 5 U.S.C. §§ 701-706 is vested in circuit courts; the mandamus section at 28 U.S.C. § 1361 was enacted to expand jurisdiction to district courts. The scope of judicial authority is prescribed by 5 U.S.C. § 706:
5 USCS § 706 (2002)
§ 706. Scope of review
To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall--
(1) compel agency action unlawfully withheld or unreasonably delayed; and
(2) hold unlawful and set aside agency action, findings, and conclusions found to be--
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.
In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be
Click on title above to go to website where the links are clickable
INSTRUCTIONS: 5.12. Sue Government/Agent In Equity for Violation of Fiduciary Duty, Trespass, and “Truth Evasion”
Resources to use against employers or federal agencies who discriminate:
Westfall Act, 28 U.S.C. 2679-Deals with suing federal employees for torts within the authority of their office. Acts outside the authority are precluded from suit against the government and instead require a personal suit against the employee.
Equal Employment Opportunity Commission (EEOC)-will litigate against employers at public expense if they discriminate against you because of your decision not to withhold or pay taxes or obtain or use a Socialist Security Number because of your religious beliefs
EEOC Laws, Regulations, and Policy Guidance
EEOC: Filing a Charge (against an employer)
Title 42, Chapter 21, United States Code: Civil Rights
"religion" defined
Great IRS Hoax, Section 1.9.1: "Government as idolatry/religion"
Secrets of the Legal Industry-by Richard Cornforth. Instructions on how to sue people who violate your rights.
Federal Civil Procedure Before Trial-Rutter Group
Federal Civil Trials and Evidence-Rutter Group
Related references:
Rule 4 of Federal Rules of Civil Procedure (FRCP): Summons
Tucker Act, 28 U.S.C. §1491-claims against the United States arising out of contract
42 U.S.C. §1983 Civil Action for Deprivation of Rights
Hafer v. Melo, 502 U.S. 21 (1991)-Supreme Court held that state officials acting outside the color of law may be held personally liable for the injuries or torts they case and that official or sovereign immunity may not be asserted.
Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971)-pro per successfully sued six federal narcotics agents for acting outside the law. Official immunity asserted but denied.
Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894 (1978)- federal agent of Dept. of Agriculture not entitled to absolute immunity from suit when acting outside of lawful authority and violating constitutional rights.
Bell v. Hood, 327 U.S. 678 (1946)-FBI agents who violated Constitutional rights of a petitioner were held personally liable and not afforded official immunity.
Belknap v. Schild, 161 U.S. 10 (1896)-patent infringement by federal officers. Supreme court said they could be held personally liable and remanded case for another trial.
NOTE: When private parties acting for a non-governmental employer or financial institution improperly honor a Notice of Lien or a Notice of Levy, they are acting as "voluntary government agents under color of law" and can be personally held responsible for damages and violation of Constitutional rights.
The following cite establishes below that the government may not assert sovereign immunity to protect itself from acts that are outside the law. It establishes why we should work hard to hold our public servants liable for violations of law in the illegal collection of federal income taxes. :
“… the maxim that the King can do no wrong has no place in our system of government; yet it is also true, in respect to the State itself, that whatever wrong is attempted in its name is imputable to its government and not to the State, for, as it can speak and act only by law, whatever it does say and do must be lawful. That which therefore is unlawful because made so by the supreme law, the Constitution of the United States, is not the word or deed of the State, but is the mere wrong and trespass of those individual persons who falsely spread and act in its name."
"This distinction is essential to the idea of constitutional government. To deny it or blot it out obliterates the line of demarcation that separates constitutional government from absolutism, free self- government based on the sovereignty of the people from that despotism, whether of the one or the many, which enables the agent of the state to declare and decree that he is the state; to say 'L'Etat, c'est moi.' Of what avail are written constitutions, whose bills of right, for the security of individual liberty, have been written too often with the blood of martyrs shed upon the battle-field and the scaffold, if their limitations and restraints upon power may be overpassed with impunity by the very agencies created and appointed to guard, defend, and enforce them; and that, too, with the sacred authority of law, not only compelling obedience, but entitled to respect? And how else can these principles of individual liberty and right be maintained, if, when violated, the judicial tribunals are forbidden to visit penalties upon individual offenders, who are the instruments of wrong, whenever they interpose the shield of the state? The doctrine is not to be tolerated. The whole frame and scheme of the political institutions of this country, state and federal, protest against it. Their continued existence is not compatible with it. It is the doctrine of absolutism, pure, simple, and naked, and of communism which is its twin, the double progeny of the same evil birth."
[Poindexter v. Greenhow, 114 U.S. 270; 5 S.Ct. 903 (1885)]
In order that we can have a basis to sue the government, our proceeding must proceed on the basis of equity and not law. There is no legal basis in the Internal Revenue code that authorizes a “nontaxpayer” to sue, jail, or punish an agent for wrong doing. Furthermore, if our greedy Congress wants to steal our money and exceed its jurisdiction, do you think it would pass a law to punish wrongdoers who try to collect taxes illegally? We must therefore sue as a tort by suing the individual agent and not the state or government that he works for. In doing so, we must show that the agent was acting outside the bounds of his delegated authority and outside the lawful bounds of his employment. If the government proves that the agent was acting within his lawful authority, they will try to invoke what is called the Westfall Act, 28 U.S.C. §2679, and substitute themselves in place of the individual defendant under 28 U.S.C. §2679(d )(1), which makes the litigation against the government and not the agent. This makes it far less likely that you will win because then you need permission from the government in order to sue and you will be litigating against an enemy with relatively unlimited resources compared to your own.
We must sue the individual IRS agent in equity jurisdiction and the state or government may not invoke sovereign immunity or the Eleventh Amendment and substitute itself for such a party, because the injuring party was acting outside the law and the authority of the state. Here’s a cite from Poindexter v. Greenhow, 114 U.S. 270; 5 S.Ct. 903 (1885) confirming this:
“The second head of that classification is thus described: 'Another class of cases is where an individual is sued in tort for some act injurious to another in regard to person or property, to which his defense is that he has acted under the orders of the government. 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.' And in illustration of this principle reference was made to Mitchell v. Harmony, 13 How. 115; Bates v. Clark, 95 U.S. 204 ; Meigs v. McClung's Lessee, 9 Cranch, 11; Wilcox v. Jackson, 13 Pet. 498; Brown v. Huger, 21 How. 315; [114 U.S. 270, 288] Grisar v. McDowell, 6 Wall. 363; and U. S. v Lee, 106 U.S. 196 ; S. C. 1 SUP. CT. REP. 240.”
Most of the remedies identified in the I.R.C. are for taxpayers, which most of us aren’t. The most important exception to this rule is found in 26 U.S.C. §7426, which relates to Civil Actions by Persons Other than “Taxpayers”. A person who is a "nontaxpayer", if he needs statutory standing to sue, should use 26 U.S.C. §7426 and may not use any section that refers to "taxpayers" as authority to sue in a civil action involving taxation. The reasons for this is described in the article below:
http://famguardian.org/Subjects/Taxes/Articles/TaxpayerVNontaxpayer.htm
Bouvier’s Law Dictionary, Vol. II, Third Revision, Eighth Edition, 1914, pp. 3230-3238 defines how to recover income taxes collected illegally and against a person under duress who is a nontaxpayer under the definition of “income tax”.
"Income tax: In order to invoke the powers of a court of equity to restrain the collection of illegal taxes, the case must be brought within the well recognized foundations of equitable jurisdiction [* * *] and it must clearly appear not only that the tax is illegal, but that the property owner has no adequate remedy at law, and that there are special circumstances bringing the case under some recognized head of equity jurisdiction…” [Cites omitted.]”
As we pointed out in section 2.1, people who hold public office or work for the government are recipients of the public trust and must maintain the highest ethical and moral standards in all their dealings with the public as “public servants”. In the legal field, this kind of responsibility is referred to as “fiduciary duty”. Fiduciary duty is defined as follows:
Fiduciary duty: A duty to act for someone else’s benefit, while subordinating one’s personal interests to that of the other person. It is the highest standard of duty implied by law (e.g. trustee, guardian).
[(Black’s Law Dictionary, Sixth Edition, page 625)]
Fiduciary or confidential relation: A very broad term embracing both technical and fiduciary relations and those informal relations which exist wherever one person trusts in or relies upon another. One founded on trust or confidence reposed by one person in the integrity and fidelity of another. Such relationship arises whenever confidence is reposed on one side, and domination and influence result on the other; the relation can be legal, social, domestic, or merely personal. Heilman’s Estate, Matter of, 37 Ill.App.3d 390, 345 N.E.2d 536, 540.
A relation subsisting between two persons in regard to a business, contract, or piece of property, or in regard to the general business or estate of one of them, of such a character that each must repose trust and confidence in the other and must exercise a corresponding degree of fairness and good faith. Out of such a relation, the law raises the rule that neither party may exert influence or pressure upon the other, take selfish advantage of his trust, or deal with the subject-matter of the trust in such a way as to benefit himself or prejudice the other except in the exercise of the utmost good faith and with the full knowledge and consent of that other, business shrewdness, hard bargaining, and astuteness to take advantage of the forgetfulness or negligence of another being totally prohibited as between persons standing in such a relation to each other. Examples of fiduciary relations are those existing between attorney and client, guardian and ward, principal and agent, executor and heir, trustee and cestui que trust, landlord and tenant, etc.
[Black’s Law Dictionary, Sixth Edition, page 625]
Examples of persons who must act in a fiduciary capacity are all those persons who work at financial institutions, spouses, attorneys, government employees, and elected or appointed political officials. If you attempt to prosecute an IRS employee for malfeasance, fraud, or illegal taking of taxes, it will be much easier to get a conviction with the jury if you focus on the fiduciary duty and high moral standard of care they have to the public at large. These fiduciary duties give rise to a "contract" or "implied contract" cognizable under the Tucker Act, 28 U.S.C. §1491. The contract is the Constitution, and the obligation to obey the contract arises out of the oath of public office taken by "public officers" pursuant to 5 U.S.C. §3331. Remember item X in the Code of Ethics for Government Service, part of Public Law 96-303, which we talked about earlier in section 2.1 of the Great IRS Hoax.
“X. Uphold these principles, ever conscious that public office is a public trust.”
Also remember the content of Executive Order 12731, Part 1, Section 101, item (a) in that same section:
"(a) Public service is a public trust, requiring employees to place loyalty to the Constitution, the laws, and ethical principles above private gain.”
The federal courts agree with the above conclusions. Below is one significant example of that:
The right to sue a tax collector to recover back taxes illegally exacted is derived from the common-law and does not depend on statute. The rule is this. If the payment is made voluntarily, there can be no recovery. But if the payment is made under compulsion and with protest, sufficient to notify the collector that he will be sued to recover it back, he is personally liable whether he has covered the money into the treasury or not.
There is no statute of the United States expressly giving the right to sue a tax collector to recover back taxes illegally exacted, but the common law has been greatly modified by various statutes in this respect. These statutes recognize the right and by necessary implication grant it as to suits against federal tax collectors.
“A statute will not be construed as taking away a common-law right existing at the date of its enactment, unless that result is imperatively required.” Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 354, 51 L.Ed. 553, 9 Ann. Cas. 1075. “All laws should receive a sensible construction. General terms should be so limited to their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language, which would avoid results of this character.” U.S. v. Kirby, 7 Wall. 482, 486, 19 L.Ed. 278; Lau Ow Bew v. U.S., 144 U.S. 47, 12 S.Ct. 517, 36 L.Ed. 340; Jacobson v. Mass., 197 U.S. 11, 26 S.Ct. 358, 49 L.Ed. 643, 3 Ann.Cas. 765.”
