Court Cases Decided in Favor of Parental Rights

Court Cases Decided

in Favor

of Parental Rights

I.      INTRODUCTORY DEFINITIONS and LEGAL CONCEPTS BASED in

        ROMAN LAW

(1) U.S. v. Franks D.C. N.J. 52f 2d 128 ( “If you leave your circumstances to the lawyers, you have no self-interest and care not for freedom.  Rather, you are are happy with slavery rather than free-dom-inion. if you accept a lawyer, you’ve already lost your case. His first duty is to the courts, not to the client;”

(2) (Spilker v. Hanson 158 F. 2d 35,58 U.S. App. D.C. 206); (”Clients are also called wards of the court in regard to their relationship with their attorneys;” 

(3) (Davis Committee v. Lonny, 290 Ky. ^44,162 S.W. 2d 189,190.) Wards of court: “infants and persons of unsound mind.” –Defined in Case (4) (CHENEY v. PRICE, 90 HUN, 238, 37 N.Y.S. 117) “A PERSON OF UNSOUND MIND IS ONE WHO, FROM INFIRMITY OF MIND, IS INCAPABLE OF MANAGING HIMSELF OR HIS AFFAIRS.” The term, therefore, includes  INSANE PERSONS, “IDIOTS AND IMBECILES.” When One Hires an Attorney or Lawyer, the Court Considers one in such a light–in these categories.

WARD: “A PERSON, ESPECIALLY AN INFANT, PLACED BY AUTHORITY OF LAW UNDER THE CARE OF A GUARDIAN.  One becomes a ward of the court when one hires an attorney, ..a attorney or a lawyer to handle one’s affairs.

NOW, WHAT IS A COURT?   A COURT IS “AN INCORPOREAL, POLITICAL BEING COMPOSED OF ONE OR MORE JUDGES WHO SIT AT FIXED TIMES AND PLACES ATTENDED BY PROPER OFFICERS, PURSUANT TO LAWFUL AUTHORITY, FOR THE ADMINISTRATION OF JUSTICE” (5) (STATE V. LE BOND, 108 . OHIO 51 126,140 N.E. 510,512).

Now we can see that a court is an INCORPOREAL BEING– “AN INCORPOREAL BEING IS DEFINED AS INCORPOREAL WITHOUT BODY NOT OF MATERIAL NATURE THE OPPOSITE OF “CORPOREAL. “

When one hires a lawyer or an attorney, one becomes non-existent and inside somebody’s  mind. At this point, one is no longer real, or, corporeal.  (6)  (LA CIV CODE LA. ART 460 SULLIVAN V. RICHARDSON 33,184,50,692).   INCORPOREAL THINGS: IN CIVIL LAW, “THINGS WHICH CAN NEITHER BE SEEN NOR TOUCHED SUCH AS CONSIST IN RIGHTS ONLY SUCH AS THE MIND ALONE CAN PERCEIVE.”

Source for Citations Listed Above:  “NOBLE MOORISH GOD,”  “Five Ways Unethical Lawyers Hurt their Clients;” “B.A.R. Lawyers ARE SELL=OUT TO THE DE-FACTO FORM OF GOVERNMENT,” www.youtube.com/watch?v=JoJLyHgvwzg, posted on Nevada State Personnel Watch by “Agent Provacateur”

EXCESSIVE FORCE CLAIM AGAINST POLICE OFFICER PURSUANT TO FOURTH AMENDMENT (NEWER DECISION)

Tolan v. Cotton,  572 U.S. _____ (Dec. May 05, 2014)

Supreme Court issued a  summary reversal in Tolan v. Cotton,  a case in which it said that the US Fifth Circuit Court of Appeals (Louisiana, Mississippi, Texas) had wrongly granted summary judgment to a police officer in a civil rights case. In articulating the factual context of the case, the Fifth Circuit failed to adhere to the axiom that in ruling on a motion for summary judgment, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 255(1986) . It’s the first time in 10 years that the court has ruled against a police officer in a qualified immunity case — (Hope v. Pelzer and Groh v. Ramirez are the most recent previous occasions, from 2003 and 2004).  

Franz v. United States, 707 F.2d 582 (1983)(Fourth and Fourteenth Amendment)-

Exercising the discretion vested in them by statute, various federal officials relocated and changed the identities of a government informant, his wife, and her three children by a former marriage, in return for the informant’s testimony against alleged leaders of organized crime. Unfortunately, this routine and otherwise unassailable procedure had the effect of severing the ongoing relationship between the children and their natural father. The father brought the present suit—on behalf of himself and his children—challenging the actions of the federal officials on a variety of constitutional and statutory grounds.

He sought declaratory and injunctive relief to enable him to reestablish contact with his children, and damages to compensate all of them for injuries sustained as a result of their separation. The District Court dismissed the complaint for failure to state a claim upon which relief can be granted.

“It is clear that “the requisites of the Due Process Clause” were not satisfied in the instant case. The defendants have never provided William with any kind of notice or opportunity to be heard. The Constitution certainly requires that much;”

“Holding the hearing before execution of the decision is particularly important where, as here, the deprivation of the protected interest might be irrevocable or might cause irreparable harm and where the decision will not turn on judgments that can sensibly be made on the basis of written submissions;

Taking as true the facts alleged in the complaint, we find that the administrators of the Witness Protection Program abrogated the constitutionally protected rights of the plaintiffs to one another’s companionship without

(1) affording the father requisite procedural protections,

(2) making a particularized finding and showing of a legitimate state interest sufficient to justify the infringement, or

(3) availing themselves of equally effective alternative solutions to the problem before them that would have been less restrictive of the plaintiffs’ rights. Accordingly, we reverse and remand for further proceedings; 

–“a parent’s right to the preservation of his relationship with his child derives from the fact that the parent’s achievement of a rich and rewarding life is likely to depend significantly on his ability to participate in the rearing of his offspring. A child’s corresponding right to protection from interference in the relationship derives from the psychic importance to him of being raised by a loving, responsive, reliable adult;”

“For the foregoing reasons, the District Court’s decision that the plaintiffs failed to state a claim for which relief could be granted is reversed. The case is remanded for further proceedings consistent with this opinion.”

Read also,  Johannes v. Sloan,  No. 79L0169 (Cir. Ct. Kankakee Cty., Ill. March 26, 1981) (noncustodial father denied access to daughter suffered severe emotional distress). where a noncustodial father was prevented from visiting his daughter for several years. He filed suit against his former wife seeking damages for intentional infliction of emotional distress.’09 Based on the defendant’s outrageous conduct and the plaintiff’s severe depression, the court recognized his claim and upheld the jury’s $150,000 damages award.These decisions reflect a willingness by the courts to go beyond the traditional contempt proceeding in order to compensate the noncustodial parent whose visitation rights have been obstructed. A finding of intentional infliction of emotional distress, however, is only possible if the interfering party’s conduct was outrageous and the noncustodial parent suffered severe emotional distress.

One parent’s loss of custody seriously restricts the amount of time the noncustodial parent sees the child. This loss of time together often weakens the emotional bond between the noncustodial parent and his child. J. WALLERSTEIN & J. KELLEY, SURVIVING THE MARITAL BREAKUP 122-46 (1980);

Court ordered visitation may provide for reasonable or liberal visitation rights with details to be worked out by the parties. C. FOOTE, R. LEvY & F. SANDER, CASES AND MATERIAL ON FAMILY LAW 431 (2d ed. 1976). Illinois’ policy is to grant liberal visitation rights. In Re Marriage of Brophy, 96 Ill. App. 3d 1108, 1112, 421 N.E.2d 1308, 1311 (1981). See generally Note, Visitation Beyond the Traditional Limitations, 60 IND. L.J. 190, 195 (1981) (discussion on various types of visitation agreements);

“One of the most important liberties afforded constitutional protection is the freedom of parents and children to maintain and develop their relationship;”

In Franz v. United States, 707 F.2d 582, 595 (D.C. Cir. 1983) the court held that noncustodial parents’ visitation rights are constitutionally protected. The court specifically found that the parent child relationship is a “liberty interest” protected under U.S. CONST. amend. XIV, 1, which specifically states: No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny any person within its jurisdiction the equal protection of the laws. Id. See Santosky v. Kramer, 455 U.S. 745, 753 (1982), where the court held the U.S. CONST. amend. XIV 1, protects the fundamental liberty interest of natural parents in the care, custody and management of their children.

Read also Stanley v. Illinois, 405 U.S. 636, 651 (1977) (unwed father constitutionally protected in retaining custody rights of his children after custodial mother died). Franz, 707 F.2d at 595, cf. Armstrong v. Manzo, 380 U.S. 545 (1965) (court held noncustodial parent’s right to maintain legal relationship with child constitutionally protected so that when custodial mother remarried her new spouse could not adopt child).

II.   COURT CASES DECIDED IN FAVOR OF PARENTAL RIGHTS OR that MIGHT

       OTHERWISE CONFLICT

       A.     NO “IMMUNITY” FOR GAL (guardian ad-litem for child)

Fox v. Wills, 822 F. 2d 1289 (Court of Special Appeals of Maryland, May 06, 2003).“No ‘immunity’ for a court-appointed guardian ad litem (“GAL”) for a minor child who caused child harm where GAL acted as an advocate for father who was suspected of sexually abusing the child

        B.     NO GOOD FAITH–“QUALIFIED”–“IMMUNITY” FOR SOCIAL WORKERS AND COUNTY DEFENDANTS; JURY VERDICT AWARD FOR COMPENSATORY DAMAGES FOR SOCIAL WORKER, COUNTY LIABLE FOR FAILURE TO TRAIN EMPLOYEES AND UNCONSTITUTIONAL POLICY OF WARRANTLESS CHILD “REMOVALS,” AND ATTORNEY’S FEES AFFIRMED

Franet v. County of Alameda, 291 Fed. Appx. 32, 36 (9th Cir. 2008, unpublished)– warrantless “removal” of mother, Franet’s, two children absent emergency where social worker defendant “removed” for ex-husband accused by defendant of suspicion of sexual abuse who did not live with mother and children, child subjected to sexual assault exam without mother’s knowledge or consent, mother hospitalized for nervous breakdown having only three calls with her children per week, children returned by judge after two (2) months, while hospitalized another social worker defendant who placed children in foster care took the opportunity to invade mother’s (Franet’s) privacy by looking at her medical records without Franet’s authorization or consent,reversed in part, remanded in part, affirmed in part, six issues (3 Franet, 3 defendant issues), 9th Circuit affirmed jury verdict in favor of Plaintiff–Appellee Franet of $ 220,000 in compensatory damages (-punitive damages awarded by jury) plus attorney’s fees and remanded for further trial on other issues for plaintiff

1.  Rogers V. County Of San Joaquin, 363 F.Supp.2d 1227 (2004)– Warrantless Removal

2.  Calabretta V. Floyd,  189 F.3d 808 (9th Cir.,1999) – Warrantless Entry and Strip Search of Child, No qualified “immunity” for social worker and police officer defendants where they coerced entry into home to investigate suspected child abuse, interrogation of a child, and strip search of a child, conducted without a search warrant and without special exigency

3.  Santosky V. Kramer, 455 U.S. 745 (1982) – Due Process (Fourteenth Amendment, Fundamental Liberty Interest in the “Care, Custody, and Control” of One’s Child(ren))

4.  Pierce v. Society of Sisters, 268 U.S. 510 (1925), (Fourteenth Amendment fundamental right to be a parent to one’s child(ren); First Amendment fundamental right to direct the moral and religious upbringing and discipline of one’s child to prepare them for future duties and responsibilities); freedom of religion/religious beliefs and values

5.  Prince v. Massachusetts, 321 U.S. 158 (1944) right to privacy of families to be free from government intrusion, ” It is cardinal that the custody, care, and nurture of the child reside first with the parents.”

6.  Griswold v. Connecticut, 381 U.S. 479(1965)- Fourth and Fifth Amendments, rights to privacy, reaffirmed decisions in  Pierce v. Society of Sisters and Meyers v. Nebraska, fundamental right to parent one’s child

7.  Meyers v. Nebraska, 262 U.S. 390 (1923)Fourteenth Amendment implications, Parenting is a fundamental constitutional right among the “basic civil rights of man“; “The integrity of the family has found protection in the Due Process Clause of the Fourteenth Amendment.”

8.  Crawford v. Washington, 541 U.S. 36m 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) Sixth Amendment right via “Confrontation Clause,” or, the right to “confront” one’s accusers, child’s statements to a counselor inadmissible hearsay

9.  Walsh v. Erie County Department of Job and Family Services, 3:01-cv-7588 (N. District of Ohio, 2003)-social workers, like police officers and all “government officials,” are restricted to constitutional Fourth Amendment standards which do require a warrant issued on probability; no qualified or absolute “immunity”

10.   Gates v. Texas Department of Protective and Regulatory Services, 537 F. 3d, 404    (5th Cir., 2008); CPS and police officers warned they would not receive qualified “immunity” then next time they violated constitutional law in seizing children without (a) exigent circumstances, (b) warrant for removal based on probable cause and reliability, (c) without voluntary consent of parents,  and (d) without a court order for their “removal;” Fort Bend County, Texas; established that the law was now “clearly established” regarding Fourth Amendment protections against unreasonable child seizures, etc…

11.   Roska v. Peterson, 304 F. 3d, 982, 989 (10th Cir., 2002)- no “qualified immunity” for social workers under Fourteenth Amendment procedural due process of law violation when they removed child from mother’s home for alleged medical reasons after speaking with school nurse in Utah

12.  Doe v. Heck, 327, F. 3d 492 (7th Cir., 2003)Fourth  and Fourteenth Amendment Issues regarding unreasonable search and seizure of a child by CPS for investigative purposes

13.  Hernandez v. Foster, 657 F. 3d 463, 481-484, 486-487 (7th Cir., 2011)-
child protective services (“DCFS”) may not remove children without a court order that issued on probable cause and  on some exigency; may not hold children for forty-eight (48)hours when it is clear that there is no probable cause within that forty-eight hours

14. Schneckloth v. Bustamonte, 412 US 218 (1973) Regarding “Voluntary Consent” not forced and not threatened under duress, coercion, specifically regarding consent to warrantless entry, “The consent to search must be ‘voluntary, unequivocal, specific, intelligently given, and uncontaminated by duress or coercion.’”

15.  Quilloin v. Walcott, 434 US 246 (1978)- (Due Process of Law requires showing of parental unfitness before“state” break-ups of natural families over the objections of parents and their children; Fifth (5th) Amendment, Substantive Due Process of Law, Fourteenth Amendment, Procedural Due Process of Law and Equal Protections of the Law,best interests” standard alone without specific finding of parental unfitness cannot break-up the family)

16. Wilson v. Layne,  526 US 603, 615, 119 S. Ct., 1692 143 L. Ed. 2d 818 (1999) = Fourth Amendment warrant requirement absent exigent circumstances

17.  Good v. Dauphin County Department of Social Services 891 F. 2d 1087 1094 (3rd Cir., 1989) (Fourth Amendment upheld against social workers and police officers regarding warrantless entry)

18.  Hafer v. Melo, 502 US 21, 25-31 (1991) US Supreme Court ruled that a “state” official can be sued in a 42 U.S.C., Section 1983 (The Civil Rights Act of 1866, Civil Rights Act of 1964) case in individual capacity even when conduct in question related to official duties; “state” officials sued in their individual capacities are considered “persons”

19.  Beltran v. Santa Clara, D.C. No. CV-03-03767 (9th Cir., 2008)-social workers have no absolute “immunity” for their alleged  “investigatory” or “prosecutorial” conduct

20.  Scheuer v. Rhodes, 416 US 432 (1974)-no sovereign immunity” for “states” through Eleventh Amendment against Federal law that serves We the People,Sovereign, who would not have intentionally cloaked the government it sought to keep in check (“checks and balances”) in  blanket or absolute  “governmental immunity,” conflict arising from the Kent State University (Ohio) national guard attack on demonstrating students, Ohio governor sued under The Civil Rights Act of 1871 (codified as 42 U.S.C., Section 1983); four students killed, 1970, Vietnam War protest

21.  Morris v. Dearborne (5th Cir., 1999)-Procedural Due Process violated where plaintiffs proved use of fraudulent evidence into procedures used by the “state” when it denied them fundamentally fair procedures before having their child “removed, ” a right included in “Procedural Due Process”(Fourteenth Amendment); Texas schoolteacher manipulated and manufactured sexual abuse claims against parent through use of a newly developed “Facilitative Communicator” Device used with disabled students (See IDEA laws), teacher had received one day of training on the machine, not tested in double blind studies, unreliable, parent kept away from child for 2 or more years as a direct result  (Counseling and Psychological Testing Services was involved)

22.  J.B. v. Washington County (10th Cir., 1997)the forced separation of parent from child, even for a short time, represents a serious infringement on the rights of both; parent’s interest is of the “highest order

23.  Skinner v. Oklahoma, 316 US 535 (1942)-fundamental,basic civil rights of man” regarding marriage and procreation, fundamental to the existence and survival of the race ( inter alia, First Amendment right to freely associate)

24.  M.L.B. v. S.L.J., 519 US 102, 117 S. Ct. 555 (1996)- Fourteenth and First Amendment rights, associational rights, regarding choices about marriage, family life, and the upbringing of children “of basic importance in society,” rights “sheltered against the “state’s” unwarranted usurpation, disregard, or disrespect” (by the Fourteenth Amendment)

25.  Griffin v. Wisconsin, 483 US 868 (1987) US Supreme Court held that the courts may not use a different standard than probable cause for the issuance of warrant or entry order

26.  Parham v. J.R., 442 US 584, 602(1979)– “There is a presumption that fit parents act in their children’s best interests.‘”

27.  Wisconsin v. Yoder, 406 U.S. 205, 232 32  L. Ed. 2d 15, 92 S. Ct. 1526 (1972)- The US Supreme Court holding that parents have a fundamental right to make decisions concerning the “care, custody, and control of their children”; relationship between parent and child is constitutionally protected (well-established)

28.  Troxel v. Granville, 530 US 57 (2000)-as a fundamental right, parental liberty is to be protected by the highest standard of review: the compelling interest test, or, least restrictive test–proven unfit beyond clear and convincing evidence as opposed to preponderance of evidence or scintilla of evidence standards used in many “state” statutes, for example, Texas Family Code (which is not law, but rather, code that is unconstitutional, and therefore, is not in compliance with the Supreme law of the land)

29.  Brokaw v. Mercer County, 235 F.3d 1000 (7th Cir., 2001)– a Federal 1983 and 1985( 3)case for deprivation of constitutional and/or civil rights, and for  conspiracy against rights perpetrated under the color of law of authority in this case, for the “state” of Illinois;  in-laws of a mother who practiced a religion they did not accept conspired with DCFS, prosecutor, judge,  deputy sheriff (who was related to C.A., then age 5), to file false allegations of child neglect in order to cause parents to divorce; kidnapped child in the middle of the night, blindfolded, drove out into the middle of a field and converted child to his father’s family; Court ruled that police officers cannot escape liability by pointing to decisions of prosecutors or grand jurors or magistrates to confine or prosecute one; ruled violation of privacy and to be safe from unnecessary government intrusion, police officers were instrumental in plaintiff’s continued confinement or prosecution (See also Jones v. City of Chicago, 856 F.2d 985, 994 (7th Cir., 1988); judge denied 12 (b) (6) Motion to Dismiss for alleged “vagueness,” as accused by Defendants–“the who, the what, when, and why withstand dismissal under 12 (b) (6) (Federal Rules of Civil Procedure).