[White v. Hopkins, 41 F.2d 159 (1931)]
It is quite common for IRS revenue agents to hide behind a cloak of secrecy and anonymity in order to evade being prosecuted for their misconduct. For instance, IRS agents you will talk to on the phone will refuse to give their real last name, and refer to themselves only by number. They do this because this makes them more difficult to prosecute for wrongdoing or bad advice. These same agents also have a habit of putting fictitious names on the correspondence they sign for the same reason. If you decide to prosecute one of these anonymous agents and find it difficult to track him or her down, be advised that an easier approach may be to just prosecute his supervisor, who is easier to identify. For instance, you might prosecute the Commissioner of the Internal Revenue Service, for instance. However, there must be a causal relationship between the wrongdoing committed by an IRS employee and his supervisor. One such causal relationship, for instance, could be that the employee was not properly trained or supervised and therefore was either negligent or malicious. Below is what one federal court said about this subject:
The Defendants, as IRS agents, are not prosecutors, nor are the cases granting absolute immunity to prosecutors helpful to them. Rather, their duties are merely investigative. They gather facts and refer cases to prosecutors, who then decide whether or not to prosecute. Considering these duties, an IRS agent is analogous to a complaining witness at common law—both are detached from the judicial process by the interposition of the prosecutor. For this reason, a complaining witness was not entitled to absolute immunity at common law. [Cites omitted.] It follows that the Defendants, IRS agents, should not be entitled to absolute immunity on the same basis.
Accordingly, we find that when IRS agents investigate and refer cases for criminal investigations, they do not enjoy absolute immunity for their actions. Accord, Cameron v. I.R.S., 773 F.2d 126, 128 (7th Cir. 1985) (IRS agents are not entitled to absolute immunity).
A supervisor can be held liable for civil rights violations where his “conduct is causally related to constitutional violation committed by his subordinate.” Greason v. Kemp, 891 F.2d 836 (citing, Wilson v. Attaway, 757 F.2d 1227, 1241 (11th Cir. 1985)) (personal participation is not required to impose liability for a civil rights deprivation. There must be some causal connection between the actions of the superior and the alleged deprivation); see also Rizzo v. Goode, 423 U.S. 362, 375-76, 96 S.Ct. 598, 606 L.Ed.2d 561, 572 (1976) (for liability under §1983, supervisory officials have direct responsibility for actions of officials who had engaged in misconduct).
[Heller v. Plave, 743 F.Supp. 1553 (1990)]
When the IRS prosecutes individuals for tax evasion, they use the following criteria, right from their Internal Revenue Manual Part 9, Chapter 1, Section 3 found at http://www.irs.gov/irm/part9/ch01s03.html:
9.1.3.3.2.2 (08-11-2003)
IRC §7201—
Elements of the Offense
The elements of the offense of willfully attempting in any manner to evade or defeat any tax or the payment of any tax are the same, but the courts have interpreted the terms differently in some instances. The differences are noted in the explanation. The elements of the offense are:
Additional tax due and owing.
An attempt in any manner to evade or defeat any tax.
Willfulness.
9.1.3.3.2.2.2 (08-11-2003)
Attempt to Evade or Defeat Any Tax
The substance of the offense under IRC 7201 is the term "attempt in any manner" . The statute does not define attempt, nor does it limit or define the means or methods by which the attempt to evade or defeat any tax may be accomplished.
However, it has been judicially determined that the term "attempt" implies some affirmative action or the commission of some overt act. The actual filing of a false or fraudulent return is not requisite for the commission of the offense though the filing of such a return is the usual attempt to evade or defeat the tax. A false statement made to Treasury agents for the purpose of concealing unreported income has also been judicially determined to be an attempt to evade or defeat the tax.
The willful omission of a duty or the willful failure to perform a duty imposed by statute does not per se constitute an attempt to evade or defeat. However, a willful omission or failure (such as a willful failure to make and file a return) when coupled with affirmative acts or conduct from which an attempt may be inferred would constitute an attempt. In the case of Spies v. United States , the Supreme Court gave certain illustrations of acts or conduct, which may infer "the attempt to evade or defeat any tax" ; such as:
Keeping a double set of books.
Making false entries, alterations, invoices, or documents.
Destroying books or records.
Concealing assets or covering up sources of income .
Handling one's affairs to avoid making the records usual in transactions of the kind.
Any conduct, the likely effect of which would be to mislead or to conceal.
Attempt does not mean that one whose efforts are successful cannot commit the crime of willful attempt. The crime is complete when the attempt is made and nothing is added to its criminality by success or consummation, as would be the case with respect to attempted murder. It has been held that "attempts cover both successful and unsuccessful endeavors or efforts." As the courts have stated, "The real character of the offense lies, not in the failure to file a return or in the filing of a false return, but rather in the attempt" to evade any tax.
It is well settled that a separate offense may be committed with respect to each year. Therefore, an attempt for 1 year is a separate offense from an attempt for a different year.
There may also be more than one violation in one year resulting from the same acts such as the willful attempt to evade the payment of tax and the willful attempt to evade tax. Likewise, there may be charged a willful attempt to evade tax and a willful failure to file a return for the same year.
In an attempt to evade or defeat the payment of any tax, the mere failure or willful failure to pay any tax does not constitute an attempt to evade or defeat the payment of any tax. The comments set out above with respect to attempts also apply to this offense. The attempt implies some affirmative action or the commission of some overt act. Examples of such action or conduct relating to the attempted evasion of the payment of the tax are found in the Giglio case. These are:
Concealing assets.
Reporting income through others.
Misappropriating, converting, and diverting corporate assets.
Filing late returns.
Failing to withhold taxes as required by law.
Filing false declarations of estimated taxes.
Filing false tentative corporate returns.
9.1.3.3.2.2.3 (07-29-1998)
Willfulness
The attempt in any manner to evade or defeat any tax must be willful. Willfulness has been defined as an act or conduct done with a bad or evil purpose. Mere understatement of income and the filing of an incorrect return does not in itself constitute willful attempted tax evasion. The offense is made out when conduct such as exemplified in the Spies case (supra) is present.
Courts have held that disbursement of available funds to creditors other than the government , or to corporate stockholders is not of itself an attempt to evade or defeat payment of taxes.
This definition of willfulness applies to all Title 26 offenses where willfulness is an element, unless stated otherwise.
Why is this relevant when applied to prosecuting the IRS and revenue officers? Because we can apply the same standards for concealment and fraud against the IRS when prosecuting them for breach of fiduciary duty. We can then focus on “extortion under the color of office” and “theft” in front of the jury and apply nearly the same standards. We therefore summarize the elements that would make up a good claim of breach of fiduciary duty:
Elements of “extortion under the color of office”:
1. A refund was due and owing or a lack of liability should have been disclosed but wasn’t.
2. There was an attempt to evade or defeat the refund or disclosure of the laws and lack of liability that would facilitate the refund or lack of liability to file.
3. Willfulness.
Attempt to evade or defeat the truth about lack of liability:
1. A false statement made by Treasury agents for the purpose of concealing lack of liability or lawful authority is a clear attempt evade or defeat the truth.
2. The willful omission of a duty or the willful failure to perform a duty imposed by the fiduciary relations ships does not per se constitute an attempt to evade or defeat the truth about nonliability. However, a willful omission or failure (such as a willful failure to make or respond to a disclosure of the truth about nonliability) when coupled with affirmative acts or conduct from which an attempt may be inferred would constitute an attempt.
A. Making false entries, alterations, invoices, or documents.
B. Destroying books or records.
C. Concealing laws or covering up their implementing regulations or lack thereof.
D. Handling one's affairs to avoid making the records usual in transactions of the kind.
E. Any conduct, the likely effect of which would be to mislead or to conceal.
3. Attempt does not mean that one whose efforts are successful cannot commit the crime of willful attempt. The crime is complete when the attempt is made and nothing is added to its criminality by success or consummation, as would be the case with respect to attempted murder. It has been held that "attempts cover both successful and unsuccessful endeavors or efforts." As the courts have stated, "The real character of the offense lies, not in the failure to disclose the truth, but rather in the attempt" to evade disclosing lack of liability for any tax or provide the refund requested.
4. In an attempt to evade or defeat the payment of any tax, the mere failure or willful failure to pay any tax does not constitute an attempt to evade or defeat the payment of any tax. The comments set out above with respect to attempts also apply to this offense. The attempt implies some affirmative action or the commission of some overt act. Examples of such action or conduct relating to the attempted evasion of the payment of the tax are found in the Giglio case. These are:
A. Concealing laws or regulations or discussing either.
B. Reporting information or rendering assistance through agents who are not qualified or who do not know the truth about the law to prevent the subject of the law from coming up in interactions with a Citizen.
C. Misappropriating, converting, and diverting private assets for personal gain or as illegal tax revenues (extortion under the color of office).
D. Filing inadequate or incomplete responses to taxpayer inquiries about their lack of liability..
E. Completely ignoring or not responding to taxpayer affidavits of fact about their lack of liability and not refuting such nonliability with quotes of the law.
F. Failing to refund taxes not owed as required by law.
G. Sending false or frivolous CP notices in response to legitimate inquiries by Citizens about their liability and in fulfillment of their rights to due process under the Administrative Procedures Act, 5 U.S.C. 556(d).
This is good stuff for stirring up mud on your favorite IRS agent when you drag his ass in court, folks! We invite you to add to this.
Judicial jurisdiction over agency acts and omissions that adversely affective substantive and procedural due process rights are prescribed by 5 U.S.C. §702 and 28 U.S.C. §1361:
5 USCS § 702 (2002)
§ 702. Right of review
A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States: Provided, That any mandatory or injunctive decree shall specify the Federal officer or officers (by name or by title), and their successors in office, personally responsible for compliance. Nothing herein (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground; or (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.
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28 USCS § 1361 (2002)
§ 1361. Action to compel an officer of the United States to perform his duty
The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.
These two sections work together. Original jurisdiction for judicial review of agency actions under 5 U.S.C. §§ 701-706 is vested in circuit courts; the mandamus section at 28 U.S.C. § 1361 was enacted to expand jurisdiction to district courts. The scope of judicial authority is prescribed by 5 U.S.C. § 706:
5 USCS § 706 (2002)
§ 706. Scope of review
To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall--
(1) compel agency action unlawfully withheld or unreasonably delayed; and
(2) hold unlawful and set aside agency action, findings, and conclusions found to be--
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.
In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be
Suing the Gov't in a Bivens Action / Money Damages Only
CONSTITUTIONAL BUSINESS
Published By Citizens' Justice Programs
Post Office Box 90, Hull, Massachusetts 02045
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Suing Your Federal Government for Civil Rights Violations
By David C. Grossack, Constitutional Attorney
Common Law Copyright © 1994
All Rights Reserved
On the occasion of the 200th anniversary of the Bill Of Rights, many attorneys may not realize that these rights each contain within them an intrinsic enabling authority for the purpose of redressing violations of these rights by those federal employees entrusted to uphold and protect them.
It is worth remembering that the authors of the Bill Of Rights were heavily influenced by Anglo-Saxon legal theorists such as Sir William Blackstone, who declared that there were "three absolute rights ... the right of personal security, the right of personal liberty and the right of personal property. [1] Blackstone believed the principal aim of society is to protect individuals in the enjoyment of these absolute rights which were vested in them by the immutable laws of nature. [2]
Blackstone's ideas became embodied in the Federalist papers, and in the writings of James Madison on property interests, which he defined in quite broad terms:
"In its larger and juster meaning, it embraces every thing to which a man may attach a value and have a right, and which leaves to every one else the like advantage ... [A] man has a property in his opinions, and the free communication of them. He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them. He has a property very dear to him in the safety and liberty of his person. He has an equal property in the free use of his faculties, and free choice of the objects on which to employ them."
"The protection of these faculties" Madison wrote in The Federalist No. 10, "is the first object of government."
As Madison might have anticipated, and as modern students of law and history may realize, in the pursuit of its various other objectives, the federal government from time to time treads on these rights and "faculties" and on the natural rights of mankind whose protection is found in the Ninth Amendment of the U.S. Constitution.
When Congress enacted Title 42 U.S. Code §1983 and other federal civil rights laws for the redress of violations of these rights, it did not extend liability to federal officials and employees. Instead, these laws were held to apply to "state action", and the actions of county and municipal government (except when federal officials conspired with others. See Fonda v. Gray, 1983(CA 9) CAL 707 F.2d. 435.)
The dilemma on how to obtain compensation for victims of "constitu tional torts" by federal actors remained essentially unresolved until the case of Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388 (1971).