30.  White v. Pierce County, 797 F. 2d 812 (9th Cir., 1986)– it was established that it was well-settled constitutional law that, absent exigent circumstances, police could not enter a dwelling without a warrant even under statutory authority where probable cause existed–any reasonable officer would know this was the ruling

31.  Bray v. Alexandria Women’s Health Care Clinic, 113 S. Ct. 753 (1993)-the standard announced in “Griffin v. Breckenridgedoes not restrict the applicability of 42 U.S.C. Section 1985 (3)to “race” discrimination.  It is, therefore, reasonable to assume that 1985(3) may be used for “class-based” claims other than “race”

32.  Griffin v. Breckenridge, 403 US 88, 102 (1971)plaintiff alleges a class-based,” invidiously discriminatory animus beyond the conspirators’ action as the Court  records reflect that the actions were clearly a product of bias and prejudice of the Court

33.  Monell v. New York City Department of Social Services, 436 US 658 (1978)–  landmark US Supreme Court decision that clarified that city and “state” officials and/or agencies may be sued in their individual and/or official capacities and local governments can be sued under Title 42 U.S.C., Section 1983  (of the Civil Rights Act of 1871, Civil Rights Act of 1964) for constitutional and civil violations

34. Wallis v. Spencer, 202 F. 3d 1126 (9th Cir., 2000); court ruled that child had the right to have parent present for intrusive bodily examination, and reciprocal rights of parent to be there for comfort and support to child; of Fourteenth Amendment import regarding familial association

35.  United States v. Mendenhall, 446 U.S. 544, 554, (1980) a person has been “seized within the context of the Fourth Amendment if, in view of all the circumstances surrounding the incident, a reasonable “person” would not have believed that he or she was free to leave

36. Wooley v. City of Baton Rouge, 211 F. 3d913, 925 (5th Cir., 2000) – a child’s right to family integrity is concomitant to that of a parent–no “qualified” “immunity” against juvenile officers and social workers (SEE ALSO well-established fundamental First Amendment right to familial association)

37. Wooley v. Maynard, 430 U.S. 705 at 710 (1977); quoting Steffel v. Thompson, 415 U.S. 452 (1974) – without the ability pursue claim in federal court, one might find oneself in an “impossible condition” of being forced to choose between breaking the  (unconstitutional) “state” law and sacrificing fundamental right

38.  Lassiter v. Department of Social Services, 452 U.S. 18, 37 (1981)- “state” intervention to terminate the relationship between a parent and a child must meet the requisites of Due Process, including the right to a court-appointed attorney since the defendant was indigent

39.  Ginsberg v. New York, 390 U.S. 629 (1968)– upheld precedent set in Prince v. Massachusetts, 321 U.S. 158, 166 (1944)-fundamental right to the “custody, care, and nurture” of one’s child reside first in the parents, whose primary function and freedom include preparation for obligations the “state” can neither supply nor hinder (work and making money, basically, for, without “We the People,” there would be no government)

40.  Mabe v. San Bernardino County Dept. of Public Social Services, 237 F. 3d 1101, 1107 (9th Cir., 2001)– no “immunity” for social workers, facts to be put before and decided by a jury

41.  Jones v. City of Chicago, 856 F. 2d 482, 488 (7th Cir., 1988)– If police officers have been instrumental in the plaintiff’s continued confinement or prosecution, they cannot escape liability by pointing to the decisions of prosecutors or grand jurors or magistrates to confine or prosecute him (quoting Brokaw v. Mercer County, 235 F. 3d 1000 (7th Cir., 2001)

42.  Johnson v. Rodriguez, 226 F. 3d 1103 (10th Cir., 2000)- rejected alleged “D.R.E.”/”domestic relations exception as a bar to federal question “jurisdiction

43.  May v. Anderson, 345 U.S. 528, 533 (1953)– “The mere fact that a claimed violation of constitutional rights arises in a “domestic relations” context does not bar review of those constitutional issues” (See also, Rowell v. Oesterle, 626 F. 2d 437 (5th Cir., B Unit, 1980); (Boddie v. Connecticut, 401 U.S. 371, 91 S. Ct. 78, 28 L. Ed. 2d 113 (1971)); children are rights far more precious than property rights

44.  Palmore v. Sidoti, 466 U.S. 429, 430 (1984)- alleged “D.R.E.” presents no bar to federal question jurisdiction in non-diversity cases

45.  Nesses v. Shepherd, 68 F. 3d 1003 (7th Cir., 1995)– alleged “Rooker-Feldman” “abstention” reversed by the Federal, US Seventh (7th) Circuit Court of Appeals where police fabricated evidence that resulted in Plaintiffs’ convictions

46.  Tenenbaum v. Williams, 193 F. 3d 581 (2nd Cir., 1999)- Police officers and social workers may not conduct warrantless search or seizure in a suspected child abuse case absent exigent circumstances.  Defendants must have reason to believe that life or limb is in immediate jeopardy and that the intrusion is reasonably necessary to alleviate the threat.

47.  Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973)– alleged “Domestic Relations Exception” presents no bar as this case arises under federal question jurisdiction; Fourteenth Amendment rights to familial relationships and to privacy and bodily integrity and family integrity, right to make choices regarding family life, marriage, procreation, relationships, and, possibly or arguable, First Amendment fundamental right to freely associate and to express oneself through having a child (or not?)

48.  Stanley v. Illinois, 405 U.S. 645 (1972)– relationship between the parent and the child is constitutionally protected” (well-established)

49.  United States v. Bailey, 115 F. 3d 1222, 1231 (5th Cir., 1997); alleged Domestic Relations Exception (“D.R.E.”) presents no bar, federal question jurisdiction

50.  United States v. Johnson, 114 F. 3d 476, 481 (4th Cir., 1991); alleged D.R.E. presents no bar; case arises under federal question jurisdiction

51.  Roberts v. United States Jaycees, 468 U.S. 609, 619-24, 104 S. Ct. 3244, 82 L. Ed. 2d 462 (1984)– “The First Amendment protects those relationships, including family relationships, that presuppose deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs, but also distinctly personal aspects of one’s life.”

52.  Zablocki v. Redhail, 434 U.S. 374, 376 (1978); alleged “D.R.E.” presents no bar, case arises under federal question jurisdiction

53.  Young v. Biggers, 938 F. 2d 565 (5th Cir., 1991)- holding that dismissal on a 12 (b) motion to dismiss is inappropriate when reasonable persons should have known that framing someone for a crime they did not commit violates the Constitution (Federal Rules of Civil Procedure)

54.  Boddie v. Connecticut, 381 U.S. 479, 485-86 (1965)– no “domestic relations exception”/”D.R.E.” bar unless where no “diversity jurisdiction“; US Supreme Court decision that “states” must use the least restrictive standard for termination of parental rights

55.  Atwood v. Fort Peck Tribal Court Assinboine, 513 F. 3d 943, 947 (9th Cir., 2008); alleged “D.R.E.” presents no bar; case arises under federal question jurisdiction

56.  Baggett v. Bullitt, 377 U.S. 360, 379, 84 S. Ct. 1316, 1326, 12 L. Ed. 2d 377 (1964)– The Court recognized that there are certain constitutional and civil rights that are so important, that a court should not refuse to hear cases based on them, especially noting the First Amendment right to freedom of speech that a federal court should hear.

57.  Brokaw v. Mercer County, 305 F. 3d 660 (7th Cir., 2002)-The Seventh Circuit Court reversed the lower, trial court’s decision to “abstain” on the alleged basis of the “Rooker-Feldman Doctrine” in a 1983 and 1985 (3) case in which a three and six year-old siblings had been kidnapped in the middle of the night by paternal grandfather and aunt where grandfather was a sheriff and conspiracy was apparent along with discrimination based on mother’s religion; Mother was not trying to overturn a court’s determination in a child neglect proceeding; The Court held that the integrity of the decision could be attacked without attacking the actual proceedings or decision.

58.  Board of Directors v. Rotary Club, 481 U.S. 537, 545, 107 S. Ct. 1940, 95 L. Ed. 2d 474 (1987)-quoting Roberts v. United States Jaycees, 468 U.S. 609, 619-20, 104 S. Ct. 3244, 82 L. Ed. 2d 462 (1984); “The First Amendment protects those relationships, including family relationships, that presuppose deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs, but also distinctly personal aspects of one’s life.”

59.  Felder v. Casey, 487 U.S. 131 (1988)-Federal Pre-emption prevents a “state” court from applying a “state” law in federal civil rights cases brought in “state” court; on-point U.S. Supreme Court precedent holds that “state” law cannot provide “immunity” for federal, supreme court law, constitutional violations

60.  Florida v. Bostick, 501 U.S. 429 (1991)- Citizens do not forfeit their constitutional rights when they are coerced to comply with a request that they would prefer to refuse.”

61.  Devereaux v. Abbey, 263 F. 3d 1070 (9th Cir., 2001)- whether favorable to popular opinion or not, correctly applied, the law delineates that claims should be put before a jury

62.  Croft v. Westmoreland County Children & Youth Services, 103 F. 3d 1123 (3rd Cir., 1997)– held that a “state” has no interest in protecting children from their parents unless it has some reasonable and articulable evidence giving rise to a reasonable suspicion that a child has been abused or is in imminent danger of abuse for remaining with that parent

63.  Carson v. Elrod, 411 F. Supp. 645, 649: D.C. E.D. VA (1976)–  “No bond is more precious or should be more zealously protected by law as the bond between parent and child.”

64.  Darryl H. v. Coler, 801 F. 2d 1045 (7th Cir., 1986)- “The strictures of the Fourth Amendment apply to child welfare social workers as well as to other ‘governmental’ employees.”

65.  Lawrence v. Texas, 539 U.S. 558, 578-79 (2003), alleged “D.R.E.” presents no bar, federal question jurisdiction

66.  Marshall v. Barlow’s, Inc., 436 U.S. 307, 312 (1978)– Fourth Amendment unreasonable search and seizure laws apply to social workers and police officers

67.  Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 851 (1992)alleged “D.R.E.,” or “Domestic Relations Exception” Presents No Bar because this case arises under a federal question and has federal question jurisdiction

68.  Beltran v. Santa Clara County, 514 F. 3d 906, 908 (9th Cir., 2008)- no “immunity” for social workers, instead, they went to jail for lying

69.  Catz v. Chalker, 142 F. 3d 279, 292 (6th Cir., 1998)- overruled dismissal of Due Process claims because it did not implicate the merits of a divorce decree

70.  City of Canton v. Harris, 489 U.S. 378, 388 (1989)-fundamental liberty interest regarding familial association and integrity and privacy(absent government intrusion) implicit in the Fourteenth Amendment

71.  City of Houston v. Hill, 482 U.S. 451 (1987)– ” to “abstain and thus “force the plaintiff who has commenced a federal action to suffer the delay of “state” court proceedings might itself effect the impermissible “chilling” of the very constitutional rights he seeks to protect” (See also, J-R Distris., Inc. v. Eikenberry, 725 F. 2d 482, 488 (9th Cir., 1984), overruled on other grounds by (Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985); Garvin v. Rosenau, 455 F. 2d 233, 234 (6th Cir., 1972)(holding that “Further delay necessitated by “abstention” would be inconsistent with the policy of protecting the First Amendment against possible ‘chilling’ influences'”)

72Idaho v. Estrada (2004) regards pre-sentencing evaluations, including psychological evaluations, in criminal and quasi-criminal issues with specific regard to the Fifth Amendment constitutional right not to be made to testify against oneself by saying anything that might be used in a later case against oneself; also, implicates “ineffective assistance of counsel” if counsel did not inform of these Fifth Amendment rights; See also, Griffin v. California, 380 U.S. 609, 615 (1965); (when a criminal defendant exercises his privilege against self-incrimination, such silence may not be used as “evidence of guilt”); Lefowitz v. Turley, 414 U.S. 70, 77 (1973)(“The ‘sole concern’ of the Fifth Amendment’s right to silence is the ‘danger to a witness forced to give testimony leading to the infliction of ‘penalties affixed to the criminal acts…'”; Ullman v. United States, 350 U.S. 422, 438-39 7 (1956) (quoting Boyd v. United States, 116 U.S. 616, 634 (1886); Minnesota v. Murphy, 465 U.S. 420, 426 (1984)( quotes Lefowitz v. Turley).

75.  Strickland v. Washington, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693– U.S. Supreme Court set out the two elements necessary to a criminal/quasi-criminal defendant’s claim of ineffective assistance of counsel: (1) Defendant must show the counsel’s performance was deficient-errors so serious that counsel was not functioning as “counsel” guaranteed the defendant by the Sixth Amendment; (2)  The defendant must show that the deficient performance prejudiced the defense.  This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.; set the objective” standard for “reasonableness” for judging whether errors in an attorney’s performance are serious enough to render that performance defective;

73.  Marbury v. Madison, 5 U.S. 137 (1803)– “The Constitution of the United States is the supreme law of the land.  Any law that is repugnant to the Constitution is null and void of law.”

74. Boyd v. U.S, 116 U.S. 616– The court is to protect against any encroachment of Constitutionally secured liberties.”

75.  Byars v. U.S., 273 U.S. 28– Rights must be interpreted in favor of the citizen regarding unlawful searches and/or seizures.

76.  U.S. v. Bishop, 412 U.S. 346 (   )- “If one has relied on prior decisions of the Supreme Court, you have the perfect defense for  wilfulness,”…[ or the “defensiveness” defense that a judge who wants you and/or your case off of his or her docket, for whatever superficial reason.]

77.  Murdoch v. Penn, 310 US 105 ” No ‘state’ shall convert a liberty into a privilege, license it, and attach a fee to it.”

78.  Owen v. Independence, 100 S. Ct. 1398, 445 U.S. 622– “Officers of the court have no ‘immunity’ when violating a Constitutional right, from liability.  For, they are deemed to know the law.'”

79.  Miller v. U.S., 230 F. 2d 486, 489 (1956 ) “The claim and exercise of a Constitutional right cannot be converted into a crime.”

80.  Shuttlesworth v. Birmingham, 373 U.S. 262 (        )– ” If the ‘state’ converts a liberty into a privilege, the citizen can engage in the right with impunity.

81.  Brady v. U.S., 397 U.S. 742, 748 (     )-Waivers of Constitutional Rights not only must they be voluntary, but they must also be knowingly intelligent.”

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

83.  Norton v. Shelby County 118 U.S. 425 (    ) ” An unconstitutional act is not law; it confers no rights and duties; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed.”

84. Johnson v. Duffy, 588 F. 2d 740, 743-44 (9th Cir., 1978)- A person “subjects” another to the deprivation of a constitutional right, within the meaning of Section 1983, if he does an affirmative act, participates in another’s affirmative acts, or omits to perform an act which he is legally required to do that “causes” any citizen  to be subjected to a constitutional deprivation is also liable.  Setting in motion a series of acts by others which the actor knew or reasonably should have known would cause others to inflict the constitutional injury also qualifies.

85.  Larez v. City of Los Angeles, 946 F. 2d 630, 646 ( 9th Cir., 1991)– “A supervisor  is liable under Section 1983 if he sets in motion a series of acts by others or knowingly refused to terminate a series of acts by others, which he knew or reasonably should have known would cause others to inflict the constitutional injury.”

86. Arnold v. International Business Machines Corp., 637 F. 2d 1350 (9th Cir., 1981)– A ‘person’ ‘subjects’ another to the deprivation of a constitutional right, within the meaning of Section 1983, if he does an affirmative act, participates in another’s affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which a complaint is made.

87.  Slakan v. Porter, 737 F. 2d 368, 273 (4th Cir., 1984)Supervisory indifference” or tacit authorization of subordinates’ misconduct may be a causative [or proximate] factor in constitutional injuries they inflict.”

88.  U.S. v. Olmstead, 277 U.S. 438 (1928)-“Crime is contagious.  If the government becomes a law-breaker, it breeds contempt for the law.  It invites every man to become a law unto himself.  It invites anarchy” (former U.S. Supreme Court Justice Louis Brandeis).

89.  Nicholson v. Williams, Case No.: 00-cv-2229, Eastern District of New York-Judge Harvey Weinstein ruled that the practice of the Administration for Families and Children and social workers “removing” children for “domestic violence” for watching their mothers get beaten was unconstitutional and “ordered” it to be stopped;

Note:  See Related US Supreme Court decision in the follow-up to this case.

90.  H.R. v. State Department of Human Resources, 612 So. 2d 477 (Ala. Ct. App. 1992)– “It is not enough to have information that the children are in some form  of serious danger.  The evidence must also pass a test of reliability  that our justice system calls ‘probable cause.‘”

91. Goldberg v. Kelly, 397 U.S. 254 (1970)– Due Process, defined:  (a)  Timely Notice,  (b) Confront adversarial witness(es), (c) Oral arguments, (d) Oral presentation of evidence, (e) Cross-Examination of adverse party(ies), (f) Right to Assistance of Counsel, (g) Disclosure of Evidence, (h) Determination of Outcome of a Court of Record (so one doesn’t have to do it again), (i) Right of Finding Facts and Conclusions of Law (Right to have Reasoning  as to why the Judge did whatever was done); (j) Right to an Impartial Judge

92.  Vernonia School District 47JA v. Acton, 132 L. Ed. 2d 564, 115 S. Ct. 2386 (1995)- parental rights strengthened by US Supreme Court in this decision, reasoned that since children do not have many of the rights accorded citizens, and in lack thereof, parents and guardians possess and exercise those rights and authorities in the child’s best interest

93.  Carey v. Population Services International, 431 U.S. 678, 684-686 (1977)Due Process Clause of the 14th Amendment includes a “liberty interest” regarding the right of personal privacy or a guarantee of certain areas,or, “zones of privacy“; compelling interest test required when rights of parents to child-rearing and to  direct his/her child’s education are implicated; personal decisions related to marriage and family relationships protected from “unjustifiedgovernment interference

94.  Paris Adult Theater v. Slaton, 43 U.S. 49, 65 (1973)Court concluded that the right of parents to rear children are among rights “deemed fundamental.”; regarding Fourteenth Amendment and personal rights that can be deemed fundamental or implicit in the concept of ordered liberty…This privacy right encompasses and protects the personal intimacies of the home, family, marriage, motherhood, procreation, and child rearing…cf…Pierce v. Society of Sisters; Meyer v. Nebraska...nothing, however, in this Court’s decisions intimates that there is any fundamental privacy right implicit  in the concept of ordered liberty to watch obscene movies in places of public accommodation [emphasis supplied].

95.  Fisher ex. rel. Fisher v. Placer County, 2006 WL 2850375, at 6 (E.D. Cal. Oct. 5, 2006)- “Verbal Threats generally are not actionable in a federal civil rights proceeding.”

96.  Haines v. Kerner, 404 U.S. 519, 92 S. Ct., 594 30 L. Ed. 2d 652 (1972)-pro se Complainants’ pleadings held to less stringent standards than an attorney; opportunity to present evidence no matter how “inartful” the pro se complainant plead

97.  Martinez v. California, 444 U.S. 277, 284 n. 8 (1980)- “State conferred “immunity” cannot shield a state actor from liability under Section 1983; …a regime that allowed a “state” “immunity” defense to trump the imposition of liability under Section 1983 would emasculate the federal statute.”

98.  Perez v. Sugarman, 299 F. 2d 761, 764-65 (2nd Cir., 1974)“[C]onduct that is formally ‘private’ may become so entwined with governmental policies or so impregnated with a governmental character as to become subject to the constitutional limitations placed upon ‘state action’ if be performed by the Government but for the activities of the private parties (Perez v. Sugarman, 299 F. 2d 761, 764-65 (2nd Cir., 1974)(quoting Evans v. Newton, 382 U.S. 296, 299 (1966); Mora P. v. Rosemary McIntyre (Case No. 98-9595(2nd Cir., 1999)).

99.  Blessing v. Freestone, 520 U.S. 329, 340 (1997)“Section 1983 imposes liability on anyone who, under color of state law, deprives a person of any rights, privileges, or immunities secured by the Constitution and laws.” (See also, K &A Radiologic Tech. Servs., Inc. v. Commissioner of the Dep’t of Health, 189 F. 3d 273, 280 (2nd Cir., 1999).

100.  Hurlman v. Rice (2nd Cir., 1991)– “The mere possibility of danger does not constitute an emergency or exigent circumstance that would justify a forced warrantless entry and a warrantless seizure of a child.”

101.  Lenz v. Winburn (11th Cir., 1995)- “The Fourth Amendment protection against unreasonable searches and seizures extends beyond criminal investigations and includes conduct by social workers in the context of a child neglect/abuse investigation.”

102. Brokaw v. Mercer County (7th Cir., 2000)–  “Child’s four month separation from his parents could be challenged under substantive due process .  Sham procedures don’t constitute procedural due process.”

103. Bendiburg v. Dempsey (11th Cir., 1990)Post-deprivation remedies do not provide due process if pre-deprivation remedies are practicable.”

104.  Wallace v. Jaffree, 105 S. Ct. 2479; 472 US 38 (1985)-“The several ‘states’ have no greater power to restrain individual freedoms protected by the First Amendment than does the Congress of the United States.

105.  Elrod v. Burns, 96 S. Ct. 2673; 427 US 347 (1976)“Loss of First Amendment freedoms for even minimal periods of time, unquestionably constitutes irreparable injury.  Though First Amendment rights are not absolute, they may be curtailed only by interests of vital importance, the burden of proving which rests on their government.”

106.  Gross v. State of Illinois, 312 F. 2d 257 (1963)-“State Judges,” as well as federal, have the responsibility to respect and protect persons from violations of federal constitutional rights.”

107.  Matter of Gentry, 369 NW 2d. 889, MI App Div (1983) “A parent’s right to the custody of his or her children is an element of “liberty” guaranteed by the 5th Amendment and the 14th Amendment of the United States Constitution.”

108.  McNally v. U.S., 483 U.S. 350, 371072 (1987)(quoting U.S. v. Holzer 816 F. 2d 304, 307) “Fraud, in the elementary common law sense of deceit–and this is one of the meanings that fraud bears in the statute, see United States v. Dial, 757 F. 2d 163, 168 (7th Cir., 1985)–includes the deliberate concealment of material information in a setting of fiduciary obligation.  A public official is a fiduciary toward the public, including, in the case of a judge, the litigants who appear before him, and if he deliberately conceals material information from them he is guilty of fraud.”

109.  Dred Scott vs. Sanford, 60 U.S. (19 How.) 393 (CRUDEN vs. NEALE, 2 N.C. 338 2 S.E. 70)-“The ‘state’ citizen is immune from any and all government attacks and procedure, absent contract;” Every man is independent of all laws, except those prescribed by nature.  He is not bound by any institutions formed by his fellow men without his consent.”

110.  American Communications Association v. Douds, 339 U.S. 382, 442 (1950)-“It is not the function of our Government to keep the citizen from falling into error; it is the function of the citizen to keep the government from falling into error.”

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

112.  United States v. Burr, 309 U.S. 242- “When governments enter into the world of commerce, they are subject to the same burdens of any private firm or corporation”

113. Bivens v. Six Unknown Fed. Narcotics Agents 403 U.S. 388 (1971)-

114.  Davis v. Passman, 442 U.S. 228 (1979), the Supreme Court upheld a Fifth Circuit opinion that held that even though there existed “an explicit congressional prohibition against judicial remedies for those in petitioner’s position”, the court declined to infer that Congress also sought to foreclose an alternative remedy directly under the Fifth Amendment. In Carlson v. Green, 446 U.S. 14 (1980), the court held that a damages remedy would be available despite the absence of any statute conferring such a right, unless: (1) Congress had provided an alternative remedy which it “explicitly declared to be a substitute for recovery directly under the Constitution”; or (2) the defendant could demonstrate any “special factors counseling hesitation.” In Bush v. Lucas, 462 U.S. 367 (1983), the Court refrained from implying a Bivens remedy due to the availability of alternative remedies for the first time.[3] In FDIC v. Meyer, 510 U.S. 471 (1994), and Correctional Services Corporation v. Malesko, 534 U.S. 61 (2001), the court held that that the fundamental logic supporting Bivens was to deter constitutional violations by individual officers, not federal agencies.[4] In Wilkie v. Robbins, 551 U.S. 537 (2007), the court held that the difficulty inherent in “defining limits to legitimate zeal on the public’s behalf in situations where hard bargaining is to be expected” was a “special factor” that counseled against the availability of a Bivens remedy.In Minneci v. Pollard, 565 U.S. ___ (2011), the court denied a Bivens action for Eighth Amendment violations committed by employees of a private prison because “state tort law authorizes adequate alternative damages actions … that provide both significant deterrence and compensation”, despite acknowledging that these officials were “act[ing] under color of federal law”. Source: Wikipedia.com

115. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit 507 U.S. 163, 113 S. Ct. 1160, 122 L. Ed. 2d 517, 1993 U.S.194-   4th Amendment Constitutional rights against unlawful search warrants stemming from two different incidents; U.S. District Court for Northern District of Dallas dismissed complaint, U.S. Fifth Circuit Court of Appeals affirmed dismissal, U.S. Supreme Court considered on writ of certiorari to resolve split between appellate court districts and ruled that Rule 9(b) of the Federal Rules of Civil Procedure cannot require “heightened pleading standard” of higher specificity on a certain type of complaint; the court cannot interpose a higher level of specificity

Source:  Bloomberg Law at www.casebriefs.com/blog/law/civil-procedure

116. Smith v. Smith, 241 S.W.3d 904 (Tex. App.—Beaumont 2007, no pet.) (notice required where amended petition seeks more onerous judgment than earlier pleading)

117. In re R.R.,209 S.W. 3d 112 (Tex. 2006) (incarcerated mother entitled to set aside default where her actions did not show conscious indifference to termination proceeding);In re J.P.,196 S.W.3d 434(Tex. App.—Dallas 2006, no pet.)(termination by default warranted where letter without address for notice does not serve as answer and father waived notice in affidavit)

118. Arrington Oil & Gas v. Coalson, No. 2-07-268-CV, 2008 WL 706508 (Tex. App.—Fort Worth 2008,no pet.)(default judgment reversed where postal return receipt attached to service of citation in lieu of return)

 119.  In re Baby Girl G., No. 05-04-00219-CV, 2004 WL 2955513(Tex. App.—Dallas2004no pet.)(default affirmed where supplemental clerk’s record showed citation and return filed over 40 days before entry of termination decree); Hubicki v. Festina, 226 S.W. 3d 405 (Tex. 2007) (reversal of default warranted for failure to show that service by registered mail, return receipt requested at home owned by defendant in Mexico constitutes reasonably effective service
 

120.  Regenold v. Baby Fold, Inc., 369 NE 2d 858; 68 Ill 2d 419, appeal dismissed 98 S Ct 1598, 435 US 963, IL, (1977). Parent’s right to custody of child is a right encompassed within protection of this amendment which may not be interfered with under guise of protecting public interest by legislative action which is arbitrary or without reasonable relation to some purpose within competency of state to effect.

 

121.  Franks v. Smith, 717 F. 2d 183 (5th Cir. 1983), on pet. for rehearing– In this case a mother left her child with another couple in Mississippi before going to California to look for employment.  When she returned two or three years later to pick-up her child from the same couple (the Franks, “Appellants”) with CPS social workers and sheriff, they threatened the couple with kidnapping charges if they did not hand over the child; Fourth Amendment unlawful “search” or “seizure”and Fourteenth Amendment right to family relationship  and integrity and privacy challenged on appeal by the Franks after Mississippi district court dismissed for alleged “subject matter jurisdiction”  in what the Motion to Dismiss the court granted was referred to as a “custody” case, a “state” matter (citing alleged “domestic relations exception”); Affirmed in part, remanded in part by US Fifth Circuit Court of Appeals to decide Fourth Amendment unlawful “search’ or “seizure,” decided that the US District Court in Mississippi did have “subject matter jurisdiction” over the case; on Fourteenth Amendment issue, the 5th Circuit decided that the Franks did not have a cognizable liberty or property interest in the child since there was no legal, binding contractual agreement that entitled them to legal rights (although emotional ties were important, not dispositive); the Franks were “legal” “strangers”; Judge Jolly, Chief Judge Clark, and Judge Rubin See also Milam v. Milam, 376 So. 2d  1336, 1339  (Miss. 1979); Rodgers v. Rodgers, 274 So. 2d 671, 673 (Miss. 1973) (until child’s mother was legally proven to be unfit, found to have abandoned her child and forfeited legal rights, or lost legal rights to child based on her own conduct that did not serve the best interest of the child, the Franks had no legal right to claim the child as their own); The Franks likewise had no cognizable claim to Misty as a liberty interest under federal law. While deprivation of custody of a child or some other federally recognized interest may serve as a liberty interest[721 F.2d 155]or the basis for a fourteenth amendment suit, the relevant cases limit recovery to those who have interests stronger than those deriving from an informal social unit. E.g., Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965) (divorced father); Stanley v. Illinois, 405 U.S. 645,  92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); (unwed father); Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816,  97 S.Ct. 2094, 53 L.Ed.2d 14 (1977) (foster parents);n Smith the Supreme Court discussed at length the factors relevant to determining whether persons not biologically related to a child have an interest in maintaining their social unit. The plaintiffs in Smith were foster parents who had a contract with the State of New York giving them some legal status with respect to a child whom the state wanted to return to the biological parents.The Court considered biological relationship extremely important, though not dispositive, of the question whether unrelated parties have a legal interest in maintaining custody of a child. Id. at 843, 97 S.Ct. at 2109. The Court also considered emotional ties between the parties and the child to be extremely important, though not dispositive. Id. at 844, 97 S.Ct. at 2109. Finally, the Court noted that under the laws of New York, foster parents have only a limited expectation of continuity of their social unit, and decided that when the rights of the foster family and the rights of the biological family conflict, the interests deriving “from blood relationship, state-law sanction, and basic human right” necessarily override the foster family’s contractual and emotional relationship. Id. at 846-47, 97 S.Ct. at 2110-2111; petition for rehearing denied as remanded in part (US District Court would properly exercise subject matter jurisdiction regarding Fourth Amendment claims and/or damages) and affirmed in part (14th Amendment)

 
 122.  Thibodeaux v. Hilliard, 287 So. 2d 434 (Miss. 1973)- law presumed that the best interests of a child will be best served by preserving the biological family unit; cited to support rejection of Fourteenth Amendment claim of the Appellants (Franks) in Franks v. Smith, 717 F. 2d 183 (5th Cir. 1983).
 
123. Rowell v. Oesterle, 626 F. 2d 437, 438 (5th Cir. 1980)subject matter jurisdiction present in habeas action involving child custody
 
124.  Baskin v. Paker, 602 F. 2d 1205, 1208 (5th Cir. 1979) “It is quite settled that a section 1983 action for damages can lie against police officers acting in violation of an individual’s Fourth Amendment right if it is shown such violation occurred while the officers were acting under the color of state law.”
 
125.  Dawns v. Sawtelle, 574 F. 2d 610 (1st Circuit), cert denied, 439 U.S. 910, 99 S. Ct. 278, 58 L. Ed. 2d 256 (1978)-“ A section 1983 action can also lie against others, such as social workers where actions taken by them were taken in their official capacity as state employees.”
 
126.  Garner v. Giarrusso, 571 F. 2d 1330, 1339 (5th Cir. 1979)– “As to damages, compensation may be appropriate where embarrassment or mental distress result from deprivation of constitutional rights as is alleged here.” (supported subject matter jurisdiction in Franks v. Smith regarding their Fourth Amendment federal question);
 
127.  Mount Healthy City School District Board of Educators v. Doyle, 429 U.S. 274, 279, 97 S. Ct. 568, 572, 50 L. Ed. 2d 471 (1977)– “Unless it has been determined that an asserted constitutional violation has been forwarded solely for the purpose of obtaining federal jurisdiction or is wholly insubstantial and frivolous, or  unless it is determined that such an asserted violation is clearly immaterial to the case, then dismissal for lack of subject matter jurisdiction is inappropriate.”;
 
128.  Camara v. Municipal Court, 387 U.S. 523, 528, 87, S. Ct.  1727, 1730, 18 L. Ed.  2d 930 (1967)-“The Fourth Amendment prohibition against unreasonable searches protects against warrantless intrusions during civil as well as criminal investigations”; “basic purpose of the Fourth Amendment is to safeguard the privacy and security of individuals against arbitrary intrusions by government officials”; the private interests suffer
 
Batten v. Gomez, 324 F.3d 288, 295 (4th Cir.2003)-Procedural Due Process of Law Standard for chile “removals” (citing Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965);  Jordan by Jordan v. Jackson, 15 F.3d 333, 343 (4th Cir.1994))-“As a general rule ․ before parents may be deprived of the care, custody, or management of their children without their consent, due process-ordinarily a court proceeding resulting in an order permitting removal-must be accorded to them.”  Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir.1999);
 
“If the danger to the child is not so imminent that there is reasonably sufficient time to seek prior judicial authorization, ex-parte or otherwise, for the child’s removal, then the circumstances are not emergent.”   Id. The government must offer “objectively reasonable” evidence that harm is imminent.  Gottlieb v. County of Orange, 84 F.3d 511, 520 (2d Cir.1996);  Hurlman v. Rice, 927 F.2d 74, 81 (2d Cir.1991).
 
CONSTITUTIONAL RIGHTS:
 
 Boyd v. United, 116 U.S. 616 at 635 (1885)
Justice Bradley, “It may be that it is the obnoxious thing in its mildest form; but illegitimate and unconstitutional practices get their first footing in that way; namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of persons and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of the Courts to be watchful for the Constitutional Rights of the Citizens, and against any stealthy encroachments thereon. Their motto should be Obsta Principiis.
 
Downs v. Bidwell, 182 U.S. 244 (1901)
“It will be an evil day for American Liberty if the theory of a government outside supreme law finds lodgement in our constitutional jurisprudence. No higher duty rests upon this Court than to exert its full authority to prevent all violations of the principles of the Constitution.”
 
Gomillion v. Lightfoot, 364 U.S. 155 (1966), cited also in Smith v. Allwright, 321 U.S. 649.644
“Constitutional ‘rights’ would be of little value if they could be indirectly denied.”
 
Juliard v. Greeman, 110 U.S. 421 (1884)
Supreme Court Justice Field, “There is no such thing as a power of inherent sovereignty in the government of the United States… In this country, sovereignty resides in the people, and Congress can exercise power which they have not, by their Constitution, entrusted to it. All else is withheld.”
 
Mallowy v. Hogan, 378 U.S. 1
“All rights and safeguards contained in the first eight amendments to the federal Constitution are equally applicable.”
 
Miranda v. Arizona, 384 U.S. 426, 491; 86 S. Ct. 1603
“Where rights secured by the Constitution are involved, there can be no ‘rule making’ or legislation which would abrogate them.”
 
Norton v. Shelby County, 118 U.S. 425 p. 442
“An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed.”
 
Perez v. Brownell, 356 U.S. 44, 7; 8 S. Ct. 568, 2 L. Ed. 2d 603 (1958)
“…in our country the people are sovereign and the government cannot sever its relationship to them by taking away their citizenship.”
 
Sherar v. Cullen, 481 F. 2d 946 (1973)
“There can be no sanction or penalty imposed upon one because of his exercise of constitutional rights.”
 
Simmons v. United States, 390 U.S. 377 (1968)
“The claim and exercise of a Constitution right cannot be converted into a crime”… “a denial of them would be a denial of due process of law”.
 
Warnock v. Pecos County, Texas., 88 F3d 341 (5th Cir. 1996)
Eleventh Amendment does not protect state officials from claims for prospective relief when it is alleged that state officials acted in violation of federal law.
 
CORRUPTION OF AUTHORITY:
 
Burton v. United States, 202 U.S. 344, 26 S. Ct. 688 50 L.Ed 1057
United States Senator convicted of, among other things, bribery.
 
Butz v. Economou, 98 S. Ct. 2894 (1978); United States v. Lee, 106 U.S. at 220, 1 S. Ct. at 261 (1882)
“No man [or woman] in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government from the highest to the lowest, are creatures of the law, and are bound to obey it.”
 