Bivens has had more impact on the accountability of federal government officials than perhaps any other decision in the history of American law. The central issue in Bivens was whether the Fourth Amendment of the Federal constitution created an implied right of action. This was decided affirmatively in a claim for damages by individuals whose home was searched unreasonably (and hence unconstitutionally) by federal narcotic agents. Jurisdiction was not claimed under title 42 U.S. Code § 1983, which as of this writing, has not yet been held to extend liability to federal officials in most circumstances. Instead the enabling legislation was found under Title 28 U.S. Code § 1331 which grants general jurisdiction on the basis of a federal question.
Subsequent cases have held the Bivens theory of recovery applies to other claims under the various rights enumerated in the Constitution. (For decisions concerning redress of Fifth Amendment claims with Bivens actions, See Young v. Pierce, (DC Tex. 544 F.Supp. 1010) and Eight Amendment claims Mackey v. Indiana Hospital, (DC PA 562 F.Supp. 1251. [3]
Litigants who seek to bring claims against federal officials for abuses of their authority have been confused concerning the proper way to characterize their actions in the pleadings. Generally speaking, how one drafts a complaint and not what evidence is to be introduced determines whether a claim can survive as a federal cause of action. Tully v. Mott Supermarkets, Inc., 337 F.Supp. 834, 844 D.N.J. (1972).
For example, cases have held that if other theories of recovery are pleaded, a Bivens action must fail. This has forced attorneys to select whether they wish to use the Federal Tort Claims Act (Title 28 U.S. Code § 2679) and its strict presentment requirements and other federal law or to rely on a Bivens theory. A complaint alleging both theories are at risk of a dispositive motion. Serra v. Pichardo, 786 F.2d. 237 (6th Cir.)
Another easy mistake to make is in deciding who to name as a defendant. A lawsuit naming the FBI or United States Department of Justice per se as defendants may fail because the agencies are likely to raise certain immunity defenses which have yet to be abolished.
Federal employees may become personally liable for constitutional deprivation by direct participation, failure to remedy wrongs after learning about it, creation of a policy or custom under which constitutional practices occur or gross negligence in managing subordinates who cause violations. (Gallegos v. Haggerty, Northern District of New York, 689 F.Supp. 93)
Although certain federal officials have absolute immunity from private suit, most executive officials enjoy only qualified immunity. The rationale for the distinction is that higher officials require greater liability than officials with less complex and discretionary responsibilities. Hatori v. Haya, 751 F.Supp. 1401.
Any action is considered to be against the "sovereign" and hence fails to state a claim if judgment would "interfere with public administration, or compel the United States to act in foreign policy, or enjoin foreign policy. (Sanchez Espinola v. Reagan, 770 F.2d. 202, Rochfort v. Gibbs, 696 F.Supp. 1151, WD Michigan, 1988.)
Many litigants facing civil lawsuits in which the United States is the plaintiff have erroneously sought to counterclaim against the U.S. The United States, however, to this date has not waived sovereign immunity for claims for damages, (See United States v. Northside Realty Associates, 324 F.Supp. 287, 291 (N.D. GA 1971) (dismissing a counterclaim asserted against the Attorney General where plaintiff in the suit was the United States on the ground that although the suit was initiated by the Attorney General, the real party in interest was the United States).
When lawsuits are brought against federal officials, they must be brought against them in their "individual" capacity not their official capacity. The theory appears to be that when federal officials perpetrate constitutional torts, they do so ultra vires and lose the shield of sovereign 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).
Bivens actions, again, are by no means an exclusive remedy for redressing abuses of authority by federal government employees, even in a political context. In the celebrated case of Socialist Workers Party v. Attorney General, 596 F.2d. 58 (1979), 444 U.S. 903 (1979) (cert. denied) one of the many claims of the plaintiff, a Trotskyite communist organization, was for 193 surreptitious entries or burglaries committed by the F.B.I. Another set of claims was for the use of disruptive informants in the organization, which successfully proved itself to be a non-violent, educational group more involved in promoting and discussing ideas rather than in any violent act.
Judge Thomas Griesa's final decision in the case allowed recovery under the Federal Tort Claims Act for the intentional torts of invasion of privacy for the use of informants as well as for the F.B.I.'s burglaries, under a theory of trespass. Many other counts were dismissed in the case for failure to adhere to the procedural requirements of the Federal Tort Claims Act (FTCA).
Why plaintiff's counsel selected the FTCA rather than the Bivens theory of recovery is not known.
The social consequences of having available remedies such as Bivens and the FTCA are significant. Together with the Freedom of Information Act, The Privacy Act, and the willingness of disillusioned persons within government to act as "whistleblowers," a limited deterrent effect exists to serious violations of civil rights by government.
The sensation caused by the illegal federally sponsored research experiments on mentally disabled children sequestered for nearly 40 years and revealed only recently indicates the changes in public sentiments.
Nevertheless, many courts have considered civil rights claims to be "disfavored actions." Consider the court in Littleton v. Berbling, 468 F.2d. 390 (7th Cir. 1971):
"The civil damages suit is worthless, especially if the victim of oppression is a social misfit or an unsavory character."
The words of Justice Louis Brandeis however, offer another view:
"Decency, security and liberty alike demand that government officials shall be subjected to the 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 observe the law scrupulously. Our government is the potent, omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for the law, it invites every man to come a law unto himself. It invites anarchy. (United States v. Olmstead, 277 U.S. 438 (1928).
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Notes
1. Unfinished Business: A Civil rights Strategy For America's Third Century. Clint Bolick Pacific Research Institute For Public Policy, San Francisco, CA 1990.
2. Ibid.
3. First Amendment litigation concerning IRS tax exempt status for minority political and religious movements is also common. For an historical perspective see Income Disadvantages of Political Activities, (Colum. L. Rev. 273 (1957). Also, Clark, The Limitation On Political Activities: A Discordant Note In the Law Of Charities, 46 VA L.Rev. 439 (1960). See also, Communist Party v. Commissioner of Internal Revenue, 332 F.2d. 325, 329(D.C. Cir. 1964; Wolfe v. U.S. Tax Court, (1981) (D.C. Colo. 513 F.Supp. 912.
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The author is an attorney in private practice in Boston.
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http://www.constitution.org/grossack/bivens.htm
Published By Citizens' Justice Programs
Post Office Box 90, Hull, Massachusetts 02045
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Suing Your Federal Government for Civil Rights Violations
By David C. Grossack, Constitutional Attorney
Common Law Copyright © 1994
All Rights Reserved
On the occasion of the 200th anniversary of the Bill Of Rights, many attorneys may not realize that these rights each contain within them an intrinsic enabling authority for the purpose of redressing violations of these rights by those federal employees entrusted to uphold and protect them.
It is worth remembering that the authors of the Bill Of Rights were heavily influenced by Anglo-Saxon legal theorists such as Sir William Blackstone, who declared that there were "three absolute rights ... the right of personal security, the right of personal liberty and the right of personal property. [1] Blackstone believed the principal aim of society is to protect individuals in the enjoyment of these absolute rights which were vested in them by the immutable laws of nature. [2]
Blackstone's ideas became embodied in the Federalist papers, and in the writings of James Madison on property interests, which he defined in quite broad terms:
"In its larger and juster meaning, it embraces every thing to which a man may attach a value and have a right, and which leaves to every one else the like advantage ... [A] man has a property in his opinions, and the free communication of them. He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them. He has a property very dear to him in the safety and liberty of his person. He has an equal property in the free use of his faculties, and free choice of the objects on which to employ them."
"The protection of these faculties" Madison wrote in The Federalist No. 10, "is the first object of government."
As Madison might have anticipated, and as modern students of law and history may realize, in the pursuit of its various other objectives, the federal government from time to time treads on these rights and "faculties" and on the natural rights of mankind whose protection is found in the Ninth Amendment of the U.S. Constitution.
When Congress enacted Title 42 U.S. Code §1983 and other federal civil rights laws for the redress of violations of these rights, it did not extend liability to federal officials and employees. Instead, these laws were held to apply to "state action", and the actions of county and municipal government (except when federal officials conspired with others. See Fonda v. Gray, 1983(CA 9) CAL 707 F.2d. 435.)
The dilemma on how to obtain compensation for victims of "constitu tional torts" by federal actors remained essentially unresolved until the case of Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388 (1971).
Bivens has had more impact on the accountability of federal government officials than perhaps any other decision in the history of American law. The central issue in Bivens was whether the Fourth Amendment of the Federal constitution created an implied right of action. This was decided affirmatively in a claim for damages by individuals whose home was searched unreasonably (and hence unconstitutionally) by federal narcotic agents. Jurisdiction was not claimed under title 42 U.S. Code § 1983, which as of this writing, has not yet been held to extend liability to federal officials in most circumstances. Instead the enabling legislation was found under Title 28 U.S. Code § 1331 which grants general jurisdiction on the basis of a federal question.
Subsequent cases have held the Bivens theory of recovery applies to other claims under the various rights enumerated in the Constitution. (For decisions concerning redress of Fifth Amendment claims with Bivens actions, See Young v. Pierce, (DC Tex. 544 F.Supp. 1010) and Eight Amendment claims Mackey v. Indiana Hospital, (DC PA 562 F.Supp. 1251. [3]
Litigants who seek to bring claims against federal officials for abuses of their authority have been confused concerning the proper way to characterize their actions in the pleadings. Generally speaking, how one drafts a complaint and not what evidence is to be introduced determines whether a claim can survive as a federal cause of action. Tully v. Mott Supermarkets, Inc., 337 F.Supp. 834, 844 D.N.J. (1972).
For example, cases have held that if other theories of recovery are pleaded, a Bivens action must fail. This has forced attorneys to select whether they wish to use the Federal Tort Claims Act (Title 28 U.S. Code § 2679) and its strict presentment requirements and other federal law or to rely on a Bivens theory. A complaint alleging both theories are at risk of a dispositive motion. Serra v. Pichardo, 786 F.2d. 237 (6th Cir.)
Another easy mistake to make is in deciding who to name as a defendant. A lawsuit naming the FBI or United States Department of Justice per se as defendants may fail because the agencies are likely to raise certain immunity defenses which have yet to be abolished.
Federal employees may become personally liable for constitutional deprivation by direct participation, failure to remedy wrongs after learning about it, creation of a policy or custom under which constitutional practices occur or gross negligence in managing subordinates who cause violations. (Gallegos v. Haggerty, Northern District of New York, 689 F.Supp. 93)
Although certain federal officials have absolute immunity from private suit, most executive officials enjoy only qualified immunity. The rationale for the distinction is that higher officials require greater liability than officials with less complex and discretionary responsibilities. Hatori v. Haya, 751 F.Supp. 1401.
Any action is considered to be against the "sovereign" and hence fails to state a claim if judgment would "interfere with public administration, or compel the United States to act in foreign policy, or enjoin foreign policy. (Sanchez Espinola v. Reagan, 770 F.2d. 202, Rochfort v. Gibbs, 696 F.Supp. 1151, WD Michigan, 1988.)
Many litigants facing civil lawsuits in which the United States is the plaintiff have erroneously sought to counterclaim against the U.S. The United States, however, to this date has not waived sovereign immunity for claims for damages, (See United States v. Northside Realty Associates, 324 F.Supp. 287, 291 (N.D. GA 1971) (dismissing a counterclaim asserted against the Attorney General where plaintiff in the suit was the United States on the ground that although the suit was initiated by the Attorney General, the real party in interest was the United States).
When lawsuits are brought against federal officials, they must be brought against them in their "individual" capacity not their official capacity. The theory appears to be that when federal officials perpetrate constitutional torts, they do so ultra vires and lose the shield of sovereign 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).
Bivens actions, again, are by no means an exclusive remedy for redressing abuses of authority by federal government employees, even in a political context. In the celebrated case of Socialist Workers Party v. Attorney General, 596 F.2d. 58 (1979), 444 U.S. 903 (1979) (cert. denied) one of the many claims of the plaintiff, a Trotskyite communist organization, was for 193 surreptitious entries or burglaries committed by the F.B.I. Another set of claims was for the use of disruptive informants in the organization, which successfully proved itself to be a non-violent, educational group more involved in promoting and discussing ideas rather than in any violent act.
Judge Thomas Griesa's final decision in the case allowed recovery under the Federal Tort Claims Act for the intentional torts of invasion of privacy for the use of informants as well as for the F.B.I.'s burglaries, under a theory of trespass. Many other counts were dismissed in the case for failure to adhere to the procedural requirements of the Federal Tort Claims Act (FTCA).
Why plaintiff's counsel selected the FTCA rather than the Bivens theory of recovery is not known.
The social consequences of having available remedies such as Bivens and the FTCA are significant. Together with the Freedom of Information Act, The Privacy Act, and the willingness of disillusioned persons within government to act as "whistleblowers," a limited deterrent effect exists to serious violations of civil rights by government.
The sensation caused by the illegal federally sponsored research experiments on mentally disabled children sequestered for nearly 40 years and revealed only recently indicates the changes in public sentiments.
Nevertheless, many courts have considered civil rights claims to be "disfavored actions." Consider the court in Littleton v. Berbling, 468 F.2d. 390 (7th Cir. 1971):
"The civil damages suit is worthless, especially if the victim of oppression is a social misfit or an unsavory character."
The words of Justice Louis Brandeis however, offer another view:
"Decency, security and liberty alike demand that government officials shall be subjected to the 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 observe the law scrupulously. Our government is the potent, omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for the law, it invites every man to come a law unto himself. It invites anarchy. (United States v. Olmstead, 277 U.S. 438 (1928).
--------------------------------------------------------------------------------
Notes
1. Unfinished Business: A Civil rights Strategy For America's Third Century. Clint Bolick Pacific Research Institute For Public Policy, San Francisco, CA 1990.
2. Ibid.
3. First Amendment litigation concerning IRS tax exempt status for minority political and religious movements is also common. For an historical perspective see Income Disadvantages of Political Activities, (Colum. L. Rev. 273 (1957). Also, Clark, The Limitation On Political Activities: A Discordant Note In the Law Of Charities, 46 VA L.Rev. 439 (1960). See also, Communist Party v. Commissioner of Internal Revenue, 332 F.2d. 325, 329(D.C. Cir. 1964; Wolfe v. U.S. Tax Court, (1981) (D.C. Colo. 513 F.Supp. 912.
--------------------------------------------------------------------------------
The author is an attorney in private practice in Boston.
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http://www.constitution.org/grossack/bivens.htm
Monday, July 27, 2009
When All Else Fails....
Get One of These On Your Side;
A forensic psychologist is any psychologist who offers an expert psychological opinion in a way that it impacts one of the adversarial arenas, typically the courts. Many people think of forensic psychologists as focussing on criminal matters. This is certainly not always the case.
A forensic psychologist is any psychologist who by virtue of training or experience may assist a court or other fact finder in arriving at a just or correct decision. For example a forensic psychologist may assist in a wide variety of civil matters. Civil matters include but are not limited to lawsuits or insurance claims where emotional suffering is a part of the claim, determination of competency of an aged or ill person to make decisions, whether a death was an accident or a "disguised suicide" in an insurance claim case, or in a wide variety of other areas.
Becoming a forensic psychologist will first require you to get a doctorate in psychology, often (but not necessarily) in clinical or counseling psychology. It will probably take you about seven years after the undergraduate degree to get this doctorate, though some people may take a little less time. Competition is stiff to enter these doctoral programs, so study hard!
One way the person who is already a psychologist becomes a forensic psychologist is by doing additional informal study after receiving the doctoral degree. She or he does this by attending seminars, consulting with senior colleagues, or returning to the university to take additional course work.
Simultaneously, psychologists often undertake their first cases in the forensic area. When done well the ethical psychologist takes care to consult closely with colleagues in the early years.
After getting considerable experience and continuing education, some forensic psychologists will go on to become 'Board Certified' in the forensic psychology specialty. But not all forensic psychologists do become board certified.
The best known certification board is the American Board of Forensic Psychology, which offers the title of 'diplomate' to people who meet its standards and pass its examination.
There are a few graduate programs in the United States and Canada that directly train people to become forensic psychologists during the university doctoral psychology program. A person who completes one of these programs gets training in forensic psychology at the same time as obtaining the doctoral training in clinical psychology. But additional work is still necessary for the psychologist to become a 'board certified' diplomate in the specialty.
--------------------------------------------------------------------------------
The following list of doctoral psychology programs that offer training in forensic psychology is built and maintained as readers send me additions and corrections. You can send me an email by clicking here.
Alliant International University, Fresno Campus, CA [reported by reader 3/13/03]
American International College - Springfield MA [reported by reader 10/27/01]
Argosy University - Campuses at various locations [reported by reader 02/06/06]
California State University - Los Angeles [M.S. only - reported by reader 1/8/04]
California State University - Sacramento [reported by readers as present and absent! - status is not clear]
Carlos Albizu University - Miami FL [reported by reader 3/1/04]
Castleton State College - Vermont [M.A. only][added by webmaster 11/14/97)
Chicago School of Professional Psychology [added by webmaster 1/12/02]
College of St Elizabeth Morristown, NJ [Master's only][added by webmaster 6/02/07]
Colorado School of Professional Psychology [reported by reader 09/24/05]
Fielding Graduate University, Santa Barbara, CA [added by webmaster 2/11/98]
Florida International University [added 8/21/98]
Florida State University
Florida Tech, Melbourne FL [BA only] [reported by reader 3/13/03]
Forest Institute of Psychology, Chicago IL [reported by reader 3/13/03]
Illinois School of Professional Psychology [added 8/21/98]
John Jay College of Criminal Justice, City University of New York [PhD beginning Fall 2004][reported by reader 2/13/04]
Marymount University, Arlington VA [reported by reader 4/5/07]
Miami Institute of Psychology [reported by reader 10/30/99]
Northwestern University [reader reports it's no longer available 6/2/01]
Nova Southereastern University [reported by reader 10/30/99]
Pacific Graduate School of Psychology [reported by reader 07/01/04]
Queen's University, Kingston Ontario
Roger Williams University, Bristol, RI, [MA only] [reported by reader 11/01/05]
Sam Houston State University, Huntsville TX [added by webmaster 6/11/97]
Simon Fraser University
State University of New York at Buffalo [reported as not available by reader]
Tiffin University, Ohio [M.A. only][M.A. not yet accredited][added by webmaster 2/11/98]
University of Alabama
University of British Columbia
University of California at Los Angeles [M.A. only][reported by reader 2/28/01]
University of Denver, Denver CO [M.A. only][reported by reader 3/13/03]
University of Illinois at Chicago Circle
University of Liverpool, UK [M.Sc. in Investigative Psychology][reported by reader 3/11/04]
University of Kansas
University of Nebraska at Lincoln
University of Nevada-Reno [for jury consulting - contact R. Dillehay PhD - added 8/21/98}
University of Virginia in School of Education - contact D. Cornell PhD [added by webmaster 4/09/02]
--------------------------------------------------------------------------------
The following programs are also associated with law schools. The successful student will receive both a doctoral degree in psychology and a law degree. These programs that lead to two graduate degrees take longer to complete than ones that lead only to the psychology doctoral degree.
Mental Health Services Department, Hahneman University
Northwestern University
Pacific Graduate School of Psychology in association with Golden Gate University School of Law [reported by reader 4/21/00]
Psychology Department, University of Nebraska
Psychology Department, Johns Hopkins University
Stanford University
University of Arizona
University of Minnesota
Widener University
The American Psychology Law Society page has more information also.
--------------------------------------------------------------------------------
Readers who know of additional programs that should be added to this list or of necessary corrections should send feedback to the webmaster of this page, Robert C. Morecook, PhD Enjoy!
--------------------------------------------------------------------------------
LINKS to a number of Forensic Psychology sites are here.
--------------------------------------------------------------------------------
Visit the [Home Page] of the webmaster, Robert Morecook PhD.
Click on title above t go there;
http://www.geocities.com/Athens/7429/forensicpsychprep.html
A forensic psychologist is any psychologist who offers an expert psychological opinion in a way that it impacts one of the adversarial arenas, typically the courts. Many people think of forensic psychologists as focussing on criminal matters. This is certainly not always the case.
A forensic psychologist is any psychologist who by virtue of training or experience may assist a court or other fact finder in arriving at a just or correct decision. For example a forensic psychologist may assist in a wide variety of civil matters. Civil matters include but are not limited to lawsuits or insurance claims where emotional suffering is a part of the claim, determination of competency of an aged or ill person to make decisions, whether a death was an accident or a "disguised suicide" in an insurance claim case, or in a wide variety of other areas.
Becoming a forensic psychologist will first require you to get a doctorate in psychology, often (but not necessarily) in clinical or counseling psychology. It will probably take you about seven years after the undergraduate degree to get this doctorate, though some people may take a little less time. Competition is stiff to enter these doctoral programs, so study hard!
One way the person who is already a psychologist becomes a forensic psychologist is by doing additional informal study after receiving the doctoral degree. She or he does this by attending seminars, consulting with senior colleagues, or returning to the university to take additional course work.
Simultaneously, psychologists often undertake their first cases in the forensic area. When done well the ethical psychologist takes care to consult closely with colleagues in the early years.
After getting considerable experience and continuing education, some forensic psychologists will go on to become 'Board Certified' in the forensic psychology specialty. But not all forensic psychologists do become board certified.
The best known certification board is the American Board of Forensic Psychology, which offers the title of 'diplomate' to people who meet its standards and pass its examination.
There are a few graduate programs in the United States and Canada that directly train people to become forensic psychologists during the university doctoral psychology program. A person who completes one of these programs gets training in forensic psychology at the same time as obtaining the doctoral training in clinical psychology. But additional work is still necessary for the psychologist to become a 'board certified' diplomate in the specialty.
--------------------------------------------------------------------------------
The following list of doctoral psychology programs that offer training in forensic psychology is built and maintained as readers send me additions and corrections. You can send me an email by clicking here.
Alliant International University, Fresno Campus, CA [reported by reader 3/13/03]
American International College - Springfield MA [reported by reader 10/27/01]
Argosy University - Campuses at various locations [reported by reader 02/06/06]
California State University - Los Angeles [M.S. only - reported by reader 1/8/04]
California State University - Sacramento [reported by readers as present and absent! - status is not clear]
Carlos Albizu University - Miami FL [reported by reader 3/1/04]
Castleton State College - Vermont [M.A. only][added by webmaster 11/14/97)
Chicago School of Professional Psychology [added by webmaster 1/12/02]
College of St Elizabeth Morristown, NJ [Master's only][added by webmaster 6/02/07]
Colorado School of Professional Psychology [reported by reader 09/24/05]
Fielding Graduate University, Santa Barbara, CA [added by webmaster 2/11/98]
Florida International University [added 8/21/98]
Florida State University
Florida Tech, Melbourne FL [BA only] [reported by reader 3/13/03]
Forest Institute of Psychology, Chicago IL [reported by reader 3/13/03]
Illinois School of Professional Psychology [added 8/21/98]
John Jay College of Criminal Justice, City University of New York [PhD beginning Fall 2004][reported by reader 2/13/04]
Marymount University, Arlington VA [reported by reader 4/5/07]
Miami Institute of Psychology [reported by reader 10/30/99]
Northwestern University [reader reports it's no longer available 6/2/01]
Nova Southereastern University [reported by reader 10/30/99]
Pacific Graduate School of Psychology [reported by reader 07/01/04]
Queen's University, Kingston Ontario
Roger Williams University, Bristol, RI, [MA only] [reported by reader 11/01/05]
Sam Houston State University, Huntsville TX [added by webmaster 6/11/97]
Simon Fraser University
State University of New York at Buffalo [reported as not available by reader]
Tiffin University, Ohio [M.A. only][M.A. not yet accredited][added by webmaster 2/11/98]
University of Alabama
University of British Columbia
University of California at Los Angeles [M.A. only][reported by reader 2/28/01]
University of Denver, Denver CO [M.A. only][reported by reader 3/13/03]
University of Illinois at Chicago Circle
University of Liverpool, UK [M.Sc. in Investigative Psychology][reported by reader 3/11/04]
University of Kansas
University of Nebraska at Lincoln
University of Nevada-Reno [for jury consulting - contact R. Dillehay PhD - added 8/21/98}
University of Virginia in School of Education - contact D. Cornell PhD [added by webmaster 4/09/02]
--------------------------------------------------------------------------------
The following programs are also associated with law schools. The successful student will receive both a doctoral degree in psychology and a law degree. These programs that lead to two graduate degrees take longer to complete than ones that lead only to the psychology doctoral degree.