Cannon v. Commission on Judicial Qualifications, (1975) 14 Cal. 3d 678, 694
Acts in excess of judicial authority constitutes misconduct, particularly where a judge deliberately disregards the requirements of fairness and due process.
 
*Geiler v. Commission on Judicial Qualifications, (1973) 10 Cal.3d 270, 286
Society’s commitment to institutional justice requires that judges be solicitous of the rights of persons who come before the court.
 
*Gonzalez v. Commission on Judicial Performance, (1983) 33 Cal. 3d 359, 371, 374
Acts in excess of judicial authority constitutes misconduct, particularly where a judge deliberately disregards the requirements of fairness and due process.
 
Olmstead v. United States, (1928) 277 U.S. 438
“Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”
 
Owen v. City of Independence (1980)
“The innocent individual who is harmed by an abuse of governmental authority is assured that he will be compensated for his injury.”
 
Perry v. United States, 204 U.S. 330, 358
“I do not understand the government to contend that it is any less bound by the obligation than a private individual would be…” “It is not the function of our government to keep the citizen from falling into error; it is the function of the citizen to keep the government from falling into error.”
 
*Ryan v. Commission on Judicial Performance, (1988) 45 Cal. 3d 518, 533
Before sending a person to jail for contempt or imposing a fine, judges are required to provide due process of law, including strict adherence to the procedural requirements contained in the Code of Civil Procedure. Ignorance of these procedures is not a mitigating but an aggravating factor.
 
U.S. v. Lee, 106 U.S. 196, 220 1 S. Ct. 240, 261, 27 L. Ed 171 (1882)
“No man in this country is so high that he is above the law. No officer of the law may set that law at defiance, with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law are bound to obey it.”  “It is the only supreme power in our system of government, and every man who, by accepting office participates in its functions, is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes on the exercise of the authority which it gives.”
 
Warnock v. Pecos County, Texas, 88 F3d 341 (5th Cir. 1996)
Eleventh Amendment does not protect state officials from claims for prospective relief when it is alleged that state officials acted in violation of federal law.
 
Strickland v. Washington, 466 U.S. 668, 692 (1984) (“Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice.”); Thus, a judge who denies a motion for substitution of attorneys solely on the basis of his courtroom observations, despite a defendant’s offer to relate specific instances of misconduct, abuses the exercise of his discretion to determine the competency of the attorney. A judicial decision made without giving a party an opportunity to present argument or evidence in support of his contention “is lacking in all the attributes of a judicial determination.” (Spector v. Superior Court (1961) 55 Cal.2d 839, 843 [13 Cal.Rptr. 189, 361 P.2d 909].) People v. Marsden , 2 Cal.3d 118 (1970)
 
DISMISSAL OF SUIT:
Note: [Copied verbiage; we are not lawyers.] It can be argued that to dismiss a civil rights action or other lawsuit in which a serious factual pattern or allegation of a cause of action has been made would itself be violating of procedural due process as it would deprive a pro se litigant of equal protection of the law vis a vis a party who is represented by counsel.
Also, see Federal Rules of Civil Procedure, Rule 60 – Relief from Judgment or Order (a) Clerical Mistakes and (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc.
 
Warnock v. Pecos County, Texas, 88 F3d 341 (5th Cir. 1996)
Eleventh Amendment does not protect state officials from claims for prospective relief when it is alleged that state officials acted in violation of federal law.
 
Walter Process Equipment v. Food Machinery, 382 U.S. 172 (1965)
… in a “motion to dismiss, the material allegations of the complaint are taken as admitted”. From this vantage point, courts are reluctant to dismiss complaints unless it appears the plaintiff can prove no set of facts in support of his claim which would entitle him to relief (see Conley v. Gibson, 355 U.S. 41 (1957)).
 
EQUAL PROTECTION UNDER THE LAW
 
Cochran v. Kansas, 316 U.S. 255, 257-258 (1942)
“However inept Cochran’s choice of words, he has set out allegations supported by affidavits, and nowhere denied, that Kansas refused him privileges of appeal which it afforded to others. *** The State properly concedes that if the alleged facts pertaining to the suppression of Cochran’s appeal were disclosed as being true, … there would be no question but that there was a violation of the equal protection clause of the Fourteenth Amendment.”
 
Duncan v. Missouri, 152 U.S. 377, 382 (1894)
Due process of law and the equal protection of the laws are secured if the laws operate on all alike, and do not subject the individual to an arbitrary exercise of the powers of government.”
 
Giozza v. Tiernan, 148 U.S. 657, 662 (1893), Citations Omitted
“Undoubtedly it (the Fourteenth Amendment) forbids any arbitrary deprivation of life, liberty or property, and secures equal protection to all under like circumstances in the enjoyment of their rights… It is enough that there is no discrimination in favor of one as against another of the same class. …And due process of law within the meaning of the [Fifth and Fourteenth] amendment is secured if the laws operate on all alike, and do not subject the individual to an arbitrary exercise of the powers of government.”
 
Kentucky Railroad Tax Cases, 115 U.S. 321, 337 (1885)
“The rule of equality… requires the same means and methods to be applied impartially to all the constituents of each class, so that the law shall operate equally and uniformly upon all persons in similar circumstances”.
 
Truax v. Corrigan, 257 U.S. 312, 332
“Our whole system of law is predicated on the general fundamental principle of equality of application of the law. ‘All men are equal before the law,’ “This is a government of laws and not of men,’ ‘No man is above the law,’ are all maxims showing the spirit in which legislatures, executives, and courts are expected to make, execute and apply laws. But the framers and adopters of the (Fourteenth) Amendment were not content to depend… upon the spirit of equality which might not be insisted on by local public opinion. They therefore embodied that spirit in a specific guaranty.”
 
HABEAS CORPUS:
 
Duncan v. Bradley, No. 01-55290 (9th Circ., 12-24-02)
A state trial court’s refusal to instruct the jury on an entrapment defense, in a second trial on drug sale charges, amounted to prejudicial constitutional error where evidence presented at a first trial warranted such an instruct. To read entire text of the opinion, see http://caselaw.lp.findlaw.com/data2/circs/9th/0155290p.pdf
 
“JUDICIAL IMMUNITY”:
 
See also, 42 USC 1983 – Availability of Equitable Relief Against Judges.
Note: [Copied verbiage; we are not lawyers.] Judges have given themselves judicial immunity for their judicial functions. Judges have no judicial immunity for criminal acts, aiding, assisting, or conniving with others who perform a criminal act or for their administrative/ministerial duties, or for violating a citizen’s constitutional rights. When a judge has a duty to act, he does not have discretion – he is then not performing a judicial act; he is performing a ministerial act. Nowhere was the judiciary given immunity, particularly nowhere in Article III; under our Constitution, if judges were to have immunity, it could only possibly be granted by amendment (and even less possibly by legislative act), as Art. I, Sections 9 & 10, respectively, in fact expressly prohibit such, stating, “No Title of Nobility shall be granted by the United States” and “No state shall… grant any Title of Nobility.” Most of us are certain that Congress itself doesn’t understand the inherent lack of immunity for judges.
Article III, Sec. 1, “The Judicial Power of the United States shall be vested in one supreme court, and in such inferior courts, shall hold their offices during good behavior.”
 
Tort & Insurance Law Journal, Spring 1986 21 n3, p 509-516, “Federal tort law: judges cannot invoke judicial immunity for acts that violate litigants’ civil rights.” – Robert Craig Waters.
 
Ableman v. Booth, 21 Howard 506 (1859)
“No judicial process, whatever form it may assume, can have any lawful authority outside of the limits of the jurisdiction of the court or judge by whom it is issued; and an attempt to enforce it beyond these boundaries is nothing less than lawless violence.”
 
Chandler v. Judicial Council of the 10th Circuit, 398 U.S. 74, 90 S. Ct. 1648, 26 L. Ed. 2d 100
Justice Douglas, in his dissenting opinion at page 140 said, “If (federal judges) break the law, they can be prosecuted.” Justice Black, in his dissenting opinion at page 141) said, “Judges, like other people, can be tried, convicted and punished for crimes… The judicial power shall extend to all cases, in law and equity, arising under this Constitution“.
 
 Cooper v. Aaron, 358 U.S. 1, 78 S. Ct. 1401 (1958)
Note: Any judge who does not comply with his oath to the Constitution of the United States wars against that Constitution and engages in acts in violation of the supreme law of the land. The judge is engaged in acts of treason.
The U.S. Supreme Court has stated that “no state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it”. See also In Re Sawyer, 124 U.S. 200 (188); U.S. v. Will, 449 U.S. 200, 216, 101 S. Ct. 471, 66 L. Ed. 2d 392, 406 (1980); Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 404, 5 L. Ed 257 (1821).
 
Cooper v. O’Conner, 99 F.2d 133
There is a general rule that a ministerial officer who acts wrongfully, although in good faith, is nevertheless liable in a civil action and cannot claim the immunity of the sovereign.
 
Davis v. Burris, 51 Ariz. 220, 75 P.2d 689 (1938)
A judge must be acting within his jurisdiction as to subject matter and person, to be entitled to immunity from civil action for his acts.
 
Forrester v. White, 484 U.S. at 227-229, 108 S. Ct. at 544-545 (1987); Westfall v.Erwin, 108 S. Ct. 580 (1987); United States v. Lanier (March 1997)
Constitutionally and in fact of law and judicial rulings, state-federal “magistrates-judges” or any government actors, state or federal, may now be held liable, if they violate any Citizen’s Constitutional rights, privileges, or immunities, or guarantees; including statutory civil rights.  A judge is not immune for tortious acts committed in a purely Administrative, non-judicial capacity.
 
Gregory v. Thompson, F.2d 59 (C.A. Ariz. 1974)
Generally, judges are immune from suit for judicial acts within or in excess of their jurisdiction even if those acts have been done maliciously or corruptly; the only exception being for acts done in the clear absence of all jurisdiction.
 
 “Our conclusion that a defendant is entitled to invoke the privilege against self-incrimination with respect to a court-ordered mental health assessment for use at sentencing is consistent with a comment by our Suprem Court, albeit in dicta, in State v. Wood,132 Idaho 88, 100,
967 P.2d 702, 714 (1998). The Court there noted that if an evaluator had been appointed to prepare a psychological report for purposes of sentencing, counsel for the defendant “would have had the opportunity to advise his client of the possible uses of the information and of the privilege against self-incrimination.”
 
Additionally, in State v. Odiaga, 125 Idaho 384, 391, 871 P.2d 801, 808 (1994), the Idaho Supreme Court also implied, without directly holding, that in the absence of an insanity defense, an order granting a prosecution motion to compel a pretrial psychological evaluation would be violative of the Fifth Amendment. The few decisions that we have found from other jurisdictions addressing the issue have held that the privilege against self-incrimination entitles a defendant to refuse participation in a pre-sentence psychosexual or mental health evaluation. See State v. Diaz-Cardona, 123 Wash.App. 477, 98 P.3d 136, 138 (2004); Dzul v. State, 118 Nev. 681, 56 P.3d 875, 877-78 (2002); and Commonwealth v. M.G., 75 S.W.3d 714, 724 (Ky.Ct.App.2002).
 
Hoffsomer v. Hayes, 92 Okla 32, 227 F. 417
“The courts are not bound by an officer’s interpretation of the law under which he presumes to act.”
 
Marbury v. Madison, 5 U.S. (2 Cranch) 137, 180 (1803)
 
“… the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.”
“In declaring what shall be the supreme law of the land, the Constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank”.  “All law (rules and practices) which are repugnant to the Constitution are VOID”.Since the 14th Amendment to the Constitution states “NO State (Jurisdiction) shall make or enforce any” law which shall abridge the rights, privileges, or immunities of citizens of the United States nor deprive any citizens of life, liberty, or property, without due process of law, … or equal protection under the law”, this renders judicial immunity unconstitutional.
 
Piper v. Pearson, 2 Gray 120, cited in Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872)
“Where there is no jurisdiction, there can be no discretion, for discretion is incident to jurisdiction.”
 
Pulliam v. Allen, 466 U.S. 522 (1984); 104 S. Ct. 1781, 1980, 1981, and 1985 unity doesn’t exist; citizens can sue judges for prospective injunctive relief. “Our own experience is fully consistent with the common law’s rejection of a rule of judicial immunity. We never have had a rule of absolute judicial immunity. At least seven circuits have indicated affirmatively that there is no immunity… to prevent irreparable injury to a citizen’s constitutional rights…””Subsequent interpretations of the Civil Rights Act by this Court acknowledge Congress’ intent to reach unconstitutional actions by all state and federal actors, including judges… The Fourteenth Amendment prohibits a state [federal] from denying any person [citizen] within its jurisdiction the equal protection under the laws. Since a State [or federal] acts only by its legislative, executive or judicial authorities, the constitutional provisions must be addressed to those authorities, including state and federal judges…”
“We conclude that judicial immunity is not a bar to relief against a judicial officer acting in her [his] judicial capacity.”
 
Mireles v. Waco, 112 S. Ct. 286 at 288 (1991)
A judge is not immune for tortious acts committed in a purely Administrative, non-judicial capacity; however, even in a case involving a particular attorney not assigned to him, he may reach out into the hallway, having his deputy use “excessive force” to haul the attorney into the courtroom for chastisement or even incarceration. A Superior Court Judge is broadly vested with “general jurisdiction.” Provided the judge is not divested of all jurisdiction, he may have his actions excused as per this poor finding.
 
Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 1687 (1974)
Note: By law, a judge is a state officer. The judge then acts not as a judge, but as a private individual (in his person). When a judge acts as a trespasser of the law, when a judge does not follow the law, the Judge loses subject-matter jurisdiction and the judges’ orders are not voidable, but VOID, and of no legal force or effect.  The U.S. Supreme Court stated that “when a state officer acts under a state law in a manner violative of the Federal Constitution, he comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States.”
 
Stump v. Sparkman, id., 435 U.S. 349
Some Defendants urge that any act “of a judicial nature” entitles the Judge to absolute judicial immunity. But in a jurisdictional vacuum (that is, absence of all jurisdiction) the second prong necessary to absolute judicial immunity is missing.  A judge is not immune for tortious acts committed in a purely Administrative, non-judicial capacity.
 
Rankin v. Howard, 633 F.2d 844 (1980)
The Ninth Circuit Court of Appeals reversed an Arizona District Court dismissal based upon absolute judicial immunity, finding that both necessary immunity prongs were absent; later, in Ashelman v. Pope, 793 F.2d 1072 (1986), the Ninth Circuit, en banc, criticized the “judicial nature” analysis it had published in Rankin as unnecessarily restrictive. But Rankin’s ultimate result was not changed, because Judge Howard had been independently divested of absolute judicial immunity by his complete lack of jurisdiction.
 
U.S. Fidelity & Guaranty Co. (State use of), 217 Miss. 576, 64 So. 2d 697)
When a judicial officer acts entirely without jurisdiction or without compliance with jurisdiction requisites he may be held civilly liable for abuse of process even though his act involved a decision made in good faith, that he had jurisdiction.
 
U.S. v. Lee, 106 U.S. 196, 220 1 S. Ct. 240, 261, 27 L. Ed 171 (1882)
“No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it.””It is the only supreme power in our system of government, and every man who, by accepting office participates in its functions, is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes on the exercise of the authority which it gives.”
 
JURISDICTION:
 
Zeller v. Rankin, 101 S.Ct. 2020, 451 U.S. 939, 68 L.Ed 2d 326
When a judge knows that he lacks jurisdiction, or acts in the face of clearly valid statutes expressly depriving him of jurisdiction, judicial immunity is lost.
 
NOTE:
 
 It is a fact of law that the person asserting jurisdiction must, when challenged, prove that jurisdiction exists; mere good faith assertions of power and authority (jurisdiction) have been abolished.
Albrecht v. U.S.
 
Balzac v. People of Puerto Rico, 258 U.S. 298 (1922)
“The United States District Court is not a true United States Court, established under Article 3 of the Constitution to administer the judicial power of the United States therein conveyed. It is created by virtue of the sovereign congressional faculty, granted under Article 4, 3, of that instrument, of making all needful rules and regulations respecting the territory belonging to the United States. The resemblance of its jurisdiction to that of true United States courts, in offering an opportunity to nonresidents of resorting to a tribunal not subject to local influence, does not change its character as a mere territorial court.”
 
Basso v. UPL, 495 F. 2d 906
 
Brook v. Yawkey, 200 F. 2d 633
 
Elliot v. Piersol, 1 Pet. 328, 340, 26 U.S. 328, 340 (1828)
Under federal Law, which is applicable to all states, the U.S. Supreme Court stated that “if a court is without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void, and form no bar to a recovery sought, even prior to a reversal in opposition to them. They constitute no justification and all persons concerned in executing such judgments or sentences are considered, in law, as trespassers.”
 
Griffin v. Mathews, 310 Supp. 341, 423 F. 2d 272
 
Hagans v. Lavine, 415 U.S. 528
 
Howlett v. Rose, 496 U.S. 356 (1990)
Federal Law and Supreme Court Cases apply to State Court Cases.
 
Louisville & N.R. Co. v. Mottley, 211 U.S. 149
 
Mack v. United States, 07-27-97, Justice Antonin Scalia
“The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”
 
Mack v. United States, 07-27-97, Justice Antonin Scalia
“Residual state sovereignty was also implicit, of course, in the Constitution’s conferral upon Congress of not all governmental powers, but only discrete and enumerated ones.”
 
Maine v. Thiboutot, 448 U.S. 1- jurisdiction, once challenged, must be decided
 
Mookini v. U.S., 303 U.S. 201 (1938)
“The term ‘District Courts of the United States’ as used in the rules without an addition expressing a wider connotation, has its historic significance. It describes the constitutional courts created under Article III of the Constitution. Courts of the Territories are Legislative Courts, properly speaking, and are not district courts of the United States. We have often held that vesting a territorial court with jurisdiction similar to that vested in the district courts of the United States (98 U.S. 145) does not make it a ‘District Court of the United States’.
“Not only did the promulgating order use the term District Courts of the United States in its historic and proper sense, but the omission of provision for the application of the rules the territorial court and other courts mentioned in the authorizing act clearly shows the limitation that was intended.”
 
McNutt v. General Motors, 298 U.S. 178
 
New York v. United States, 505 U.S. 144 (1992)
“We have held, however, that state legislatures are not subject to federal direction.”
 
Owens v. The City of Independence, 445 U.S. 622, 100 S. Ct. 1398 (1980)
 
Thomson v. Gaskill, 315 U.S. 442
 
JUSTICE DEPARTMENT:
 
United States v. Chadwick, 433 U.S. I at 16 (1976)
“It is deeply distressing that the Department of Justice, whose mission is to protect the constitutional liberties of the people of the United States, should even appear to be seeking to subvert them by extreme and dubious legal argument.”
 