Mental Health Services Department, Hahneman University
Northwestern University
Pacific Graduate School of Psychology in association with Golden Gate University School of Law [reported by reader 4/21/00]
Psychology Department, University of Nebraska
Psychology Department, Johns Hopkins University
Stanford University
University of Arizona
University of Minnesota
Widener University
The American Psychology Law Society page has more information also.
--------------------------------------------------------------------------------
Readers who know of additional programs that should be added to this list or of necessary corrections should send feedback to the webmaster of this page, Robert C. Morecook, PhD Enjoy!
--------------------------------------------------------------------------------
LINKS to a number of Forensic Psychology sites are here.
--------------------------------------------------------------------------------
Visit the [Home Page] of the webmaster, Robert Morecook PhD.
Click on title above t go there;
http://www.geocities.com/Athens/7429/forensicpsychprep.html
Sunday, July 19, 2009
A Question I Have Just Now Posed......
To The National Womans Law Center;
---------------
Dear NWLC;
Hows This for Headlines?
"Mentally Incompetent Indigent Plaintiff Forced to Go It Alone At Trial After Lawyer Gets Disbarred and Court Denies Paralegal Wifes Motion to Join Her Husband as a Co-Plaintiff / Interested Party"
I was wondering if you might be interested in this "womans rights" aspect of my husbands civil case? He is the plaintiff in a million-dollar case against 2 thieving partner(s), one, abeloved brother whom he had always adored and looked up to. After our lawyer got disbarred and all motions were denied (my motion to enjoin and then my husbands own motion for assignment of councel) having been denied, he is now being forced by the court into self-representation and is NOT qualified for it in any way. He is terrified at the thought. He has mental & emotional issues over the fact he is having to sue HIS (beloved) BROTHER over the partnership-thievery. Beside the mental issues, he is by no means the sharpest tool in the shed or the brightest light in the attic...He will be the first one to tell you, and anyone who knows him even slightly, knows he has certain cognitive and other mental "impairments" I am guessing his IQ is in the 50-60 range...if that means anything when it comes to compentency and self-litigation.... our whole financial future is riding on this case. We figure the thieving partners owe us about $150,000 at least, the rest is punative.
The case is getting ready to go to trial. Discoveries are almost complete and we have a hearing coming up on August 26th,... and NO legal representation....
My husband is terrified as he has to go it completely alone. They wont even allow me in the sessions.....(per our adversaries lawyers request. He is tired of me making him look like the dumb bastard that he is! ) But oh, my poor husband...he is terrified and losing sleep at the very thought of having to go in there alone, and I dont blame him.
Hoping that you might be interested in working to establish a new groundbreaking area of law concering a womans "right of interest" in a spouses affairs that directly effect her," ...and to teach this dumb judge a lesson.
If interested to know more, please give me a call at home, anytime;
Christine Jubic
(518) 753 - 7791
Thanks!
---------------
Dear NWLC;
Hows This for Headlines?
"Mentally Incompetent Indigent Plaintiff Forced to Go It Alone At Trial After Lawyer Gets Disbarred and Court Denies Paralegal Wifes Motion to Join Her Husband as a Co-Plaintiff / Interested Party"
I was wondering if you might be interested in this "womans rights" aspect of my husbands civil case? He is the plaintiff in a million-dollar case against 2 thieving partner(s), one, abeloved brother whom he had always adored and looked up to. After our lawyer got disbarred and all motions were denied (my motion to enjoin and then my husbands own motion for assignment of councel) having been denied, he is now being forced by the court into self-representation and is NOT qualified for it in any way. He is terrified at the thought. He has mental & emotional issues over the fact he is having to sue HIS (beloved) BROTHER over the partnership-thievery. Beside the mental issues, he is by no means the sharpest tool in the shed or the brightest light in the attic...He will be the first one to tell you, and anyone who knows him even slightly, knows he has certain cognitive and other mental "impairments" I am guessing his IQ is in the 50-60 range...if that means anything when it comes to compentency and self-litigation.... our whole financial future is riding on this case. We figure the thieving partners owe us about $150,000 at least, the rest is punative.
The case is getting ready to go to trial. Discoveries are almost complete and we have a hearing coming up on August 26th,... and NO legal representation....
My husband is terrified as he has to go it completely alone. They wont even allow me in the sessions.....(per our adversaries lawyers request. He is tired of me making him look like the dumb bastard that he is! ) But oh, my poor husband...he is terrified and losing sleep at the very thought of having to go in there alone, and I dont blame him.
Hoping that you might be interested in working to establish a new groundbreaking area of law concering a womans "right of interest" in a spouses affairs that directly effect her," ...and to teach this dumb judge a lesson.
If interested to know more, please give me a call at home, anytime;
Christine Jubic
(518) 753 - 7791
Thanks!
Monday, June 29, 2009
Update on a Civil Right to Counsel / The "Civil Gideon" Movement
Advocacy for a civil right to counsel (Civil Gideon) continues to move forward, as you'll see from these recent developments. "Gideon" (in Gideon v. Wainwright, 372 U.S. 335 (1963)) is a landmark U.S. Supreme Court case that gave poor people accused of crime a right to appointment of counsel. The Civil Gideon movement advocates for extension of that right where "other vital interests" are at stake for indigent civil litigants. Please forward this newsletter to anyone who might be interested.
Right to Counsel in AK Supreme Court
On May 21st the Alaska Supreme Court heard oral argument in Office of Public Advocacy v. Alaska Court System and Jonsson. As reported in the October and December 2008 issues of Civil Right to Counsel Update,the case involves an appeal of a ruling that counsel must be appointed for an indigent parent in a custody matter, under both the equal protection and due process clauses of the Alaska constitution. Ms. Jonsson's equal protection claim, which the Alaska Court System endorsed, was that the statute violated equal protection by denying parents a right to an appointed attorney when the opposing parent was represented by private, rather than publicly-funded, counsel.
Ms. Jonsson's pro bono counsel argued that the due process claim was not properly before the court but that the court might have to reach it anyway, as part of the equal protection argument. The statute treats parents like Ms. Jonsson, involved in custody cases against private attorneys, differently from those battling the state.
Most of the court's questions focused on three areas: whether a right to counsel could be inferred from the statute if a publicly funded party-guardian ad litem is in the case, whether the due process issue was properly before the court, and whether Ms. Jonsson was seeking a bright-line rather than fact-dependent ruling (and if so where the bright line should be drawn). On this last point, Ms. Jonsson argued for a "bright line rule" finding a right to counsel in every new custody case involving an unrepresented indigent parent and a private attorney, once the possibility of fee shifting has been exhausted. The court expressed concern that briefing did not sufficiently present the argument in opposition to a constitutional right to counsel. The court could avoid the constitutional issues by affirming the trial court's ruling that the statute confers a right to counsel when a party-guardian ad litem is involved and one or both parents are indigent. One week after oral argument the court asked for supplemental memoranda from parties and amici on possible mootness and on whether the due process issue is properly before the court.
for more information on the "Civil Gideon" Movement, visit the National Coalition for a Civil Right to Counsel by clicking on the title above;
http://www.civilrighttocounsel.org/
Right to Counsel in AK Supreme Court
On May 21st the Alaska Supreme Court heard oral argument in Office of Public Advocacy v. Alaska Court System and Jonsson. As reported in the October and December 2008 issues of Civil Right to Counsel Update,the case involves an appeal of a ruling that counsel must be appointed for an indigent parent in a custody matter, under both the equal protection and due process clauses of the Alaska constitution. Ms. Jonsson's equal protection claim, which the Alaska Court System endorsed, was that the statute violated equal protection by denying parents a right to an appointed attorney when the opposing parent was represented by private, rather than publicly-funded, counsel.
Ms. Jonsson's pro bono counsel argued that the due process claim was not properly before the court but that the court might have to reach it anyway, as part of the equal protection argument. The statute treats parents like Ms. Jonsson, involved in custody cases against private attorneys, differently from those battling the state.
Most of the court's questions focused on three areas: whether a right to counsel could be inferred from the statute if a publicly funded party-guardian ad litem is in the case, whether the due process issue was properly before the court, and whether Ms. Jonsson was seeking a bright-line rather than fact-dependent ruling (and if so where the bright line should be drawn). On this last point, Ms. Jonsson argued for a "bright line rule" finding a right to counsel in every new custody case involving an unrepresented indigent parent and a private attorney, once the possibility of fee shifting has been exhausted. The court expressed concern that briefing did not sufficiently present the argument in opposition to a constitutional right to counsel. The court could avoid the constitutional issues by affirming the trial court's ruling that the statute confers a right to counsel when a party-guardian ad litem is involved and one or both parents are indigent. One week after oral argument the court asked for supplemental memoranda from parties and amici on possible mootness and on whether the due process issue is properly before the court.
for more information on the "Civil Gideon" Movement, visit the National Coalition for a Civil Right to Counsel by clicking on the title above;
http://www.civilrighttocounsel.org/
Sunday, June 28, 2009
Supreme Court Rules Student w/ Disabilities Entitled to Private Education @ Public Expense
This is not a joke. Monday, the U.S. Supreme Court issued a 6-3 decision that required an Oregon public school district to pay a $5,200 monthly tuition (plus fees) for a private boarding school for a high-school senior whose psychologist had diagnosed him with ADHD, depression, math disorder and cannabis abuse.
Also not a joke: The Obama administration had urged the big bench to so rule. Thus the Individuals with Disabilities Education Act (IDEA), which mandates that all "children with disabilities" have the right to a "free appropriate public education," is turning into a cash cow for disability lawyers and private schools. According to an amicus brief filed by Obama's solicitor general, Elena Kagan, Oregon's Forest Grove School District had tested the student -- known as T.A. -- in 2001, but determined that he had no learning disabilities; specialists did not test for Attention Deficit Hyperactivity Disorder (ADHD), although they suspected he had it. Parents and school officials agreed to take a "wait and see" approach.
As he continued to have trouble in public school, T.A.'s mother e-mailed school officials that summer suggesting "there must be some method of teaching more appropriate for him."
In 2002, T.A. started using marijuana. In March 2003, Kagan wrote, T.A.'s parents sent the boy -- then a junior -- to a psychologist who diagnosed him with "ADHD, depression, math disorder, and cannabis abuse" and recommended that he be admitted to a residential program. The parents pulled T.A. from school, sent him to a three-week wilderness program, and then to the Mount Bachelor Academy, which specializes in students with "learning disabilities, substance abuse, and behavioral problems." The parents requested an independent hearing in April 2003 to get taxpayers to pay their son's tuition, as per the Individuals with Disabilities Education Act as the school district again determined that T.A.'s disabilities did not merit special education. But in January 2004, a hearing officer found that T.A. had ADHD and Mount Bachelor was appropriate for him.
A district court found against the parents. The Ninth Circuit Court of Appeals reversed the district court. Monday, the Supreme Court ruled that taxpayers should foot the bill for T.A.'s private boarding school.
At issue was a 1997 revision of the IDEA. Dissenting Justice David Souter argued the revision banned subsidizing parents' decision to send their kids to private school without getting approval from the district. The majority ruling, written by Justice John Paul Stevens and joined by conservative and liberal justices, argued that the revision did not change the law.
Manhattan Institute education senior fellow Jay P. Greene argued that Souter's dissent -- joined by two bench conservatives -- "was unreasonable in raising alarms about costs."
"The aggregate burden of this kind of policy is a tiny, tiny fraction of aggregate spending," said Greene.
On the other hand, the court arguably engages in policy-making when it tells districts how they must spend valuable education dollars.
Walter Olson of overlawyered.com nailed the problem with the majority ruling when he opined in an e-mail, "The impulse to get a better shake for one's kid is universal, but it's disproportionately wealthy and clever parents, with their hired lawyers and experts, who succeed in using these rules to obtain a private school education at public expense. In this case, the question was whether parents should at least try the public schools' proffer of special-ed services before declaring them inadequate, which doesn't seem to me to be too much to ask."
And what a test case. You could understand the court's order for tuition payments for private school for a severely disabled child -- but not a teenager who had managed to graduate without any special education from kindergarten to the 11th grade, when he developed a marijuana problem.
The Obama administration blithely went along because, as Solicitor General Kagan wrote, it would be wrong to leave parents with "the choice of leaving the child in an inappropriate placement or paying for an appropriate placement in a private school."
Sadly, many parents face a similar dilemma. But only parents with the resources to game experts (who will diagnose a disability) and lawyers stand to win full boarding school tuition.
Noting that Souter's dissent was joined by conservative Justices Antonin Scalia and Clarence Thomas, Olson noted, "I'm still trying to figure out why being progressive on this issue means siding with the private schools and affluent parents, while the conservative justices are the ones to defend the public school ideal of universal service."
It's one of those nice people things. The government has expanded the notion of disability to the point of absurdity. But nice people refuse to look at the impending drain on public school budgets, or how one child's boarding school tuition can mean that much less funding for all the other students' educational needs.
http://townhall.com/columnists/DebraJSaunders/2009/06/28/disability,_inc?page=full&comments=true
Also not a joke: The Obama administration had urged the big bench to so rule. Thus the Individuals with Disabilities Education Act (IDEA), which mandates that all "children with disabilities" have the right to a "free appropriate public education," is turning into a cash cow for disability lawyers and private schools. According to an amicus brief filed by Obama's solicitor general, Elena Kagan, Oregon's Forest Grove School District had tested the student -- known as T.A. -- in 2001, but determined that he had no learning disabilities; specialists did not test for Attention Deficit Hyperactivity Disorder (ADHD), although they suspected he had it. Parents and school officials agreed to take a "wait and see" approach.
As he continued to have trouble in public school, T.A.'s mother e-mailed school officials that summer suggesting "there must be some method of teaching more appropriate for him."
In 2002, T.A. started using marijuana. In March 2003, Kagan wrote, T.A.'s parents sent the boy -- then a junior -- to a psychologist who diagnosed him with "ADHD, depression, math disorder, and cannabis abuse" and recommended that he be admitted to a residential program. The parents pulled T.A. from school, sent him to a three-week wilderness program, and then to the Mount Bachelor Academy, which specializes in students with "learning disabilities, substance abuse, and behavioral problems." The parents requested an independent hearing in April 2003 to get taxpayers to pay their son's tuition, as per the Individuals with Disabilities Education Act as the school district again determined that T.A.'s disabilities did not merit special education. But in January 2004, a hearing officer found that T.A. had ADHD and Mount Bachelor was appropriate for him.
A district court found against the parents. The Ninth Circuit Court of Appeals reversed the district court. Monday, the Supreme Court ruled that taxpayers should foot the bill for T.A.'s private boarding school.
At issue was a 1997 revision of the IDEA. Dissenting Justice David Souter argued the revision banned subsidizing parents' decision to send their kids to private school without getting approval from the district. The majority ruling, written by Justice John Paul Stevens and joined by conservative and liberal justices, argued that the revision did not change the law.
Manhattan Institute education senior fellow Jay P. Greene argued that Souter's dissent -- joined by two bench conservatives -- "was unreasonable in raising alarms about costs."
"The aggregate burden of this kind of policy is a tiny, tiny fraction of aggregate spending," said Greene.
On the other hand, the court arguably engages in policy-making when it tells districts how they must spend valuable education dollars.
Walter Olson of overlawyered.com nailed the problem with the majority ruling when he opined in an e-mail, "The impulse to get a better shake for one's kid is universal, but it's disproportionately wealthy and clever parents, with their hired lawyers and experts, who succeed in using these rules to obtain a private school education at public expense. In this case, the question was whether parents should at least try the public schools' proffer of special-ed services before declaring them inadequate, which doesn't seem to me to be too much to ask."
And what a test case. You could understand the court's order for tuition payments for private school for a severely disabled child -- but not a teenager who had managed to graduate without any special education from kindergarten to the 11th grade, when he developed a marijuana problem.
The Obama administration blithely went along because, as Solicitor General Kagan wrote, it would be wrong to leave parents with "the choice of leaving the child in an inappropriate placement or paying for an appropriate placement in a private school."
Sadly, many parents face a similar dilemma. But only parents with the resources to game experts (who will diagnose a disability) and lawyers stand to win full boarding school tuition.
Noting that Souter's dissent was joined by conservative Justices Antonin Scalia and Clarence Thomas, Olson noted, "I'm still trying to figure out why being progressive on this issue means siding with the private schools and affluent parents, while the conservative justices are the ones to defend the public school ideal of universal service."
It's one of those nice people things. The government has expanded the notion of disability to the point of absurdity. But nice people refuse to look at the impending drain on public school budgets, or how one child's boarding school tuition can mean that much less funding for all the other students' educational needs.
http://townhall.com/columnists/DebraJSaunders/2009/06/28/disability,_inc?page=full&comments=true
Thursday, June 4, 2009
It's OK to Taser a suspect to get a 2nd DNA sample, after cops botch 1st one, NY judge rules
Thursday, June 04, 2009
The suspect, who was accused of a shooting and robbery, had given a sample earlier, but the department sent it to the wrong lab. He refused to give another mouth swab, so they Tasered him. (Shockingly, he agreed to give a sample after that.) The judge said that it's OK to use reasonable force to enforce a court order, though it's rare to use a Taser in these cases.
Thursday, June 04, 2009 at 09:00 AM in Police administration
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http://blogs.kansascity.com/crime_scene/2009/06/its-ok-to-taser-a-suspect-so-you-can-get-a-dna-sample-ny-judge-rules.html
The suspect, who was accused of a shooting and robbery, had given a sample earlier, but the department sent it to the wrong lab. He refused to give another mouth swab, so they Tasered him. (Shockingly, he agreed to give a sample after that.) The judge said that it's OK to use reasonable force to enforce a court order, though it's rare to use a Taser in these cases.
Thursday, June 04, 2009 at 09:00 AM in Police administration
TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451b1b869e2011570bed0b6970b
http://blogs.kansascity.com/crime_scene/2009/06/its-ok-to-taser-a-suspect-so-you-can-get-a-dna-sample-ny-judge-rules.html
Bullet-Proof Yourself
Damage Control for You & Your Business Through Crisis Communication
An Interesting Blog
"Insights and analysis of the most pressing issues facing companies, countries and brands today. This is the blog for bulletproofing a reputation when it matters most"
Better name for it is Big Business BS or Propaganda Central
(and a little bit about law, naturally, for we are a Litigation Nation!)
Click on title above to visit the site;
http://www.bulletproofblog.com/
An Interesting Blog
"Insights and analysis of the most pressing issues facing companies, countries and brands today. This is the blog for bulletproofing a reputation when it matters most"
Better name for it is Big Business BS or Propaganda Central
(and a little bit about law, naturally, for we are a Litigation Nation!)
Click on title above to visit the site;
http://www.bulletproofblog.com/
Humane Society of the United States v. Amazon. com; Supporting Animal Cruelty
Amazon.Com Supporting Animal Cruelty
by Jean-Pierre Ruiz
Jean-Pierre Ruiz is a Washington State-based attorney, practicing animal law and corporate law for non-profit organizations. Jean-Pierre received his engineering degree from McGill University, and his law degree from IIT Chicago-Kent College of Law where he was on the Dean’s List. Jean-Pierre was a member of the school’s nationally-recognized Trial Advocacy Team. Jean-Pierre clerked for Judge Warren Wolfson, author of numerous trial advocacy books. Jean-Pierre combines his passion for animal well-being with empathy, sympathy and compassion He inspires trust, confidence and believes in zealous, but civil, representation. Jean-Pierre is a member of the Animal Legal Defense Fund.
--------------
In an age where the ethics and morality of executives have been called into ever greater question, where the means justify the end, and extracting the very last penny from the marketplace is more important than making ethically and morally sound decisions, it should come as no surprise that Amazon.com would rather make a few more pennies than take a stand against animal abuse and cruelty.
In the last few weeks, the press has been reporting that Amazon.com was selling Feathered Warrior, a cockfighting magazine. However, today’s perusal of Amazon.com’s choices also reveals such “great” reading as:
The Game Cock: From The Shell To The Pit - A Comprehensive Treatise On Gameness, Selecting, Mating, Breeding, Walking and Conditioning, etc. (History of Cockfighting Series) - $40.45
The Art of Cockfigthing – A Handbook for Beginners and Old Timers - $34.99
Cockfighters: The Interviews (DVD) - $85
Handling and Nursing the Gamecock - $26.95
The Game Cock – Being a Practical Treatise on Breeding, Rearing, Training, Feeding, Trimming, Mains, Heeling, Spurs, etc. - $26.95
(See, the link to Amazon.com's "choice" literature below)
Cockfighting is an “activity” involving two roosters thrown into a pit, called a cockpit, to fight -- sometimes to the death. These are birds specially bred for aggressiveness toward other males, stamina and strength and are “equipped” with 3-inch long razor-sharp metal or plastic spurs, resembling curved ice-picks, which the birds are taught to aggressively use. Fights can last from a few minutes to over half an hour and usually results in the death of the one or both of the “combatants.” . Common injuries include punctured lungs, broken bones, and pierced eyes.
Cockfighting is illegal in all 50 states, and transporting the birds or cockfighting paraphernalia across state lines is now a federal offense. Of course, that is not say that cockfighting (much like dog fighting) does not go on. Law enforcement has connected cockfighting to drug use and distribution, as well as acts of violence. However, the primary purpose of cockfighting is gambling and thousands of dollars can be wagered on a single fight.
Amazon.com, led by its CEO Jeff Bezos, has argued that it has a right to sell these items under the Free Speech clause of the Constitution. However, Mr. Bezos forgets that just because you have a “right” does not make it “right.” Perhaps Mr. Bezos believes that the means justifies the end, and damn the moral or ethical stance, when it comes to increasing Amazon.com’s balance sheet and, no doubt, his personal bank account.
For the fiscal year of 2008, Amazon.com reported that revenues increased by 39% to a total of $14.84B (yes, billions), while profits increased by 69% to a total of $655MM. Amazon.com does not break revenues and profits it makes on each item it sells.
The Humane Society of the United States provides a link to send Mr. Bezos an email requesting that he stop selling animal cruelty books and DVDs (see the link below).
For more info: Amazon.com's link to cockfighting books and magazine: www.amazon.com/Grit-and-Steel/dp/B00007AXOU/ref=sr_1_1; HSUS link to send Mr. Bezos a letter: community.hsus.org/campaign/US_2008_amazon_fighting4
PT 2
In my last posting, I discussed how Amazon.com is breaking federal law and supporting animal cruelty by selling certain material depicting acts of, and advocating for, animal cruelty. Some people have interpreted my position to mean that I am trying to censor what Amazon.com sells. They are partly right, and partly wrong.
Selling material which depicts, and advocates for, animal cruelty is a violation of federal laws
The material presently on sale on Amazon.com’s website both depicts animal cruelty and advocates for it. For example, Feathered Warrior advertises fighting animals and paraphernalia – including steroids and other drugs for the animals - for sale, as well as the venue of upcoming fights.
Every state has laws against animal cruelty. Furthermore, there are two federal laws which are central to this issue. Namely, the Animal Welfare Act and the Federal Depiction of Animal Cruelty Act (See, “For more info” for a link).
Section 2156 of the Animal Welfare Act states:
(c) Use of Postal Service or other interstate instrumentality for promoting or furthering animal fighting venture
It shall be unlawful for any person to knowingly use the mail service of the United States Postal Service or any instrumentality of interstate commerce for commercial speech for purposes of promoting or in any other manner furthering an animal fighting venture except as performed outside the limits of the States of the United States.