PEACEFUL ASSEMBLY (DEMONSTRATIONS):
 
Elrod v. Burns, 427 U.S. 347; 6 S. Ct. 2673; 49 L. Ed. 2d (1976)
“Loss of First Amendment Freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”
 
Miller v. U.S., 230 F. 2d. 486, 490; 42
“There can be no sanction or penalty imposed upon one, because of his exercise of constitutional rights.”
 
Murdock v. Commonwealth of  Pennsylvania, 319 U.S. 105
“No state shall convert a liberty into a license, and charge a fee therefore.”
 
Shuttlesworth v. City of Birmingham, Alabama, 373 U.S. 262
“If the State converts a right (liberty) into a privilege, the citizen can ignore the license and fee and engage in the right (liberty) with impunity.”
United States Constitution, First Amendment
Right to Petition; Freedom of Association.
 
 PROBABLE CAUSE:
 
Brinegar v. U.S., 388 US 160 (1949)-
Probable Cause to Arrest – Provides details on how to determine if a crime has been or is being committed.
 
 Carroll v. U.S., 267 US 132 (1925)-
Probable Cause to Search – Provides details on the belief that seizable property exists in a particular place or on a particular person.
 
Draper v. U.S. (1959)-
Probable cause is where known facts and circumstances, of a reasonably trustworthy nature, are sufficient to justify a man of reasonable caution in the belief that a crime has been or is being committed. Reasonable man definition; common textbook definition; comes from this case.
 
PRO SE RIGHTS: or, Sui Juris, In Propria Persona
Brotherhood of Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1; v. Wainwright, 372 U.S. 335;
 
Argersinger v. Hamlin, Sheriff 407 U.S. 425
Litigants can be assisted by unlicensed laymen during judicial proceedings.
 
Conley v. Gibson, 355 U.S. 41 at 48 (1957)
“Following the simple guide of rule 8(f) that all pleadings shall be so construed as to do substantial justice”… “The federal rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.” The court also cited Rule 8(f) FRCP, which holds that all pleadings shall be construed to do substantial justice.
 
Davis v. Weschler, 263 U.S. 22, 24(1922); Stromberb v. California, 283 U.S. 359; NAACP v. Alabama, 375 U.S. 449
“The assertion of federal rights, when plainly and reasonably made, are not to be defeated under the name of local practice.”
 
Elmore v. McCammon (1986) 640 F. Supp. 905
“… the right to file a lawsuit pro se is one of the most important rights under the constitution and laws.”
Federal Rules of Civil Procedures, Rule 17, 28 USCA “Next Friend”
A next friend is a person who represents someone who is unable to tend to his or her own interest.
 
Haines v. Kerner, 404 U.S. 519 (1972)
“Allegations such as those asserted by petitioner, however inartfully pleaded, are sufficient”… “which we hold to less stringent standards than formal pleadings drafted by lawyers.”
 
Jenkins v. McKeithen, 395 U.S. 411, 421 (1959); Picking v. Pennsylvania R. Co., 151 Fed 2nd 240; Pucket v. Cox, 456 2nd 233
Pro se pleadings are to be considered without regard to technicality; pro se litigants’ pleadings are not to be held to the same high standards of perfection as lawyers.
 
 Maty v. Grasselli Chemical Co., 303 U.S. 197 (1938)
“Pleadings are intended to serve as a means of arriving at fair and just settlements of controversies between litigants. They should not raise barriers which prevent the achievement of that end. Proper pleading is important, but its importance consists in its effectiveness as a means to accomplish the end of a just judgment.”
NAACP v. Button, 371 U.S. 415); United Mineworkers of America v. Gibbs, 383 U.S. 715; and Johnson v. Avery, 89 S. Ct. 747 (1969)
Members of groups who are competent non–lawyers can assist other members of the group achieve the goals of the group in court without being charged with “unauthorized practice of law.”
 
Picking v. Pennsylvania Railway, 151 F.2d. 240, Third Circuit Court of Appeals
The plaintiff’s civil rights pleading was 150 pages and described by a federal judge as “inept”. Nevertheless, it was held “Where a plaintiff pleads pro se in a suit for protection of civil rights, the Court should endeavor to construe Plaintiff’s Pleadings without regard to technicalities.”
Puckett v. Cox, 456 F. 2d 233 (1972) (6th Cir. USCA)
It was held that a pro se complaint requires a less stringent reading than one drafted by a lawyer per Justice Black in Conley v. Gibson (see case listed above, Pro Se Rights Section).
 

“In the instant case, the possession of the liquor was the body of the offense; that fact was proven by a forcible and unlawful search of the defendant’s person to secure the veritable key to the offense. It is fundamental that a citizen may not be arrested and have his person searched by force and without process in order to secure testimony against him. . . . It is better that the guilty shall escape, rather than another offense shall be committed in the proof of guilt.”

Town of Blacksburg v. Beam, 104 S.C. 146, 148, 88 S.E. 441.

Roadway Express v. Pipe, 447 U.S. 752 at 757 (1982)
“Due to sloth, inattention or desire to seize tactical advantage, lawyers have long engaged in dilatory practices… the glacial pace of much litigation breeds frustration with the Federal Courts and ultimately, disrespect for the law.”
 
Sherar v. Cullen, 481 F. 2d 946 (1973)
“There can be no sanction or penalty imposed upon one because of his exercise of Constitutional Rights.”
 
Schware v. Board of Examiners, United State Reports 353 U.S. pages 238, 239.
“The practice of law cannot be licensed by any state/State.”
 
Sims v. Aherns, 271 SW 720 (1925)
“The practice of law is an occupation of common right.”
http://www.lawmenamerica.com
 

VI.     “QUALIFIED IMMUNITY”

“Qualified” “Immunity” Defenses that May be Alleged or Claimed by Oppressors Who May or May not have Violated Yours and Your Family’s Constitutional, Civil, ” InalienableandUnalienable” rights, and/or your well-established  right to privacy–to be free from government intrusion unless there is probable cause that one has committed a crime and a valid warrant has not issued based on perjured testimony, intentional misrepresentations, omissions, facts, fabrications, embellishments, falsely sworn affidavits,  and/or other demonstrative evidence of  that said Oppressor acted deliberately in bad faith, and with ill-will.

which is an affirmative defense that must be individually and meticulously pleaded with specificity by any and all defendants alleging entitlement to the doctrine

A bill of attainder is defined to be “a legislative act which inflicts punishment without a judicial
trial,” where the legislative body exercises the office of judge, and assumes judicial magistracy, and
pronounces on the guilt of a party without any of the forms or safeguards of a trial, and fixes the punishment (Cummings v. Missouri, 4 Wall.[71U.S.]323).   But, the constitution contains article1,§0 a provision, that “no bill of attainder or ex post facto law shall be passed,” and a provision (article 1, § 10) that no state shall pass any bill of attainder or ex post facto law.  Assuming that a treaty must be regarded as a law, within the inhibition, is this treaty, in the particular in question, an ex post facto law or a bill of attainder?
 
 1. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) “’Qualified’ ‘Immunity,’ also known as “good faithimmunitybalances two important interests—(a)the need to hold public officials accountable when they exercise power irresponsibly, and (b) the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.”;

2.  Pearson v. Callahan, 555 U.S. 223, 231 (2009)– The doctrine focuses on “the objective reasonableness” of an official’s conduct, as measured by reference to clearly established law” to “avoid excessive disruption of government and permit the resolution of man…

 3. Saucier v. Katz, 533 U.S. 194 (2001)-

4. Anderson v. Creighton, 483 U.S. 635 (1987)-

5.  Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)–  Qualified immunity is “immunity” from suit, not from mere liability.”

6. Malley v. Briggs, 475 U.S. 335 (1986)-police officer not entitled absolute immunity for  a claim that he caused plaintiff to be unlawfully arrested by presenting the judge with affidavit that failed to establish probable cause

VII.     “JURISDICTION,” GENERALLY

1.  Subject-Matter Jurisdiction-

2.  Jurisdiction Over Parties-

3.  “Procedural” Jurisdiction–the “new” one not necessarily constitutional, lawful, fair, or appropriate, but, nevertheless, is practiced by some courts

 III.    MOTIONS FOR DISMISSAL PURSUANT TO 12 (B) (1) AND 12 (B) (6) (FEDERAL RULES OF CIVIL PROCEDURE)

1.  Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1965, 167 L. Ed. 2d 929 (2007)- “Dismissal is appropriate only if the factual allegations are not enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).”

2.  Federal Rules of Civil Procedure 8 (a) (2)– “Specific facts are not necessary; the factual allegations need only give the defendant ‘fair notice…of what the claim is and the grounds upon which it rests” (Erickson v. Pardus, 551 U.S. 89, 93____________, 2200, 167 L. Ed. 2d 1081 (2007) (per curiam) (quoting Twombly, 550 U.S. at 555, 127 S. Ct. at 1964).

3.  Papasan v. Allain, __________286, 106 S. Ct. 2932, 92 L. Ed.2d 209 (1986)– “a plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do” (quoted in Twombly 550 U.S. at 555, 127 S. Ct. at 1964-1965(2007).

4. Ashcroft v. Iqbal, 556 U.S. 662, ________, 1949, 173 L. Ed. 2d 868(2009) (quoting Twombly, 550 U.S. at 570, 127 S. Ct. at 1974)-“to survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.”; “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged” (Iqbal 556 U.S. at 678, 129 S. Ct. at 1950) (quoting Fed. R. of Civ. P. 8 (a) (2)).

5.  Scheuer v. Rhodes, ________________236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974); (Jones v. Greninger, _____________, 324 (5th Cir. 1999) (quoted in Twombly, 550 U.S. at 563, 127 S. Ct. at 1969, n. 8)– “When considering a motion to dismiss under 12 (b) (6), the Court’s task is limited to deciding whether the plaintiff is entitled  to offer evidence in support of his or her claims, not whether the plaintiff will eventually prevail” (Federal Rules of Civil Procedure).

6.  Oppenheimer v. Prudential Sec., Inc., ________________, 194 (5th Cir. 1996)(citing Mitchell v. McBryde, 230 (5th Cir. 1999)-” The plaintiff’s complaint is to be construed in the light most favorable to the plaintiff, and the allegations contained therein are to be taken as true.”

7. Federal Rules of Civil Procedure 12 (b) (1)– “permits the dismissal of an action  for the lack of subject matter jurisdiction”

8. Federal Rules of Civil Procedure 12 (h) (3)-“If a federal court decides at any time that it lacks subject matter jurisdiction, it must dismiss the action” (Berkshire Fashions, Inc. v. M.V. Hakusan II_____________, 880 n. 3 (3rd Cir. 1992) (citing Rubin v. Buckman, _____________, 72 (3rd Cir. 1984)(reasoning that the distinction between a 12 (b) (1) and 12 (h) (3) motion to dismiss is simply that the latter may be asserted at any time and need not be responsive to any pleading of the other party.”

9.  Stockman v. Federal Election Comm’n, 138 F. 3d 144, 151 (5th Cir. 1998) (citing Veldhoen v. United States Coast Guard,  _________________, 225 (5th Cir. 1994)- “Since federal courts are considered courts of limited jurisdiction, absent jurisdiction conferred by statute, they lack the power to adjudicate claims.”

10.  Vantage Trailers, Inc. V. Beall Corp., ______________________, 748 (5th Cir. 2009) (citing New Orleans v. Gulf Coast  Ry. Co. v. Barrios, _________________, 327 (5th Cir. 2008); (See also Stockman, 138 F. 3d 1t 151).

11.  MD Physicians & Assoc., Inc. v. State Board of Ins.____________, 181(5th Cir. 1992) (citing Williamson v. Tucker, ________________, 413 (5th Cir. 1981)-“When evaluating jurisdiction, a federal court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.”

12.  Conley v. Gibson, 355 U.S. 41 (1957)- a case decided by the US Supreme Court reversed a decision because it erred in dismissing  a complaint for want of jurisdiction; Federal Rules of Civil Procedure do not require a (federal) claimant to set out in detail the facts upon which he bases his claims.”

IX.     SUMMARY JUDGMENT

1.  Anderson v. Liberty Lobby, Inc., 477 U.S. 42 (1986)-if there exist material factual dispute(s) about a case that would affect the outcome, then summary judgment is precluded

XI.     “Absolute Judicial Immunity”

1.  Pierson v. Ray, 386 U.S. 547 (1967)– The US Supreme Court extended the protection of absolute judicial immunity to suits brought under Section 1 of the Civil Rights Act of 1871, Title 42 U.S.C., Section 1983; legislative history did not show that there was no original intent not to extend “absolute judicial immunity”

XII.     “ELEVENTH AMENDMENT ‘IMMUNITY'”

XIII.     US CODE (FEDERAL)

1.  Title 5, US Code, Sec. 556(d), Sec. 557, Sec. 706- “Courts lose jurisdiction if they do not follow Due Process Law.”

2.  Edelman v. Jordan, 415 U.S. 651 (1974)-On Certiorari 7th Cir., Eleventh Amendment was a bar to a suit by private parties seeking to impose liability payable from public funds to the “state” treasury unless “state” waives “immunity” (Pp. 415 U.S.  662-663), in this case, application of Ex Parte v. Young, 209 U.S. 123 doctrine found erroneous because Ex Parte v. Young  had awarded only prospective, injunctive relief (See Ford Motor Company v. Department of Treasury of Indiana, 323 U.S. 459 (1945).

3.  Pennhurst State Sch. v. Halderman, 465 U.S. 89 (1984)- a class action suit brought by residents of this Pennsylvania institution, defendants were PA Department of Welfare, state county officials Mental Health/Mental “Retardation;”   upheld state’s “constitutional ‘immunity;'” The Court resolved that , since the Amendment did not bar a federal court from granting prospective injunctive relief  against “state” officials on the basis of federal claims, the same results obtained with respect to a pendent “state” law claim.

4.  Eleventh Amendment– “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another “State,” or by citizens or subjects of any Foreign State.

5. Tenth Amendment– “The Constitution‘s principle of federalism by providing that powers not granted to the federal government by the “States” are reserved to the “States,” respectively, or to the People (Sovereign)/”We the People.”

6. Ninth Amendment– The enumeration of powers in the Constitution should not be construed to deny or disparage others retained by the People (“Sovereign”/”We the People”).

7.  Ex Parte v. Young, 209 U.S. 123 (1908)- On Petition for Writ of Certiorari and Writ of Habeas Corpus in a suit by a stockholder against a corporation to enjoin directors and officers from complying with provisions of a “State” statute, alleged to be unconstitutional, brought through Equity Rule 94 of Court;  “Whether a “state” statute is unconstitutional because the penalties for its violations are so enormous that persons affected thereby are prevented from resorting to the courts for the purpose of determining the validity of the statute, and are thereby denied the equal protection of the law and their property rendered liable to be taken without due process of law is a Federal Question and gives Circuit Court jurisdiction.

III.   “COLLATERAL ESTOPPEL” DOCTRINE

       “ABSTENTION” DOCTRINES

1.  “Rooker-Feldman Doctrine,” (citing Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923);(District of Columbia Court of Appeals v. Feldman, 482 103 S. Ct.  1303 (1983)

2. “Younger-Harris Doctrine,”  (citing Younger v. Harris, 401 U.S. 31 (1971)-“holding that a federal court must abstain from enjoining a “state” criminal proceeding”

3.  “Domestic Relations Exception/D.R.E.”- a vin a vincula-” from board to bed” matters, originally

4.  Middlesex Cnty. Ethics Commission v. Garden State Bar Ass’n, __________, 432, 102 S. Ct. 2515, 73 L. Ed. 2d 116 (1982)- extended the “abstention” doctrine to cases seeking an injunction of “state” civil proceedings

5.  Wightman v. Tex. Supreme Court, ____________189 (5th Cir. 1985) (citing Middlesex Cnty., 457 U.S. at 432))-

6.  “Pullman ‘Abstention'”- aims to avoid “piecemeal” litigation

7.  “Colorado River “‘Abstention'” Doctrine-

8.   “Mootness” Doctrine-

9.  Samuels v. Mackell, 401 U.S. 66, 91 S. Ct. 764, 27 L. Ed. 2d 688 (1971)– “abstention” in cases of declaratory relief

10.  The “Wightman Prongs“-Circumstances for Federal Fifth Circuit Court  “abstention” according to the US Fifth Circuit Court of Appeals- (a)  the dispute involves an “ongoing” “state” judicial proceeding, (b) an important “state” interest in the subject of the proceeding involved, (c) the “state” court proceedings afforded an adequate opportunity to raise constitutional challenges (citing Wightman v. Tex. Supreme Court, 84 F. 3d188, 189 (5th Cir. 1996)(citing Middlesex Cnty., 457 U.S. at 432)).

Note: One might find it helpful to define all words or concepts emboldened and underlined if new to the terminology.

IV.     GRANDPARENT’S ‘RIGHTS’ OVERTURNED

1. Troxel v. Granville, 530 U.S. 57; 120 S. Ct. 2054 (2000)-The U.S. Supreme Court mandated that the standard for the “State” to intrude in parenting decisions relating to grandparent ‘visitation’ is no longer ‘best interests’ of the child. “This court should recognized the changed standard of State intrusion in parenting should also apply to the context of parents’ care, control, and maintenance, ie.. spending, i.e. child discipline decisions, on behalf of his or her children.”

V.     TEXAS STATUTORY CODES TO CROSS-REFERENCE

1.  Texas Government Code,

2.  Texas Human Resources Code,

3.  Texas Administrative Code (“T.A.C.”),

4.  Texas Family Code (especially, but certainly not limited to: Chapter 102 (), 105 (Settings, Hearings, and Orders), Chapter 107 (Special Appointments and Social Studies; TEX.FAM.CODE §107.013(a), as amended by S.B. 1759,( 83rdReg. Sess., effective Sept. 1, 2013), Chapter 152 (“Uniform Child Custody ‘Jurisdiction’ ‘Enforcement’ Act”/”UCCJEA”; cross reference  For service of process on a person outside the U.S., see SPECIAL ISSUES, Section 9, International Issues.

5.  Texas Penal Code,

6. Texas Occupations Code,

7.  Texas Health and Safety Code,

8.  Code of Criminal Procedure,

9.  Local Rules of Court,

10.  Individual Judge’s Rules of Court,

11.  Texas Civil Practice and Remedies Code,

12.  Texas Disciplinary Rules of Professional Conduct,

13.  Texas Rules of Evidence and Objection,

14.  Child Welfare Gateway (.com),

15. Texas Rules of Civil Procedure (“TRCP”),

16.  Texas Register,

17.  Most recent edition of Black’s Law Dictionary, and

18.  Texas Transportation Code.

18.  Texas Rules of Appellate Procedure,

19.  US Constitution and incorporated Bill of Rights,

20.  Texas Constitution,

21.  Declaration of Independence,

22.  Declaration of Rights,

23.  42 U.S.C. §11601 et seq.

24.  42 U.S.C. Section 1983 (Deprivation of Rights Under Color of Law); (codified as The Civil Rights Act of 1964, originally the Civil Rights Act of 1871)

25.  42 U.S.C. Section 1988 (reimbursement for attorneys fees in a Federal US Civil Rights action)

26. 42 U.S.C. Section 1985 (Conspiracy Against Rights Under Color of Law)

27.  O’ Connor’s Texas Family Code Plus (2011)

28.  Texas Finance Code

MAP OF THE ELEVEN CURRENT DISTRICTS FOR THE FEDERAL, US CIRCUIT COURTS OF APPEAL THAT INTERPRET THE LAW FOR ITS ENTIRE DISTRICT (THE “States” That Comprise Each District)

Source:  http://www.catea.gatech.edu/grade/legal/circuits.html

Map of the United States

9th Circuit, AZ, AK, CA, HI, ID, MT, NV, OR, WA (San Francisco) 10th Circuit, CO, KS, NM, OK, UT, WY (Denver) 5th Circuit, LA, MS, TX (New Orleans) 11th Circuit, AL, FL, GA (Atlanta) 8th Circuit, AR, IA, MN, MO, ND, NE, SD (St. Louis) 7th Circuit, IL, IN, WI (Chicago) 6th Circuit, KY, MI, OH, TN (Cincinnati) 4th Circuit, MD, NC, SC, VA, WV (Richmond) 3rd Circuit, DE, NJ, PA (Philadelphia) 2nd Circuit, CT, NY, VT (New York) 1st Circuit, MA, ME, NH, RI (Boston) D.C. Circuit - Washington, DC 9th Circuit, AZ, AK, CA, HI, ID, MT, NV, OR, WA (San Francisco) 9th Circuit, AZ, AK, CA, HI, ID, MT, NV, OR, WA (San Francisco)

The Master asks the questions, the slave answers the questions. Bah! Also, answer a question with a question. Do not volunteer any information or into their jurisdiction.

SHUTTLESWORTH V. CITY OF BIRMINGHAM, 373 U. S. 262 (1963): “If the State converts a right (liberty) into a privilege, the citizen can ignore the license and fee and engage in the right (liberty) with impunity.”

Davis v. Mississippi, 394 U.S. 721 (1969): Your photograph and fingerprints are your property. Do not give these away. Do not sign anything, you sign manual is your property; do not give it away. Especially, do not sign fingerprint cards or booking sheets (hotel registry). They are required to get your signature on the fingerprint card before they can fingerprint you. Going jail or prison is voluntary; you or your RE-present must sign the contracts. How many years of slavery are you willing to contract yourself into?

COUNTY OF RIVERSIDE v. McLAUGHLIN, 500 U.S. 44 (1991): Brought Davis, supra, forward and added that unless they get one to voluntarily sign into their iron-bar hotel they must let one go within seventy-two hours unless they get a warrant or indictment. However, if they play the psychiatric evaluation bit, then they may hold their victim for 72 hours plus two days, or possibly longer; though, now under the [so-called] Patriot Act, they can hold anyone for seven days as a suspected terrorist. Who knows what else these morons will pull next. So, do not be surprised that once they have you, they may never let you go.

Samuel H. SHEPPARD, Petitioner, v. E. L. MAXWELL, Warden, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600, (June 6, 1996): Supreme Court ruled prejudicial publicity– had made trial a carnival–.

Farette v. California, 422 U.S. 806, 807, 95 S. Ct. 2525, 2527, 45 L. Ed. 2d 562, 566 (1975): I can read, write, and speak America’s English, that is all I need to know to defend Myself. Education, Military background, work background, etc. is none of the STATE’s business. Remember one has the right to remain silent and everything that one says can and will be used against oneself, not for oneself. They can not arraign or sentence one if one is without representation. Defend ones self. Be ones self. NEVER Re-Present yourself. NEVER! Entrapment: “Pro Se” = Self Re-Presentation and temporary appointment to the State BAR. Beware! NEVER let the Black Robe Devil or their Jester ever refer to one as “Pro Se” or “Pro Per” or “Pro” anything. NEVER! Take EXCEPTION to the Devil’s Utterances. Move to OBJECTION to the Jester’s Utterance. Remember, Only, that which is on the record can be appealed. Get it in on the record. In the last paragraph of Farette (supra) the US Supreme court ruled that one who self-RE-Presents is a fool–.

Trezevant v. City of Tampa, 741 F.2d 336 (11th Cir. 1984): US Court of Appeal awarded $65,217.39/hour for false imprisonment.

Hafer v. Melo, 502 U.S. 21 (1991): The US Supreme Court ruled that public Officials (Judge are not exempt) who cause “Unauthorized Deprivations” lose their Eleventh Amendment Protection and are subject to suit for damages under 42 U.S.C. § 1983. This Case before the US Court of Appeals is found at 912 F.2d 628. The key is negligence: acting in excess or without authority or jurisdiction or failing to act when required to do so. Also read Melo v. Hafer, 13 F.3d 736 (3d Cir. 1994).

If the government morons cry and plea sovereign immunity, then here are some other cases, which lay that nonsense to rest. Westfall v. Erwin, 484 US 292 (1988); Will v. Michigan State Police, 491 US 58 (1989); and Mitchum v. Foster, 407 US 225 (1972). The latter makes the bureaucRATS cringe. When coupled with PL 94-381 and Senate Report 94-204, 28 U.S.C. § 2284.

THE BELLIGERENT CLAIMANT

“The privilege against self-incrimination is neither accorded to the passive resistant, nor the person who is ignorant of his rights, nor to one indifferent thereto. It is a fighting clause. Its benefits can be retained only by sustained combat. It can not be retained by attorney or solicitor. It is valid only when insisted upon by a belligerent claimant in person. The one who is persuaded by honeyed words or moral suasion to testify or produce documents rather than make a last ditch stand, simply loses the protection. Once he testifies to part, he has waived his right and must on cross examination or otherwise, testify as to the whole transaction. He must refuse to answer or produce, and test the matter in contempt proceedings, or by habeas corpus.”
District Judge James Alger Fee; United States v. Johnson, 76 F. Supp. 538 (at page 540)
District Court, M.D. Pennsylvania Feb. 26, 1947

Administrative Procedures Act 5 U.S.C. §556(d)


Griffin v. California, 380 U.S. 609 (1965) Eddie Dean Griffin had been accused of assaulting and murdering a female friend of his. To these charges, he plead not guilty. Griffin’s counsel recommended that he not testify on the grounds that the prosecution’s case was entirely circumstantial. During the trial, the prosecutor brought into evidence the fact that Griffin had been seen in the alley where the victim was found and had left it “cool as a cucumber”. The main thrust of his closing statement, however, concerned the defendant’s refusal to testify. The jury found Griffin guilty and sentenced him to death. Griffin appealed the case on the grounds that he was denied his Fifth Amendment right refrain from testifying as a defense. The Supreme Court found in his favor. They reasoned that by referring to the defendant’s lack of testimony in front of the jury, the prosecution denied him his Fifth and Fourteenth Amendment rights. The Court went on to say what the jury “may infer when the court solemnizes the silence of the accused into evidence against him is [dangerous].”

Miranda v. Arizona

Terms:

Confession:
A confession is a statement made by a Defendant which indicates his or her acknowledgement of guilt and evidences his or her involvement in a crime. An out-of-court confession is known as an “extrajudicial” confession, regardless of to whom the confession is made. Confessions may be voluntary or involuntary (if coerced or induced). Confessions may be explicit or implied.

Admission:
Broader than a confession, an admission is a statement of relevant fact, voluntarily made by a party, usually inconsistent with that party’s interests. In the context of criminal cases, an admission is a statement made directly by the defendant which tends to prove the defendant’s guilt, when connected with other relevant facts. An admission, unlike a confession, falls short of acknowledging all the elements of a crime. Admissions may be explicit or implied.

Privilege:
A privilege is an advantage, benefit, power, exemption, right or immunity held by some person or entity. Because privilege is an affirmative defense, the defendant must plead the privilege in order to avail himself of it.

Natural persons:
Natural persons are actual, real-life people. In some areas of law rules apply to corporations, partnerships, association, etc., just as they would to you or me, and these entities are not distinguished from individual living beings. If a rule of law applies to “natural persons” only, however, these other entities are excluded from its applicability.

Self-Incriminating:
Any statement, declaration, or act made as testimony during or prior to trial which implicates the person providing the testimony played some role in the commission of a criminal offense which would subject her to criminal liability.

Testimonial Evidence:

Evidence given by a party while under oath or affirmation. This does not include evidence derived from writings or other sources, but rather only from “live witnesses speaking under oath or affirmation in presence of tribunal, judicial or quasi judicial.” See Black’s Law Dictionary, 6th Ed., West Publishing Co., 1990. Because Miranda, as we shall see below, applies not only to testimony but to any self-incriminating statements, the Miranda rights apply to written statements as well as to testimonial evidence.

Most people in the United States have, at some point, seen a television show or a movie in which, while arresting a suspect, the police officer “reads him his rights.” The “rights” here are based in the Fifth Amendment, and the reasons for the reading of the rights by the police officer stem from the privilege against self-incrimination, which may be waived or asserted. The rights, as read by police officers, are something to this effect:

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford one, one will be provided for you by the court.

The Fifth Amendment itself, however, does not contain this language that we have come to know so well, nor is this language found in any statute. This language, which has come to be known as the “Miranda warnings” come to us from the case of Miranda v. Arizona, 384 U.S. 436 (1966).

The privilege against self-incrimination found in the Fifth Amendment, and thus the requirement for the Miranda warnings, applies to the states as well as to the federal government. See Malloy v. Hogan, 378 U.S. 1 (1964).

The Fifth Amendment privilege against self-incrimination applied to the states by the Malloy court, and further delineated in Miranda, boils down to the following:

A Defendant’s statement made while in custody, and in response to interrogation, cannot be used to establish the defendant’s guilt in a criminal trial, unless the Defendant was appropriately advised of his Fifth Amendment privilege and voluntarily chose to waive that privilege.

In the next few sections we will address the concepts of custody, interrogation, and voluntary waiver of the privilege. Now, let’s look at the privilege itself.

In Miranda the court decided that:

Prior to any questioning, the suspect must be warned that he has a right to remain silent, that any statement the suspect does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. and that the defendant may waive effectuation of these rights. See Miranda v. Arizona, 384 U.S. 436 (1966).

There are two distinct rights spelled out here – the right to remain silent and the right to have an attorney present during questioning – and they have different ramifications for questioning suspects.

The right to remain silent must be asserted contemporaneously with the questioning, meaning that a defendant cannot answer a question and then later try to exercise the privilege against self-incrimination regarding that question and “cancel” the previous answer. She may, however, exercise the privilege regarding any future questions. (See most recent case law on this, contradicted or superseded in Crawford v. Washington, I believe?)

EXAMPLE: Beth is arrested for the stabbing death of her abusive husband. After being properly read her rights (also referred to as being “Mirandized”), Officer Gentle asks what kind of relationship she had with the deceased. Beth replies “Well, all I can say about it is that he was a no-good, drunken slob, and I’m glad he’s dead.” Officer Gentle then says “I’m glad too. And I’d sure like you to tell me which knife you used to kill him.” Beth then asserts her privilege against self-incrimination by refusing to answer any further questions. Her response to the initial question is admissible as evidence against her at her criminal trial, but she cannot be compelled to respond to any further questions.

Once the “right to remain silent” has been asserted, all questioning regarding that matter must cease. It is permissible, however, to question the defendant about unrelated crimes or incidents. In other words, the right to remain silent is “offense specific,” and following a break and fresh Miranda warnings, questioning may continue along different lines. (Contradicted or Superseded, Cross-Reference updated law on this from 2006)

EXAMPLE: A few minutes after Beth asserts her privilege above, Officer Malkop enters the room. He Mirandizes Beth again, and tells her that they found 57 cases of ketchup in her closet, which had been reported stolen from a local supply house last week. He then asks her what she did with the mustard that was also stolen. “I used it on my french fries, of course,” she replies. This statement can be used against Beth in her trial for committing the condiment crimes.

The right to the presence of an attorney during questioning operates in a substantially different manner than does the right to remain silent. While the right to remain silent may be exercised by doing just that – remaining silent – a demand for counsel must be explicit. That is, the defendant must assert the right by requesting counsel and stating that she will not answer any further questions outside the presence of counsel.

EXAMPLE (1) After the mustard mistake, Beth realized that she might be in serious trouble, and says “I won’t say another word about my husband until my lawyer gets here.” Not only must Officer Gentle stop asking questions about the dead husband, but Officer Malkop cannot ask any further questions about the misappropriated mustard.

EXAMPLE (2) Later than night, Lucy, Beth’s daughter, is taken into custody for questioning regarding her mother’s husband’s death. After being Mirandized, Lucy says “I don’t need a lawyer, but I won’t say a word unless my priest is here.” The police continue to question her, refusing her access to her priest, until she sobbingly confesses that she provided the knife which was used to kill Beth’s husband, knowing what the knife was to be used for. Because refusing to answer questions outside the presence of a priest is not an assertion of Lucy’s Fifth Amendment privilege to have counsel present during questioning, her confession can be used against her in criminal court. See In re Michael C., 21 Cal.3d 471 (1978).

As with most rules of law, there is an important exception to the Miranda requirements. If there is a public safety concern, the individual’s rights are temporarily outweighed by the need to protect the public. In such a case, even if police question a suspect prior to Mirandizing, the responses can be used at trial. See New York v. Quarles, 467 U.S. 649 (1984).

EXAMPLE: Officer Kobruh comes upon an armed gunman in a crowded supermarket. The radio dispatcher had indicated that at least two gunmen were involved. After not-so-gently subduing and handcuffing the gunman, Officer Kobruh asks “Where’s your gun?” The scared gunman replies “I was just the lookout. The other guy is hiding behind the fish display. I dropped my gun over there when I was trying to run away .” When the smoke clears, Officer Kobruh reads both assailants their Miranda warnings. The gunman’s statement is admissible as evidence against him because locating the gun was important enough to public safety so that it effectively outweighed the Fifth Amendment rights of the suspect.

In addition to this exception, there are some other limits on the Fifth Amendment privilege. First, the privilege may be asserted only by natural persons (if it cannot be asserted on behalf of the corporation). Second, the privilege applies only to self-incriminating statements. In other words, the responses of a suspect in a burglary investigation who was not Mirandized can be used to convict his accomplice at trial, but cannot be used to convict the suspect himself. Finally, only testimonial evidence is covered by the privilege. That is, evidence which is elicited from questioning a witness or suspect. Physical evidence, such as the results of a blood test, are not covered by the Fifth Amendment and can be used regardless of whether a suspect was Mirandized and regardless of whether that suspect asserted or waived her privilege. See Gilbert v. California, 388 U.S. 263 (1967).

EXAMPLE: Tom Plume is arrested for forgery. He is suspected of cashing over $50,000 worth of stolen checks. After reading Tom his Miranda warning, Officer Chimeron hands him a form and asks him to complete the sections where it asks for name, date of birth and today’s date, and then to sign the form at the bottom. Officer Chimeron explains that this is a standard form used to confirm that the Miranda warning has been read and understood, and that it does not entail a waiver of Tom’s privilege against self-incrimination. As Tom is filling out the form he says “Good, because I’m not waiving my rights.” Handwriting analysis proves that Tom’s writing on the form, matches that of the forger, and when admitted as evidence in court, this leads to Tom’s conviction. Because Tom’s handwriting and signature are physical evidence and not testimonial evidence, the Fifth Amendment privilege is inapplicable.

One similarity between the Fourth Amendment protection against unreasonable searches and seizure and the Fifth Amendment privilege against self-incrimination is the “government agent” requirement. The privilege here can only be asserted against a questioner known by the suspect to be a government agent. See Illinois v. Perkins, 496 U.S. 292 (1990).

EXAMPLE: Undercover Officer Harskey and his partner Stutch are at a local bar hanging out with the guys. The “guys” happen to be involved in a highly profitable drug ring. Harskey and Stutch ask their companions where they can “buy some stuff.” One gentleman replies “I can get you the best stuff you’ve ever seen. I carry it in from Guadeloupe myself by bribing the customs agents at the airport.” Because the drug smuggler did not know the true identities of Harskey and Stutch, there is no possible coercion, and the lack of a Miranda warning does not preclude using the extrajudicial confession against him in court.

©2003 – 2007 National Paralegal College

Compiled by Sir David
Fourth Revision

Escobedo v Illinois, 378 U.S. 478 (1964): Illegal search and seizure. Escobedo was arrested in connection with a murder and brought to the police station. He repeatedly asked to see his lawyer, but was never allowed out of the interrogation room. His lawyer even went so far as to come to the police station in search of him, but was denied access. Escobedo then confessed while under interrogation to firing the shot that killed the victim. As a result, he was soon convicted. Escobedo appealed to the Supreme Court and it overturned the conviction. The Court extended the “exclusionary rule” to illegal confessions and ruled that Escobedo’s confession should not have been allowed in as evidence. The Court also defined the “Escobedo Rule” which holds that individuals have the right to an attorney when an “investigation is no longer a general inquiry...but has begun to focus on a particular suspect…” The ruling went on to detail that (Where) the suspect has been taken into custody…the suspect has requested…his lawyer, and the police have not…warned him of his right to remain silent, the accused has been denied…counsel in violation of the Sixth Amendment.

Miranda v. Arizona, 384 U.S. 436 (1966) (111 pages); — Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.– You have the right to remain silent; that is, do not answer any questions. Like: What is your name? Where do you live? What is Your Educational level? Where did you attend school? What is your SS number? Are you employed? Who is your employer? Are you married? Are you in insured? What is your religion? Do you have any scares? Did you see that stop sign? Everything you say, can and WILL be used against you.– The only one to testify against you is yourself.

Read, learn, reference:

“Me, I am aware of _______ as found in _____________ and I do rely upon it.”