Section 48 of the Federal Depiction of Animal Cruelty Act states:
(a) Creation, Sale, or Possession.— Whoever knowingly creates, sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain, shall be fined under this title or imprisoned not more than 5 years, or both.
(b) Exception.— Subsection (a) does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.
(c) Definitions.— In this section—
(1) the term “depiction of animal cruelty” means any visual or auditory depiction, including any photograph, motion-picture film, video recording, electronic image, or sound recording of conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if such conduct is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place, regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the State; and
(See, “For more info” for a link)
The Humane Society of the United States has sued Amazon.com alleging that this latter is in violation, among others, of both of these acts. (See, “For more info” for a link)
Amazon.com has responded that it is entitled to sell this material from a legal standpoint (regardless of whether it’s moral and/or ethical) because the acts infringe on its right to free speech which is enshrined in the First Amendment to the US Constitution and states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
(See, “For more info” for a link)
Free Speech v. the Animal Welfare Act and the Federal Depiction of Animal Cruelty Act
It is important to recognize that the Government does not limit speech. We are still free to say, write and publish about anything we like. Rather, the Government can only enact laws that punish certain types of speech.
It could be argued – and often is – that any limitation on free speech ultimately results in censorship and tyranny. If right, the opposite of the argument must necessarily be true. That is, that no limitation on free speech ultimately results in anarchy. Regardless of one’s opinions on the subject, the US Supreme Court has placed limits on the concept of free speech. In essence, the Court placed a value on certain forms of speech relative to what we consider other ideals such as public safety, national security, justice, etc. Hence, the First Amendment does not protect statements which are said with the intent to provoke violent acts or incite illegal actions. Furthermore, the First Amendment does not protect libelous or slanderous statements, or obscene materials. The First Amendment also does not protect speech which conflicts with other legitimate and compelling social or governmental interests where regulations are content-neutral. Contested speech must have religious, political, scientific, educational, journalistic, historical or artistic value to be protected.
At issue from a legal standpoint, therefore, is whether the First Amendment will “protect” the right to sell material which depicts, and advocates for, animal cruelty, or whether the Court will recognize the Government’s compelling interest in prohibiting the sale of such material. That is, does material which depicts animal cruelty has any religious, political, scientific, educational, journalistic, historical or artistic value.
A case presently before the US Supreme Court may be partially determinative of HSUS’s case against Amazon.com which is still before the court.
US v. Stevens
In 1999 a federal court sentenced a Virginia man to three years in prison for selling dog fighting videos in violation of the Federal Depiction of Animal Cruelty Act (the Act).
In US v. Stevens, the Defendant – a pit bull enthusiast – was convicted by a Federal Court in Pennsylvania of violating the Act for selling videos of pit bull fights and pit bulls attacking other animals. The trial court determined that the videos had no religious, political, scientific, educational, journalistic, historical or artistic value and sentenced Stevens to 37 months in jail. On appeal, the 3rd Circuit Court of Appeal was unwilling to create a new category of unprotected speech and ruled that the Act violated the First Amendment because the Government had failed to show a compelling interest, nor show that the Act was narrowly tailored to achieve such interest, or that it provides the least restrictive means to achieve the Government's interest. The Court noted that the Government had failed to show a sufficient link between the law and the Government’s interest in preventing animal abuse, unlike existing state laws criminalizing animal cruelty.
Before the US Supreme Court, the Government will argue that depiction of animal cruelty is not worthy of protection under the First Amendment. In turn, Stevens will argue that showing the proper way to train a pit bull to hunt and further showing pit bull fights to show the difference between a pit bull trained to fight and one trained to hunt has educational value.
If the Court agrees with the Government, it will mark the first time since 1982 that a category of speech is excluded from protection. In 1982, the Court unanimously upheld a New York law banning the sale of child pornography under the theory that the Government had a compelling interest in protecting children from sexual abuse and exploitation.
Regardless of the Court’s ruling, Amazon.com should stop selling this material
First, it important to note that Amazon.com’s own policies are that it will not sell a broad range of objectionable, but lawful, material including sexually explicit material, crime-scene photos, human organs or body parts (?), items that promote racism, hatred or religious intolerance, and anything else “[Amazon.com] deems offensive.” (See, “For more info” for a link). In fact, since HSUS filed suit, Amazon.com removed a video titled “Unleashed” from its website. “Unleashed” is a two-hour video in which some 20 dogs are intentionally maimed, mutilated, tortured, wounded or killed in some 12 dog fights. Some of the dogs in the video are puppies, with one being described as being 11 months old. Over the course of the two-hour video, “Unleashed” depicts thousands of injuries, including one dog having his throat ripped out. Other injuries include large pieces of skins ripped from dogs’ shoulders, necks, faces, the top of their heads. Escape is impossible as the dogs are forcefully kept inside the pit. The final “chapter” of “Unleashed” contains more than 30 minutes of 10 seconds clips alternating between dog fight sequences and clips of nude women undertaking various sexual acts.
I think we can all agree that Amazon.com is selling this material in order to make money. In fact, the “Feathered Warrior” consistently ranks in the top 1% of all magazine subscriptions sold on Amazon.com.
Perhaps we can also agree that there is a difference between material that examines acts we deem immoral and/or unethical (such as WWI, Genocide, 9/11, animal fighting, etc.) from a historical perspective, and material which shows how to perform those acts. I would hope that none of the people who posted comments advocating for Amazon.com’s “right” to sell material depicting, and advocating for, animal cruelty, would also advocate for Amazon.com’s “right” to sell material which would show people how to build a bomb, plant it on the premises of a federal building, and detonate it undetected; or fly a jumbo jet into a sky scrapper; or, run a children pornographic ring; and on, and on.
The connection between acts of animal cruelty and acts of human violence are well documented. For example, a 1983 study noted that more than a third of the children referred to New Jersey’s Division of Youth and Family Services for suspected child abuse were abusive to animals. A 1995 noted that 32% of the pet-owning victims of domestic abuse reported that one or more of their children had hurt or killed a pet. A subsequent study conducted in 1997 reported that 50 of the largest shelters for battered women in the United States found that 85% of women and 63% of children entering shelters discussed incidents of pet abuse in the family. Another study in 1997 by the Massachusetts Society for the Prevention of Cruelty to Animals and Northeastern University found that 70% of all animal abusers have committed at least one other criminal offense and that almost 40% had committed violent crimes against people. The study also found that over a 20-year period, a group of individuals who had abused animals as youths were five times more likely to commit violent crimes, four times more likely to commit property crimes and three times more likely to have drug or disorderly conduct offenses than a matched group of non-animal abusers In fact, the FBI now considers animal cruelty to one of the predictors of violence and considers past animal abuse when profiling serial killers. The US Department of Justice emphasizes the importance of including information about past animal abuse when assessing youth who are at risk of committing inter-personal violence. (See, links at “For more info”).
Therefore, I would argue that, from an ethical and moral point of view, Amazon.com should stop selling material which depicts, and advocates for, acts of animal cruelty.
In the end, each of us will make a choice as to what activities propel us forward as a species worthy of survival. I do not believe that acts of animal cruelty profit us as a species or as a society. And since cruelty to animals is linked to acts of human violence, perhaps acts of kindness to animals will lead to acts of kindness toward one another and a more peaceful world.
Finally, my two dogs are pleased to announce that they are indeed treated very well (see picture) and wish every dog out there happy trails.
In my next blog, we’ll take a look at the world of animal fighting and its documented effect on our society.
For more info: Animal Welfare Act: www.aphis.usda.gov/animal_welfare/publications_and_reports.shtml; Federal Depiction of Animal Cruelty Act: thomas.loc.gov/cgi-bin/query/D; HSUS's complaint: www.animallaw.info/pleadings/pbusdcamazon_hsus.htm; US Constitution: www.usconstitution.net/const.html#Am1; Amazon.com's policies: www.amazon.com/gp/help/customer/display.html; Domestic violence and cruelty to animals, F. R. Ascione: www.vachss.com/guest_dispatches/ascione_2.html; The Abuse of Animals and Domestic Violence, F. R. Ascione: www.vachss.com/guest_dispatches/ascione_1.html; The Care of Pets Within Child Abusing Families, L. DeViney, J. Dickert, R. Lockwood, 1983 - International Journal for the Study of Animal Problems 4(4), 321-336; PAWS - The Animal Abuse - Human Violence Link: www.paws.org/help/report/connection.php; Animal Cruelty: Pathway to Violence Against People, K. M. Heide, Altimara Press (2003); Cruelty to Animals and Interpersonal Violence: Readings in Research and Application, F. R. Ascione, Purdue University (1998).
Jean-Pierre's Home Page
Click on title above to go there;
http://www.examiner.com/x-9726-Seattle-Pet-Laws-Examiner
by Jean-Pierre Ruiz
Jean-Pierre Ruiz is a Washington State-based attorney, practicing animal law and corporate law for non-profit organizations. Jean-Pierre received his engineering degree from McGill University, and his law degree from IIT Chicago-Kent College of Law where he was on the Dean’s List. Jean-Pierre was a member of the school’s nationally-recognized Trial Advocacy Team. Jean-Pierre clerked for Judge Warren Wolfson, author of numerous trial advocacy books. Jean-Pierre combines his passion for animal well-being with empathy, sympathy and compassion He inspires trust, confidence and believes in zealous, but civil, representation. Jean-Pierre is a member of the Animal Legal Defense Fund.
--------------
In an age where the ethics and morality of executives have been called into ever greater question, where the means justify the end, and extracting the very last penny from the marketplace is more important than making ethically and morally sound decisions, it should come as no surprise that Amazon.com would rather make a few more pennies than take a stand against animal abuse and cruelty.
In the last few weeks, the press has been reporting that Amazon.com was selling Feathered Warrior, a cockfighting magazine. However, today’s perusal of Amazon.com’s choices also reveals such “great” reading as:
The Game Cock: From The Shell To The Pit - A Comprehensive Treatise On Gameness, Selecting, Mating, Breeding, Walking and Conditioning, etc. (History of Cockfighting Series) - $40.45
The Art of Cockfigthing – A Handbook for Beginners and Old Timers - $34.99
Cockfighters: The Interviews (DVD) - $85
Handling and Nursing the Gamecock - $26.95
The Game Cock – Being a Practical Treatise on Breeding, Rearing, Training, Feeding, Trimming, Mains, Heeling, Spurs, etc. - $26.95
(See, the link to Amazon.com's "choice" literature below)
Cockfighting is an “activity” involving two roosters thrown into a pit, called a cockpit, to fight -- sometimes to the death. These are birds specially bred for aggressiveness toward other males, stamina and strength and are “equipped” with 3-inch long razor-sharp metal or plastic spurs, resembling curved ice-picks, which the birds are taught to aggressively use. Fights can last from a few minutes to over half an hour and usually results in the death of the one or both of the “combatants.” . Common injuries include punctured lungs, broken bones, and pierced eyes.
Cockfighting is illegal in all 50 states, and transporting the birds or cockfighting paraphernalia across state lines is now a federal offense. Of course, that is not say that cockfighting (much like dog fighting) does not go on. Law enforcement has connected cockfighting to drug use and distribution, as well as acts of violence. However, the primary purpose of cockfighting is gambling and thousands of dollars can be wagered on a single fight.
Amazon.com, led by its CEO Jeff Bezos, has argued that it has a right to sell these items under the Free Speech clause of the Constitution. However, Mr. Bezos forgets that just because you have a “right” does not make it “right.” Perhaps Mr. Bezos believes that the means justifies the end, and damn the moral or ethical stance, when it comes to increasing Amazon.com’s balance sheet and, no doubt, his personal bank account.
For the fiscal year of 2008, Amazon.com reported that revenues increased by 39% to a total of $14.84B (yes, billions), while profits increased by 69% to a total of $655MM. Amazon.com does not break revenues and profits it makes on each item it sells.
The Humane Society of the United States provides a link to send Mr. Bezos an email requesting that he stop selling animal cruelty books and DVDs (see the link below).