“If you’ve relied on prior decisions of the Supreme Court you have a perfect defense for willfulness.”
U.S. v. Bishop, 412 U.S. 346“Federal law & Supreme Court cases apply to state court cases.”
Howlett v. Rose, 496 U.S. 356 (1990)“Jurisdiction, once challenged, cannot be assumed and must be decided.”
Maine v. Thiboutot, 100 S. Ct. 250

RIGHTS AND LIBERTIES

Bigger text (+)Smaller text (-)

Carlisle v. United States, 83 U.S. 147, 154 (1873),
‘The rights of sovereignty extend to all persons and things not privileged, that are within the territory. They extend to all strangers resident therein; not only to those who are naturalized, and to those who are domiciled therein, having taken up their abode with the intention of permanent residence, but also to those whose residence is transitory. All strangers are under the protection of the sovereign while they are within his territory and owe a temporary allegiance in return for that protection.’ “

In Leiberg v. Vitangeli, 70 Ohio App. 479, 47 N.E.2d 235, 238-39 (1942)
“These constitutional provisions employ the word ‘person,’ that is, anyone whom we have permitted to peaceably reside within our borders may resort to our courts for redress of an injury done him in his land, goods, person or reputation. The real party plaintiff for whom the nominal plaintiff sues is not shown to have entered our land in an unlawful manner. We said to her, you may enter and reside with us and be equally protected by our laws so long as you conform thereto. You may own property and our laws will protect your title.

“We, as a people, have said to those of foreign birth that these constitutional guaranties shall assure you of our good faith. They are the written surety to you of our proud boast that the United States is the haven of refuge of the oppressed of all mankind.”

UNITED STATES v. MINKER, 350 U.S. 179 (1956)
Those safeguards would be imperiled if prior to the institution of the proceedings the citizen could be compelled to be a witness against himself and furnish out of his own mouth the evidence used…included within the protection of all the guarantees of the Constitution.

Court will assign to common-law terms their common-law meaning unless legislature directs otherwise. People v. Young, (1983) 340 N.W.2d 805, 418 Mich. 1.

Common law, by Constitution, is law of state. Beech Grove Inv. Co. v. Civil Rights Com’n, (1968) 157 N.W.2d 213, 380 Mich. 405.

“Common law” is but the accumulated expressions of various judicial tribunals in their efforts to ascertain what is right and just between individuals in respect to private disputes. Semmens v. Floyd Rice Ford, Inc., (1965) 136 N.W.2d 704, 1 Mich.App. 395.

The right to make common-law dedications is not abridged by the statutory regulations providing for dedications in certain specific ways. Village of Grandville v. Jenison, (1890) 47 N.W. 600, 84 Mich. 54, affirmed 49 N.W. 544, 86 Mich. 567.

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

“The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution, provided such limitations and restrictions on the powers of its particular government, as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes. If these propositions be correct, the fifth amendment must be understood as restraining the power of the general government, not as applicable to the states.”

Code is “not the law” (In Re Self v Rhay, 61 Wn (2d) 261) defined by Black’s Law Dictionary as prima facie, which is color of law. color is “counterfeit or feigned”.

The real law is the common law as described in the above case and the code itself. The People are not “subject to law” generally (Yick Wo v Hopkins, 118 US 356, 370) except for the criminal codes that are codified common law. Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable on any country where freedom prevails, as being the essence of slavery itself. See: Yick Wo v. Hopkins, 118 U.S. 356 (1886).

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

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

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

“We the people… do ordain and establish the Constitution for the United States of America .” See: Preamble to the U.S. Constitution (1789).

“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” See: Article IX, U.S. Constitution.

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

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

For it can never be maintained in any tribunal in this country that the people of a State, in the exercise of the powers of sovereignty, can be restrained within narrower limits than that fixed by the Constitution of the United States . . . the people of a State may, by the form of government they adopt, confer on their public servants and representatives all the power and rights of sovereignty which they themselves possess; or may restrict them within such limits as may be deemed best and safest for the public interest. See: Ohio Life Ins. & Trust Co. v. Debolt, 16 How 415, 428-9.;

The phrase as used in the constitution does not mean a statute passed for the purpose of working the wrong. That construction would render the restriction absolutely nugatory. The people would be made to say to the houses, ‘You shall be vested with the legislative power of the state, but no one shall be disfranchised or deprived of any of the rights or privileges of a citizen, unless you shall not do the wrong unless you choose to do it.’ See: Per Bronson, J., In Taylor v. Porter, 4 Hill (N.Y.) 140, 40 AM, Dec 274.

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

Strictly speaking, in our republican form of government, the absolute sovereignty of the nation is in the people of the nation; and the residuary sovereignty of each state, not granted to any of its public functionaries, is in the people of the state. See: 2 Dall. 471; Bouv. Law Dict. (1870).

I believe there are more instances of the abridgement of the freedom of the people by the gradual and silent encroachment of those in power than by violent and sudden usurpations. See: James Madison.

The theory of the American political system is that the ultimate sovereignty is in the people, from whom all legitimate authority springs, and the people collectively, acting through the medium of constitutions, create such governmental agencies, endow them with such powers, and subject them to such limitations as in their wisdom will best promote the common good. See: First Trust Co. v. Smith, 134 Neb.; 277 SW 762.

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

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

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

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

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

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

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

CRIMINAL LAW & PROCEDURE

PEOPLE v. THOMPSON, No B 176808 (Cal. 2d App. Dist. November 17, 2004)
Warrantless entry into a residence to detain a suspect for removal outside for possible identification and possible citizen’s arrest does not fall within the “hot pursuit” exception to the Fourth Amendment.

BARRETT v. STEUBENVILLE CITY SCHOOLS, No. 03-4373 (6th Cir. Nov 15, 2004)
Parents have a constitutionally protected liberty interest in raising and directing the education of their children

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

Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself. (Yick Wo vs. Hopkins, U.S. 356 (1886).

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

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

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

City of Dallas v Mitchell, 245 S.W. 944
“The rights of the individuals are restricted only to the extent that they have been voluntarily surrendered by the citizenship to the agencies of government.”

HURTADO v. PEOPLE OF STATE OF CALIFORNIA, 110 U.S. 516 (1884)
at page 533 of the ruling on constitutional rights held by the People, “Indeed, the great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and circumstances.’ “
at page 535 of the ruling, “It is not every act, legislative in form, that is law. Law is something more than mere will exerted as an act of power.”

CHICAGO & G. T. R. CO. v. WELLMAN, 143 U.S. 339 (1892)
at page 345 of the constitutional ruling of rights retained by the people,
“Whenever, in pursuance of an honest and actual antagonistic assertion of rights by one individual against another, there is presented a question involving the validity of any act of any legislature, state or federal, and the decision necessarily rests on the competency of the legislature to so enact, the court must, in the exercise of its solemn duties, determine whether the act be constitutional or not; but such an exercise of power is the ultimate and supreme function of courts. It is legitimate only in the last resort, and as a necessity in the determination of real, earnest, and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.”

MUTUAL LOAN INSURANCE CO. Vs MARTELL, 222 US 225
at page 233 of the ruling on constitutional rights of the People,
“Certain general principles, however, must be taken for granted. It is certainly the province of the State, by its legislature, to adopt such policy as it seems best. There are constitutional limitations, of course, but these allow a very comprehensive range of judgment. And within that range the Massachusetts statute can be justified. Legislation cannot be judged by theoretical standards. It must be tested by the concrete conditions which induced it.”

Supreme Court Justice Brandeis spoke, in the case of Olmstead v. United States when he said: “Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the laws scrupulously. Our government is the potent omnipresent teacher. For good or ill, it teaches the whole people by it’s example. Crime is contagious. If the government becomes a law breaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of criminal laws the end justifies the means to declare that the government may commit crimes in order to secure the conviction of a private criminal —- would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face. …And so should every law enforcement student, practitioner, supervisor, and administrator”

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

U.S. v. LEE, 106 U.S. 196 (1882)
“Under our system the people, who are there called subjects, are the sovereign. Their rights, whether collective or individual, are not bound to give way to a sentiment of loyalty to the person of the monarch. The citizen here knows no person, however near to those in power, or however powerful himself, to whom he need yield the rights which the law secures to him when it is well administered. When he, in one of the courts of competent jurisdiction, has established his right to property, [106 U.S. 196, 209] there is no reason why deference to any person, natural or artificial, not even the United States, should prevent him from using the means which the law gives him for the protection and enforcement of that right.”

“The term [liberty] …denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, to establish a home and bring up children, to worship God according to the dictates of this own conscience… The established doctrine is that this liberty may not be interfered with, under the guise of protecting public interest, by legislative action. “Meyer v. Nebraska, 262 U.S. 390, 399, 400.

No legislature can bargain away the public health or the public morals. The people themselves cannot do it, much less their servants. (See police power) New Orleans Gas Co. v. Louisiana Light Co., U.S. 650, 667.

For it can never be maintained in any tribunal in this country that the people of a State, in the exercise of the powers of sovereignty, can be restrained within narrower limits than that fixed by the Constitution of the United States…the people of a State may, by the form of government they adopt, confer on their public servants and representatives all the power and rights of sovereignty which they themselves possess; or may restrict them within such limits as may be deemed best and safest for the public interest. (See police power) Ohio Life Ins. & Trust Co. v. Debolt, 16 How 415, 428-9.

The phrase as used in the constitution does not mean a statute passed for the purpose of working the wrong. That construction would render the restriction absolutely nugatory. The people would be made to say to the houses, ‘You shall be vested with the legislative power of the state, but no one shall be disfranchised or deprived of any of the rights or privileges of a citizen, unless you shall not do the wrong unless you choose to do it.’ Per Bronson, J., In Taylor v. Porter, 4 Hill (N.Y.) 140, 40Am, Dec. 274.

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

Strictly speaking, in our republican form of government, the absolute sovereignty of the nation is in the people of the nation; and the residuary sovereignty of each state, not granted to any of its public functionaries, is in the people of the state. 2 Dall. 471; Bouv. Law Dict (1870).

The theory of the American political system is that the ultimate sovereignty is in the people, from whom all legitimate authority springs, and the people collectively, acting through the medium of constitutions, create such governmental agencies, endow them with such powers, and subject them to such limitations as in their wisdom will best promote the common good. First trust Co. v. smith, 134 Neb. 277 SW 762.

What is a constitution? It is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental laws established.” Van Horne v. Dorrance, 2 Dall 304.

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

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

But it cannot be assumed that the framers of the Constitution and the people who adopted it did not intend that which is the plain import of the language used. When the language of the Constitution is positive and free from all ambiguity, all courts are not at liberty, by a resort to the refinements of legal learning, to restrict its obvious meaning to avoid hardships of particular cases, we must accept the Constitution as it reads when its language is unambiguous, for it is the mandate of the sovereign powers. State v. Sutton, 63 Minn. 147, 695 WX N.W., 262, 30 L.R.A. 630, 56 Am. St. 459; Lindberg v. Johnson, 93 Minn. 267, 101, N.W. 74; Cook vs Iverson, 122, N.M. 251.

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

There have been powerful hydraulic pressures throughout our history that bear heavily on the court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today. Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can “seize” and “search” him in their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country. Terry v. Ohio, 392 U.S. 39 (1967).  Constitution extends to equal protection of the laws to people, not to interest. Taylor vs McKeithen, 499 F.2d 893, C.A. La 1974.

JONES v. STATE BOARD OF EDUCATION OF TENNESSEE ET AL., 397 U.S. 31; 90 S. Ct. 779;25 L. Ed. 2d 27
Moreover, it is far too late to suggest that since attendance at a state university is a “privilege,” not a “right,” there are no constitutional barriers to summary withdrawal of the “privilege.” Such labeling does not resolve constitutional questions, as we recently noted in Shapiro v. Thompson, 394 U.S. 618, 627 n. 6. The doctrine that a government, state or federal, may not grant a benefit or privilege on conditions requiring the recipient to relinquish his constitutional rights is now well established. E. g., Cafeteria Workers v. McElroy, 367 U.S. 886, 894; Sherbert v. Verner, 374 U.S. 398, 404; Speiser v. Randall, 357 U.S. 513, 519-520; Garrity v. New Jersey, 385 U.S. 493, 499-500; Kwong Hai Chew v. Colding, 344 U.S. 590, 597-598; [*6] Frost & Frost Trucking Co. v. Railroad Comm’n, 271 U.S. 583, 593-594; see Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv. L. Rev. 1439, 1445-1454 (1968); Comment, Another Look at Unconstitutional Conditions, 117 U. Pa. L. Rev. 144 (1968). As stated in Homer v. Richmond, 292 F.2d 719, 722:

“One may not have a constitutional right to go to Baghdad, but the Government may not prohibit one from going there unless by means consonant with due process of law.”

This does not mean that the whole panoply of the Bill of Rights is applicable to student dismissal proceedings. It does mean, however, that where there are “constitutional restraints upon state and federal governments” in dealing with the persons subject to their supervision, the persons in question have “a constitutional right to notice and a hearing before they can be removed.” Cafeteria Workers v. McElroy, supra, at 898.

TINKER ET AL. v. DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT ET AL., 393 U.S. 503; 89 S. Ct. 733; 21 L. Ed. 2d 731
The decision cannot be taken as establishing that the State may impose and enforce any conditions that it chooses upon attendance at public institutions of learning, however violative they may be of fundamental constitutional guarantees. See, e. g., West Virginia v. Barnette, 319 U.S. 624 (1943); Dixon v. Alabama State Board of Education, 294 F.2d 150 (C. A. 5th Cir. 1961); Knight v. State Board of Education, 200 F.Supp. 174 (D. C. M. D. Tenn. 1961); Dickey v. Alabama State Board of Education, 273 F.Supp. 613 (D. C. M. D. Ala. 1967). See also Note, Unconstitutional Conditions, 73 Harv. L. Rev. 1595 (1960); Note, Academic Freedom, 81 Harv. L. Rev. 1045 (1968).

In West Virginia v. Barnette, supra, this Court held that under the First Amendment, the student in public school may not be compelled to salute the flag. Speaking through Mr. Justice Jackson…..The District Court concluded that the action of the school authorities was reasonable because it was based upon their fear of a disturbance from the wearing of the armbands. But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, Terminiello v. Chicago, 337 U.S. 1 (1949); and our history says that it is this sort of hazardous freedom — this kind of openness — that is the basis of our national strength and [*11] of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.

MICHAEL A. NEWDOW v. U.S. CONGRESS, 328 F.3d 466
The Bill of Rights is, of course, intended to protect the rights of those in the minority against the temporary passions of a majority which might wish to limit their freedoms or liberties. As Justice Jackson recognized: The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, [*9] and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638, 87 L. Ed. 1628, 63 S. Ct. 1178 (1943). It is the highest calling of federal judges to invoke the Constitution to repudiate unlawful majoritarian actions and, when necessary, to strike down statutes that would infringe on fundamental rights, whether such statutes are adopted by legislatures or by popular vote. The constitutional system that vests such power in an independent judiciary does not “test[] the integrity of . . . democracy.” It makes democracy vital, and is one of our proudest heritages.

Moreover, Article III judges are by constitutional design insulated from the political pressures governing members of the other two branches of government. We are given life tenure and a secured salary so that, in our unique capacity to “say what the law is,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L. Ed. 60 (1803), we may decide constitutional issues without regard to popular vote, political [* 10] consequence, or the prospect of future career advancement. n3 Most federal judges do not question the wisdom of this approach. When the federal judiciary is so firmly separated by constitutional structure from the direct influence of politics, we must not undermine that structure by allowing political pressures, polls, or “focus groups” to influence our opinions, even indirectly.

Alexander Hamilton was admirably cognizant of the danger of relying on temporary political whimsy: This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors which the arts of designing men, or the influence of particular conjectures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. THE FEDERALIST NO. 78, at 437 (Alexander Hamilton) (Clinton Rossiter ed., 1999).

We may not — we must not — allow public sentiment or outcry to guide our decisions. It is particularly important that [*12] we understand the nature of our obligations and the strength of our constitutional principles in times of national crisis; it is then that our freedoms and our liberties are in the greatest peril. Any suggestion, whenever or wherever made, that federal judges should be encouraged by the approval of the majority or deterred by popular disfavor is fundamentally inconsistent with the Constitution and must be firmly rejected.

The Declaration of Independence contains multiple references to God. The founders claimed the right to “dissolve the political bands” based on “the Laws of Nature and of Nature’s God.” The most famous passage, of course, is that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights.” Subsequently, the signatories “appeal[] to the Supreme Judge of the world to rectify their intentions.”

United States v Dougherty, 473 F.2d 1113, 1122.
The court states, “…Judge Miller, joined by Judges Prettyman, Danaher And Bastian, stated that the pro se right is statutory only, and therefore (a) defendant must assert the right in order to be entitled to it and (b) in any event no reversal was required since no prejudice could be discerned” “The Government says the pro se right is statutory and subject to ‘extensive qualifications, ‘discerning in the decisions seven ‘factors’ on the basis of which the pro se right may be partially or entirely denied.”

Von Hoffman v. City of Quincy, 4 Wall. 535, 552.
“Nothing can be more material to the obligation than the means of enforcement. Without the remedy the contract may, indeed, in the sense of the law, be said not to exist, and its obligation to fall within the class of those moral and social duties which depend for their fulfillment wholly upon the will of the individual. The ideas of validity and remedy are inseparable, and both are parts of the obligation, which is guaranteed by the Constitution against invasion. The obligation of a contract ‘is the law which binds the parties to perform their agreement.'” red CROSS LINE vs. ATLANTIC FRUIT COMPANY, 264 U.S. 109, 68 L. Ed. 582, 44 S. Ct. 274 February 18, 1924 Decided.

FORUM FOR ACADEMIC & INSTITUTIONAL RIGHTS v. RUMSFELD, No. 03-4433 (3d Cir. November 29, 2004 )
Denial of plaintiff’s motion to enjoin enforcement of the Solomon Amendment, 10 U.S.C. section 983, is reversed where plaintiff is entitled to preliminary injunctive relief since it has demonstrated a likelihood of success on the merits of its First Amendment claims.

THE “BELLIGERENT” CLAIMANT

“The privilege against self-incrimination is neither accorded to the passive resistant, nor the person who is ignorant of his rights, nor to one indifferent thereto. It is a fighting clause. Its benefits can be retained only by sustained combat. It can not be retained by attorney or solicitor. It is valid only when insisted upon by a belligerent claimant in person. The one who is persuaded by honeyed words or moral suasion to testify or produce documents rather than make a last ditch stand, simply loses the protection. Once he testifies to part, he has waived his right and must on cross examination or otherwise, testify as to the whole transaction. He must refuse to answer or produce, and test the matter in contempt proceedings, or by habeas corpus.”
District Judge James Alger Fee; United States v. Johnson, 76 F. Supp. 538 (at page 540)District Court, M.D. Pennsylvania Feb. 26, 1947

ADMINISTRATIVE AGENCIES MUST GIVE YOU DUE PROCESS

Administrative Procedure Act
Title 5 – United States Code – Chapter 5, sections 511-599Administrative agencies must give you due process:

We have held that a party appearing before an administrative agency is entitled to due process in the proceedings. See Smith v. Everett, 276 Ark. 430, 637 S.W.2d 537 (1982).

A fair trial by a fair tribunal is a basic requirement of due process.. This rule applies to administrative agencies as well as to courts. See Sexton v. Ark. Supreme Ct. Comm. on Profess. Conduct, 299 Ark. 439, 774 S.W.2d 114 (1989); See also Arkansas Elec. Energy Consumers v. Ark.. Pub. Serv. Comm’n, 35 Ark. App. 47, 813 S.W.2d 263 (1991).

Administrative agency adjudications are also subject to the “appearance of bias” standard applicable to judges. Acme Brick Co. v. Missouri Pac. R.R., 307 Ark. 363, 821 S.W.2d 7 (1991).

As the underlying philosophy of the Administrative Procedures Act is that fact finding bodies should not only be fair but appear to be fair, it follows that an officer or board member is disqualified at any time there may be reasonable suspicion of unfairness. Ark. Racing Comm’n v. Emprise Corp., 254 Ark. 975, 497 S.W.2d 34 (1973).

Legal citations below are from Arkansas; other states must have rulings regarding the APA also.

Thanks to Bob Hurt

U.S. FIFTH CIRCUIT COURT OF APPEALS OR US SUPREME COURT REVERSALS, 1995-2000 (SOURCE: THE JAILHOUSE LAWYERS, CASELAW COLLECTION, “REVERSIBLE ERRORS“) WWW.ADVANCEDHEALTHPLAN.COM/REVERSIBLEERRORS.HTM

1.  United States v. Daigle, 63 F.3d 346 (5th Cir. 1995) (The court improperly engaged in plea bargaining).

2.  United States v. Posado, 57 F.3d 428 (5th Cir. 1995) (The per se rule prohibiting polygraph evidence was abolished by Daubert);

3.  United States v. Tencer, 107 F.3d 1120 (5th Cir.), cert. denied, 522 U.S. 960 (1997) (Insurance checks that were not tied to fraudulent claims were insufficient proof of mail fraud);

4.  *United States v. Campbell, 64 F.3d 967 (5th Cir. 1995) (Bank officers did not cause a loss to the bank);

5. United States v. Mueller, 168 F.3d 186 (5th Cir. 1999) (Failure to disclose addendum to presentence report);

6.  *United States v. Haltom, 113 F.3d 43 (5th Cir. 1997) (Mail fraud and tax fraud counts should have been grouped);

7.  *United States v. Corona, 108 F.3d 565 (5th Cir. 1997) (Duplicitous sentences were not purely concurrent where each received a separate special assessment);

8.  United States v. Levario-Quiroz, 161 F.3d 903 (5th Cir. 1999) (Offenses outside United States were not relevant conduct)  Consecutive/ Concurrent;

9.  United States v. Armistead, 114 F.3d 504 (5th Cir.), cert. denied, 522 U.S. 922 (1997) (There was an ex post facto application of a guideline provision);

10.  United States v. O’Bryant, 136 F.3d 980 (5th Cir. 1998) (Government has burden of proving more serious form of methamphetamine).

Sentencing – Crack;

11.  United States v. Fowler, 216 F.3d 459 (5th Cir. 2000) (Child porn was distributed under statute, but not for guideline enhancement).

Sentencing – Fraud / Theft;

12.  United States v. Sublett, 124 F.3d 693 (5th Cir. 1997) (Loss during contract fraud did not include legitimate services actually provided);

13.  United States v. Peterson, 101 F.3d 375 (5th Cir.), cert. denied, 520 U.S. 1161 (Violation of fiduciary duty was not necessarily criminal conduct for application of relevant conduct);

14.  *United States v. Cihak, 137 F.3d 252 (5th Cir.), cert. denied, 119 S.Ct. 118 (1998) (Fraud of coconspirators must be foreseeable to defendant to be relevant conduct);

15.  United States v. Schmalzried, 152 F.3d 354 (5th Cir. 1998) (Government failed to connect firearm to drug offense);

16. United States v. Hass, 150 F.3d 443 (5th Cir. 1998) (Non-final state conviction could not be basis for statutory enhancement of drug sentence);

17.  United States v. Reyna-Espinosa, 117 F.3d 826 (5th Cir. 1997) (A prior conviction for being an alien in unlawful possession of a firearm was not an aggravated felony);

18.  *United States v. Aderholt, 87 F.3d 740 (5th Cir. 1996) (Murder guidelines were improperly applied in a mail fraud conspiracy because murder was not an object of the conspiracy);

19.  United States v. Harris, 104 F.3d 1465 (5th Cir.), cert. denied, 522 U.S. 833 (1997) (Actions of accessory after the fact did not justify obstruction enhancement when those same acts supported the substantive offense);

20.  United States v. Wilson, 105 F.3d 219 (5th Cir.), cert. denied, 522 U.S. 847 (1997) (A co-conspirator’s use of a firearm did not bar application of the safety valve);

21.  United States v. Huskey, 137 F.3d 283 (5th Cir. 1998) (Prior convictions in same information were related cases for counting criminal history);

22.  United States v. Arnold, 213 F.3d 894 (5th Cir. 2000) (Sentence of less than a year and a day must be imposed within ten years of offense to count toward criminal history);

23.  United States v. Harrington, 82 F.3d 83 (5th Cir. 1996) (A court should not have upwardly departed for a defendant’s status as an attorney without first considering application of abuse of trust);

24.  United States v. Arce, 118 F.3d 335 (5th Cir. 1997) (Manufacturing firearms was not a basis for upward departure);

25.  United States v. Candelario-Cajero, 134 F.3d 1246 (5th Cir. 1998) (Absent an upward departure, grouped counts cannot receive consecutive sentences);

26.  *United States v. Walters, 87 F.3d 663 (5th Cir.), cert. denied, 519 U.S. 1000 (1996) (A downward departure was approved for a defendant who did not personally benefit from money laundering);

27.  *United States v. Upton, 91 F.3d 677 (5th Cir.), cert. denied, 520 U.S. 1228 (1997) (No restitution was available to victims not named in the indictment);

28.  United States v. Hodges, 110 F.3d 250 (5th Cir. 1997) (1. Fine was not justified for a defendant with a negative net worth; 2.Lack of Specific findings about ability to pay);

29.  United States v. Norris, 217 F.3d 262 (5th Cir. 2000) (Restitution was not for actual loss);

30.  United States v. Myers, 104 F.3d 76 (5th Cir.), cert. denied, 520 U.S. 1218 (1997) (A court could not impose consecutive sentences of supervised release);

31.  Martin v. Maxey, 98 F.3d 844 (5th Cir. 1996) (Failure to file a motion to suppress could be grounds for ineffectiveness claim);

32.  United States v. Russell, 205 F.3d 768 (5th Cir. 2000) (Absence of lawyer due to illness did not waive right to counsel);

33.  United States v. Pollani, 146 F.3d 269 (5th Cir. 1998) (Pro se defendant’s late request for counsel should have been honored);

34.  Blankenship v. Johnson, 118 F.3d 312 (5th Cir. 1997) (When the prosecution seeks discretionary review, the defendant has a right to counsel);

35.  Kyles v. Whitley, 514 U.S. 419 (1995) (Prosecution failed to turn over material and favorable evidence);

36.  United States v. Miller, 146 F.3d 274 (5th Cir. 1998) (Leaving turn signal on violated no law and did not justify stop);

37.  United States v. Dortch, 199 F.3d 193 (5th Cir.), amended, 203 F.3d 883 (2000) (Continued detention after traffic stop was unreasonable);

38.  United States v. Chavis, 48 F.3d 871 (5th Cir. 1995) (The court improperly placed the burden on the defendant to show a warrantless search);

39.  United States v. Rivas, 157 F.3d 364 (5th Cir. 1999) (1. Drilling into trailer was not routine border search; 2. No evidence that drug dog’s reaction was an alert);

40.  United States v. Vega, 221 F.3d 789 (5th Cir. 2000) (The police cannot create exigency for search of leased home);

41.  Bond v. United States, 120 S.Ct. 1462 (2000) (Manipulation of bag found on bus was illegal search);

42.  Flippo v. West Virginia, 528 U.S. 11 (1999) (No crime scene exception to warrant requirement);

43.  Knowles v. Iowa, 525 U.S. 113 (1999) (Speeding ticket does not justify full search of vehicle);

44.  Richards v. Wisconsin, 520 U.S. 385 (1997) (There was no blanket drug exception to the knock and announce requirement).

Statements;

45.  Dickerson v. United States, 120 S.Ct. 2326 (2000) (Miranda warnings are constitutionally based). Recusal;

46.  *Bracy v. Gramley, 520 U.S. 899 (1997) (Petitioner could get discovery of trial judge’s bias against him);

47.  United States v. Jordan, 49 F.3d 152 (5th Cir. 1995) (A judge should have been recused because the defendant made claims against family friend of the judge);

48.  *United States v. Avilez-Reyes, 160 F.3d 258 (5th Cir. 1999) (Judge should have recused himself in case where attorney testified against judge in disciplinary hearing). Indictments;

49.  *United States v. Kimbrough, 69 F.3d 723 (5th Cir.), cert. denied, 517 U.S. 1157 (1996) (Multiple possessions of child pornography should be charged in a single count);

50.  United States v. Nunez, 180 F.3d 227 (5th Cir. 1999) (Indictment failed to charge an offense). Limitation of Actions;

51.  United States v. Manges, 110 F.3d 1162 (5th Cir.), cert.denied, 523 U.S. 1106 (1998) (Conspiracy charge was barred by statute of limitations);

52.  United States v. Cabrales, 524 U.S. 1 (1998) (Venue for money laundering was proper only where offenses were begun, conducted and completed);

53.  Perrillo v. Johnson, 205 F.3d 775 (5th Cir. 2000) (An actual conflict in successive prosecutions of co-defendants).

Competency / Sanity;

54.  Cooper v. Oklahoma, 517 U.S. 348 (1996) (A state could not require a defendant to prove his incompetence by a higher standard than preponderance of evidence);

55.  Swinder & Berlin v. United States, 524 U.S. 399 (1998) (Attorney-client privilege survives client’s death);

56.  Mitchell v. United States, 526 U.S. 314 (1999) (Guilty plea does not waive privilege against self incrimination at sentencing).

Jeopardy / Estoppel;

57.  Rutledge v. United States , 517 U.S. 292 (1996) (A defendant could not be punished for both a conspiracy and a continuing criminal enterprise based upon a single course of conduct);

58.  *United States v. Laday, 56 F.3d 24 (5th Cir. 1995) (The government breached the agreement by failing to give the defendant an opportunity to cooperate);

59.  United States v. Levay, 76 F.3d 671 (5th Cir. 1996) (A defendant could not be enhanced with a prior drug conviction when the government withdrew notice as part of a plea agreement);

60.  United States v. Guerra, 94 F.3d 989 (5th Cir. 1996) (A plea was vacated when the court gave the defendant erroneous advice about enhancements);

61.  United States v. Beckner, 69 F.3d 1290 (5th Cir. 1995) (The defendant established prejudicial pretrial publicity that could not be cured by voir dire);

62.  United States v. Doe, 63 F.3d 121 (2nd Cir. 1995) (The court summarily denied a defendant’s request to close the trial for his safety);

63.  Gray v. Maryland, 523 U.S. 185 (1998) (Bruton prohibited redacted confession, that obviously referred to defendant);

64.  Lilly v. Virginia, 527 U.S. 116 (1999) (Admission of accomplice confession denied confrontation);

65.  *United States v. Cooks, 52 F.3d 101 (5th Cir. 1995) (The court refused to allow government witness to be questioned about jeopardy from same charges);

United States v. Landerman, 109 F.3d 1053 (5th Cir.), modified, 116 F.3d 119 (1997) (The defendant should have been allowed to question a witness about a pending state charge);

67.  United States v. Lowery, 135 F.3d 957 (5th Cir. 1998) (Court erroneously excluded defendant’s evidence that he encouraged witnesses to tell the truth);

68.  United States v. Flores-Chapa, 48 F.3d 156 (5th Cir. 1995) (The prosecutor referred to excluded evidence);

69.  United States v. Johnston, 127 F.3d 380 (5th Cir. 1997) (A prosecutor commented on the defendant’s failure to testify and asked questions highlighting defendant’s silence);

70.  United States v. Dixon, 185 F.3d 393 (5th Cir. 1999) (Court improperly refused instruction on insanity based upon expert testimony);

71.  United States v. Izydore, 167 F.3d 213 (5th Cir. 1999) (No evidence that phone calls crossed state lines for wire fraud interstate nexus). United States v. Causey, 185 F.3d 407 (5th Cir. 1999) (1. No federal nexus shown regarding communication; 2. Recommendations did not support death sentences);

72.  Bailey v. United States, 516 U.S. 137 (1995) (Passive possession of firearm was insufficient to prove “use” of firearm during drug trafficking crime);

73.  Bousley v. United States, 523 U.S. 614 (1998) (Guilty plea did not bar Bailey claim. Claim was not Teague-barred);

74.United States v. Polk, 56 F.3d 613 (5th Cir. 1995) (Use of the defendant’s car and home were insufficient to show participation);

75.  United States v. Ross, 58 F.3d 154 (5th Cir.), cert. denied, 516 U.S. 954 (1995) (The defendant was not a conspirator merely because he sold drugs at same location as conspirators);

76.  United States v. Brito, 136 F.3d 397 (5th Cir. 1998) (Evidence that defendant was asked to find drivers did not prove constructive possession of hidden marijuana);

77.  United States v. Lombardi,138 F.3d 559 (5th Cir. 1998) (Evidence did not support conviction for using juvenile to commit drug offense);

78.  United States v. Paul, 142 F.3d 836 (5th Cir. 1998) (Insufficient evidence of conspiracy to import);

79.  *United States v. Ortega-Reyna, 148 F.3d 540 (5th Cir. 1998) (Insufficient evidence that drugs hidden in borrowed truck were defendant’s);

80.  *United States v. Campbell, 64 F.3d 967 (5th Cir. 1995) (Bank officers did not cause a loss to the bank);

81.  United States v. Schnitzer, 145 F.3d 721 (5th Cir. 1998) (Impermissible theory of fraud justified new trial);

82.  United States v. Hanson, 161 F.3d 896 (5th Cir. 1999) (Factual questions about bank fraud should have been decided by jury);

83.  United States v. Principe, 203 F.3d 849 (5th Cir. 2000) (Possession of counterfeit document should not have been sentenced under trafficking guidelines);

84.  United States v. Willey, 57 F.3d 1374 (5th Cir.), cert. denied, 516 U.S. 1029 (1995) (Transferring money between accounts was insufficient evidence of an intent to conceal);

85.  United States v. Dobbs, 63 F.3d 391 (5th Cir. 1995) (Undisguised money used for family needs was not money laundering);

86.  United States v. Pipkin, 114 F.3d 528 (5th Cir.), cert. denied, 519 U.S. 821 (1996) (The defendant did not knowingly structure a currency transaction);

87.  United States v. Garza, 118 F.3d 278 (5th Cir. 1997) (Money laundering proof was insufficient where defendants neither handled nor disposed of drug proceeds);

88.  United States v. Olaniyi-Oke, 199 F.3d 767 (5th Cir. 1999) (Purchase of computers for personal use was not money laundering).

Aiding and Abetting;

89.  United States v. Beckner, 134 F.3d 714 (5th Cir. 1998) (Lawyer was not shown to have knowledge of client’s fraud for aiding and abetting);

90.  United States v. Stewart, 145 F.3d 273 (5th Cir. 1998) (Insufficient evidence that passenger aided and abetted drug possession);

91.  United States v. Barnett, 197 F.3d 138 (5th Cir. 1999) (Insufficient evidence of conspiring or aiding and abetting murder for hire).

Perjury;

92.  United States v. Gaudin, 515 U.S. 506 (1995) (Materiality is an element of a false statement case);

93.  United States v. Campbell, 64 F.3d 967 (5th Cir. 1995) (The defendant’s misrepresentations to a bank were not material);

94.  United States v. Brown, 72 F.3d 25 (5th Cir. 1995) (A lawyer’s comments on a judge’s trial performance were not reckless);

95.  United States v. Guerrero, 169 F.3d 933 (5th Cir. 1999) (Inconclusive identification did not support bank robbery conviction);

96.  United States v. Fells, 78 F.3d 168 (5th Cir.), cert. denied, 519 U.S. 847 (1996) (A defendant making a statutory challenge, could still qualify for acceptance of responsibility);

97.  United States v. Patino-Cardenas, 85 F.3d 1133 (5th Cir. 1996) (There was no basis to deny credit when the defendant did not falsely deny relevant conduct);


Sources:

(1) Child Protective Services and the Juvenile Justice System, A Guide to Protect the Constitutional Rights of Both Parents and Children, Thomas and Aimee M. Dutkiewicz, President,  Connecticut DCF Watch; http://www.connecticutdcfwatch.com); New England Parent Advocate Network; ctdcfwatch@snet.net; weemom2002@yahoo.com

(2) “Fraud Cites,” Marcel Bendshadler, http://www.familyrightsassociation.com;

(3) American Citizens for the National Constitution, June 2006

(4)  http://www.freedom-school.com/law

(5)  Bloomberg Law at www.casebriefs.com/blog/law/civil-procedure

(6) Leagle.com

(7) “Sir David”

(8) National Paralegal’s College

(9) Bob Hurt of The Lawmen

Disclaimers:

1.  Author of this blog is not a licensed, board-certified, specialized attorney, lawyer, legal practitioner, paralegal, trial advocate, and, therefore, could not possibly be giving “legal” advice.

2.  This post is made in good faith.

3.  This post is intended for general knowledge, educational/academic research purposes and/or entertainment purposes.

4.  These cases have not necessarily been shepardized.  It is very possible they have been overturned at the Circuit/Appellate and/or US Supreme Court level and/or nullified or superseded by more recent and applicable Circuit constitutional case law.    This means that they are, therefore, only useful for general knowledge and/or as stepping-stones that lead to a path of further knowledge, concepts, legal practices, anticipating arguments, as a source of references for other pertinent case law on certain related topics, etc.  Please check any citations for continuing litigation and appellate or higher level US Supreme Court decisions or correlated cases.

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