For more info: Amazon.com's link to cockfighting books and magazine: www.amazon.com/Grit-and-Steel/dp/B00007AXOU/ref=sr_1_1; HSUS link to send Mr. Bezos a letter: community.hsus.org/campaign/US_2008_amazon_fighting4
PT 2
In my last posting, I discussed how Amazon.com is breaking federal law and supporting animal cruelty by selling certain material depicting acts of, and advocating for, animal cruelty. Some people have interpreted my position to mean that I am trying to censor what Amazon.com sells. They are partly right, and partly wrong.
Selling material which depicts, and advocates for, animal cruelty is a violation of federal laws
The material presently on sale on Amazon.com’s website both depicts animal cruelty and advocates for it. For example, Feathered Warrior advertises fighting animals and paraphernalia – including steroids and other drugs for the animals - for sale, as well as the venue of upcoming fights.
Every state has laws against animal cruelty. Furthermore, there are two federal laws which are central to this issue. Namely, the Animal Welfare Act and the Federal Depiction of Animal Cruelty Act (See, “For more info” for a link).
Section 2156 of the Animal Welfare Act states:
(c) Use of Postal Service or other interstate instrumentality for promoting or furthering animal fighting venture
It shall be unlawful for any person to knowingly use the mail service of the United States Postal Service or any instrumentality of interstate commerce for commercial speech for purposes of promoting or in any other manner furthering an animal fighting venture except as performed outside the limits of the States of the United States.
Section 48 of the Federal Depiction of Animal Cruelty Act states:
(a) Creation, Sale, or Possession.— Whoever knowingly creates, sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain, shall be fined under this title or imprisoned not more than 5 years, or both.
(b) Exception.— Subsection (a) does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.
(c) Definitions.— In this section—
(1) the term “depiction of animal cruelty” means any visual or auditory depiction, including any photograph, motion-picture film, video recording, electronic image, or sound recording of conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if such conduct is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place, regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the State; and
(See, “For more info” for a link)
The Humane Society of the United States has sued Amazon.com alleging that this latter is in violation, among others, of both of these acts. (See, “For more info” for a link)
Amazon.com has responded that it is entitled to sell this material from a legal standpoint (regardless of whether it’s moral and/or ethical) because the acts infringe on its right to free speech which is enshrined in the First Amendment to the US Constitution and states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
(See, “For more info” for a link)
Free Speech v. the Animal Welfare Act and the Federal Depiction of Animal Cruelty Act
It is important to recognize that the Government does not limit speech. We are still free to say, write and publish about anything we like. Rather, the Government can only enact laws that punish certain types of speech.
It could be argued – and often is – that any limitation on free speech ultimately results in censorship and tyranny. If right, the opposite of the argument must necessarily be true. That is, that no limitation on free speech ultimately results in anarchy. Regardless of one’s opinions on the subject, the US Supreme Court has placed limits on the concept of free speech. In essence, the Court placed a value on certain forms of speech relative to what we consider other ideals such as public safety, national security, justice, etc. Hence, the First Amendment does not protect statements which are said with the intent to provoke violent acts or incite illegal actions. Furthermore, the First Amendment does not protect libelous or slanderous statements, or obscene materials. The First Amendment also does not protect speech which conflicts with other legitimate and compelling social or governmental interests where regulations are content-neutral. Contested speech must have religious, political, scientific, educational, journalistic, historical or artistic value to be protected.
At issue from a legal standpoint, therefore, is whether the First Amendment will “protect” the right to sell material which depicts, and advocates for, animal cruelty, or whether the Court will recognize the Government’s compelling interest in prohibiting the sale of such material. That is, does material which depicts animal cruelty has any religious, political, scientific, educational, journalistic, historical or artistic value.
A case presently before the US Supreme Court may be partially determinative of HSUS’s case against Amazon.com which is still before the court.
US v. Stevens
In 1999 a federal court sentenced a Virginia man to three years in prison for selling dog fighting videos in violation of the Federal Depiction of Animal Cruelty Act (the Act).
In US v. Stevens, the Defendant – a pit bull enthusiast – was convicted by a Federal Court in Pennsylvania of violating the Act for selling videos of pit bull fights and pit bulls attacking other animals. The trial court determined that the videos had no religious, political, scientific, educational, journalistic, historical or artistic value and sentenced Stevens to 37 months in jail. On appeal, the 3rd Circuit Court of Appeal was unwilling to create a new category of unprotected speech and ruled that the Act violated the First Amendment because the Government had failed to show a compelling interest, nor show that the Act was narrowly tailored to achieve such interest, or that it provides the least restrictive means to achieve the Government's interest. The Court noted that the Government had failed to show a sufficient link between the law and the Government’s interest in preventing animal abuse, unlike existing state laws criminalizing animal cruelty.
Before the US Supreme Court, the Government will argue that depiction of animal cruelty is not worthy of protection under the First Amendment. In turn, Stevens will argue that showing the proper way to train a pit bull to hunt and further showing pit bull fights to show the difference between a pit bull trained to fight and one trained to hunt has educational value.
If the Court agrees with the Government, it will mark the first time since 1982 that a category of speech is excluded from protection. In 1982, the Court unanimously upheld a New York law banning the sale of child pornography under the theory that the Government had a compelling interest in protecting children from sexual abuse and exploitation.
Regardless of the Court’s ruling, Amazon.com should stop selling this material
First, it important to note that Amazon.com’s own policies are that it will not sell a broad range of objectionable, but lawful, material including sexually explicit material, crime-scene photos, human organs or body parts (?), items that promote racism, hatred or religious intolerance, and anything else “[Amazon.com] deems offensive.” (See, “For more info” for a link). In fact, since HSUS filed suit, Amazon.com removed a video titled “Unleashed” from its website. “Unleashed” is a two-hour video in which some 20 dogs are intentionally maimed, mutilated, tortured, wounded or killed in some 12 dog fights. Some of the dogs in the video are puppies, with one being described as being 11 months old. Over the course of the two-hour video, “Unleashed” depicts thousands of injuries, including one dog having his throat ripped out. Other injuries include large pieces of skins ripped from dogs’ shoulders, necks, faces, the top of their heads. Escape is impossible as the dogs are forcefully kept inside the pit. The final “chapter” of “Unleashed” contains more than 30 minutes of 10 seconds clips alternating between dog fight sequences and clips of nude women undertaking various sexual acts.
I think we can all agree that Amazon.com is selling this material in order to make money. In fact, the “Feathered Warrior” consistently ranks in the top 1% of all magazine subscriptions sold on Amazon.com.
Perhaps we can also agree that there is a difference between material that examines acts we deem immoral and/or unethical (such as WWI, Genocide, 9/11, animal fighting, etc.) from a historical perspective, and material which shows how to perform those acts. I would hope that none of the people who posted comments advocating for Amazon.com’s “right” to sell material depicting, and advocating for, animal cruelty, would also advocate for Amazon.com’s “right” to sell material which would show people how to build a bomb, plant it on the premises of a federal building, and detonate it undetected; or fly a jumbo jet into a sky scrapper; or, run a children pornographic ring; and on, and on.
The connection between acts of animal cruelty and acts of human violence are well documented. For example, a 1983 study noted that more than a third of the children referred to New Jersey’s Division of Youth and Family Services for suspected child abuse were abusive to animals. A 1995 noted that 32% of the pet-owning victims of domestic abuse reported that one or more of their children had hurt or killed a pet. A subsequent study conducted in 1997 reported that 50 of the largest shelters for battered women in the United States found that 85% of women and 63% of children entering shelters discussed incidents of pet abuse in the family. Another study in 1997 by the Massachusetts Society for the Prevention of Cruelty to Animals and Northeastern University found that 70% of all animal abusers have committed at least one other criminal offense and that almost 40% had committed violent crimes against people. The study also found that over a 20-year period, a group of individuals who had abused animals as youths were five times more likely to commit violent crimes, four times more likely to commit property crimes and three times more likely to have drug or disorderly conduct offenses than a matched group of non-animal abusers In fact, the FBI now considers animal cruelty to one of the predictors of violence and considers past animal abuse when profiling serial killers. The US Department of Justice emphasizes the importance of including information about past animal abuse when assessing youth who are at risk of committing inter-personal violence. (See, links at “For more info”).
Therefore, I would argue that, from an ethical and moral point of view, Amazon.com should stop selling material which depicts, and advocates for, acts of animal cruelty.
In the end, each of us will make a choice as to what activities propel us forward as a species worthy of survival. I do not believe that acts of animal cruelty profit us as a species or as a society. And since cruelty to animals is linked to acts of human violence, perhaps acts of kindness to animals will lead to acts of kindness toward one another and a more peaceful world.
Finally, my two dogs are pleased to announce that they are indeed treated very well (see picture) and wish every dog out there happy trails.
In my next blog, we’ll take a look at the world of animal fighting and its documented effect on our society.
For more info: Animal Welfare Act: www.aphis.usda.gov/animal_welfare/publications_and_reports.shtml; Federal Depiction of Animal Cruelty Act: thomas.loc.gov/cgi-bin/query/D; HSUS's complaint: www.animallaw.info/pleadings/pbusdcamazon_hsus.htm; US Constitution: www.usconstitution.net/const.html#Am1; Amazon.com's policies: www.amazon.com/gp/help/customer/display.html; Domestic violence and cruelty to animals, F. R. Ascione: www.vachss.com/guest_dispatches/ascione_2.html; The Abuse of Animals and Domestic Violence, F. R. Ascione: www.vachss.com/guest_dispatches/ascione_1.html; The Care of Pets Within Child Abusing Families, L. DeViney, J. Dickert, R. Lockwood, 1983 - International Journal for the Study of Animal Problems 4(4), 321-336; PAWS - The Animal Abuse - Human Violence Link: www.paws.org/help/report/connection.php; Animal Cruelty: Pathway to Violence Against People, K. M. Heide, Altimara Press (2003); Cruelty to Animals and Interpersonal Violence: Readings in Research and Application, F. R. Ascione, Purdue University (1998).
Jean-Pierre's Home Page
Click on title above to go there;
http://www.examiner.com/x-9726-Seattle-Pet-Laws-Examiner
Wednesday, June 3, 2009
Yahoo sues to get free fantasy football info
Last update: June 3, 2009 - 2:26 PM
Featured comment
ironic
This is funny because Yahoo charges you for access to same day, live stats in all their fantasy leagues. The application is called Stat … read more Tracker. What a joke.
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Internet giant Yahoo Inc. has filed suit in Minnesota, demanding free access to the player information that drives its popular fantasy football game.
Yahoo alleges that the NFL Players Association and corporation has no right to charge for the use of players pictures, biographies and on-field statistics, according to its suit filed this week in federal court. In the past, the NFL Players Association has asserted that those things fall under intellectual property rights.
Yahoo's fantasy football site relies upon such real-time statistics. Participants use them to decide which players to draft and trade throughout the football season.
The issue of whether companies can use league information for fantasy sports sites has come up before. Then, the sport was baseball.
In 2007, the United States Court of Appeals for the Eight Circuit decided that CBC Distribution and Marketing Inc. could use Major League Baseball players' names and statistics for its fantasy baseball products -- without paying a licensing fee.
JENNA ROSS
http://www.startribune.com/local/46823867.html?elr=KArksUUUU
Featured comment
ironic
This is funny because Yahoo charges you for access to same day, live stats in all their fantasy leagues. The application is called Stat … read more Tracker. What a joke.
-----------
Internet giant Yahoo Inc. has filed suit in Minnesota, demanding free access to the player information that drives its popular fantasy football game.
Yahoo alleges that the NFL Players Association and corporation has no right to charge for the use of players pictures, biographies and on-field statistics, according to its suit filed this week in federal court. In the past, the NFL Players Association has asserted that those things fall under intellectual property rights.
Yahoo's fantasy football site relies upon such real-time statistics. Participants use them to decide which players to draft and trade throughout the football season.
The issue of whether companies can use league information for fantasy sports sites has come up before. Then, the sport was baseball.
In 2007, the United States Court of Appeals for the Eight Circuit decided that CBC Distribution and Marketing Inc. could use Major League Baseball players' names and statistics for its fantasy baseball products -- without paying a licensing fee.
JENNA ROSS
http://www.startribune.com/local/46823867.html?elr=KArksUUUU
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