"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Tuesday, November 10, 2015

The "dumber than us mere mortals public official" defense and what it can do to you

I wrote on this blog about tricks of federal courts to gut the Civil Rights Act and the private right of people whose constitutional rights were violated by the government to sue that government, for declaratory relief (court declaration of rights), injunctive relief (orders to do or not to do something) and money damages.

One of those tricks is the so-called "qualified immunity" defense.

That type of "immunity" from constitutional lawsuits is not part of the Civil Rights Act, it was added-on by the courts, in violation of the courts' Article III restricted power given to federal court by the U.S. Constitution and in usurpation of the Congress's exclusive Article I power to legislate or amend legislation.

The "qualified immunity" defense "works" this way.

  1. There is the U.S. Constitution.
  2. There is the statute enacted by U.S. Congress, 42 U.S.C. 1983, the Civil Rights Act giving you a private right to sue the government if the government violates your constitutional rights.
These two written laws are all that you need to pursue constitutional violations of the government.

Yet, the courts decided differently and introduced a third element.

The U.S. Supreme Court said that a public official will not be held liable for constitutional violations - as the enacted statute requires federal courts to do on finding of a constitutional violation - if "the law was not clearly established" by the time of the alleged constitutional violation of a public official.

In plain English it means this.

The public official took his or her office by pledging to uphold the U.S. Constitution.

But, unless there is a specific court decision ON POINT, applying the very circumstances of what occurred in YOUR case and how YOUR public official violated YOUR constitutional rights, unless there is such an additional court decision - in addition to the U.S. Constitution and the Civil Rights Act - the federal court will refuse to allow your civil rights lawsuit to proceed and will allow public officials to escape without any liability, and leave you and your injury without any remedy.

Moreover, after the dismissal, the court may punish you for even bringing that lawsuit in the first place, awarding against you the legal fees of the perpetrator of the constitutional violation, and thus victimizing you again.

Qualified immunity was not established immediately on enactment of the Civil Rights Act, it was invented by courts on the rise of civil rights litigation to clear its calendar and protect their friends in the state governments from where federal judges usually come.

In Harlow v Fitzgerald, 457 U.S. 800 (1982) the U.S. Supreme Court explained that "qualified immunity is designed to shield government officials from actions "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."

Now, a "reasonable person" in the government, swearing to uphold the U.S. Constitution, must know what that U.S. Constitution means.  And, if a "reasonable person" cannot discern what that U.S. Constitution means, the U.S. Supreme Court's self-given right of "interpretation" of the U.S. Constitution becomes the right of reading a crystal ball and announcing to the rest of us stupid mere mortals what is "hidden" in that U.S. Constitution that we do not know.

The whole concept that a public official who took his or her office swearing to protect the U.S. Constitution needs a "taro reading" of that same U.S. Constitution from a supreme power, a federal court or a state legislature, to be able to understand the contents of the document that the public official is sworn to protect, is contrary to common sense.

Once again, if a "reasonable public official" does not know what the U.S. Constitution means in application to a particular situation, then a court would not know either.

And, if the U.S. Constitution is so hard to understand, then oaths of office promising to protect that U.S. Constitution are meaningless.

Moreover, for everybody else, for us mere mortals who are not public officials, knowledge of the law is PRESUMED, as a matter of law.

And, under the Equal Protection Clause of the 14th Amendment of the U.S. Constitution, the same should be applicable to our glorious public officials who pledge to uphold a mysterious document, a U.S. Constitution which only two groups of crystal ball readers - the state legislatures and federal judges - can understand and interpret for those public officials so that they could be held liable for violating the federal constitution that they pledged to uphold as a condition of taking the public office.

Now, consider what this "clearly established law" defense does upholding of criminal and civil laws.

If a public official, as a creature belonging to an especially dumb class of people, needs to be explained ADDITIONALLY to the U.S. Constitution and the Civil Rights Act punishing for violation of that same U.S. Constitution, what that U.S. Constitution means in application to a particular set of facts, how us mere mortals, including those who are poor and illiterate, understand this country's civil and criminal laws and be held liable for violating them?

Isn't it true then that any criminal defendant or a defendant in a civil lawsuit can say:  "but, Your Honor, the law was not "clearly established" that this particular set of circumstances spell out fraud, and public policy dictates that I remain with my children at home and continue to maintain a job and pay my taxes to maintain public roads instead of being locked up".

You can always find a "public policy" as to why this or that thing needs to be done or not done.

And, federal courts, courts of limited jurisdiction, have no right to establish policies - and especially to amend statutes designed to enforce the U.S. Constitution through liability for its violations.

If all the U.S. population, including illiterate people, are PRESUMED to know and UNDERSTAND the written law, INCLUDING the U.S. Constitution, such a presumption equally applies to public officials, making the "qualified immunity defense" nonsensical.

If a court knows how to read the U.S. Constitution, then there is no basis to state that any member of the public, including the public official sued as a defendant in a civil rights action, would not be able to understand the written law and its meaning - especially when knowledge and understanding of the written law is PRESUMED in this country, for everybody, including that public official.  

So, the "qualified immunity defense" which is, in fact, a "more dumb than the rest of us public official defense", is not only an invalid (and unconstitutional) concept, but a completely illogical concept designed in order to protect the government from liability pursuant to an enacted statute that specifically gave us a private right to get remedies for a violation of our constitutional rights by the government.

Now, the U.S. Supreme Court was at first, let's say, "modest" in application of this "right to be more dumb than the rest of us" "qualified immunity defense".

In 2001, in the case Saucier v Katz, 533 U.S. 194 (2001), the U.S. Supreme Court has created a "test" to analyze the issue of qualified immunity by at least giving a window to theoretically, in the future, for some other future civil rights plaintiffs, not the one in the presently decided lawsuit, to be able to obtain a remedy for the injury like the one asserted in a particular lawsuit.

The 2-prong mandatory test established by the U.S. Supreme Court in analysis of qualified immunity (an unconstitutional concept, remember - so the U.S. Supreme Court is establishing tests for lower courts of how to usurp exclusive congressional power and amend enacted statutes) was like that:

1) first, the court figures out whether there was a constitutional violation or not; and

2) second, the court figures out whether the law was "clearly established" by state statute or federal court order, in other words, whether the crystal ball readers in state legislatures of federal courts explained to public officials through their written wisdom the reading of the U.S. Constitution the public official was sworn to protect without understanding its "real" meaning as applied to a particular situation.

This "test", as unconstitutional as it was (as explained above), still mandated federal courts to at least determine ("clearly establish") whether a constitutional violation took place based on a certain set of circumstances, before analyzing whether qualified immunity applies and whether to allow the victim to remain without a remedy for his or her injury and the government official who DID violate the victim's constitutional right to escape liability.

Of course, there is also yet another constitutional implication here - violation of the 7th Amendment, right to a jury trial.  

What is "reasonable" or "not reasonable" is a mixed question of fact and law to be determined by the jury - yet, judges of federal court are afraid to allow juries to make such decisions because there is a shadow of a possibility that then judges will not be able to help the state defendants, their friends in state government, and then judges will not be able to establish careers for their children, relatives and friends in that government.

Ok, so having usurped the right of the jury to decide what is or is not "reasonable", the courts still "had to", as the U.S. Supreme Court directed, first decide whether there was or there was not a constitutional violation.

Then, after deciding that there was a constitutional violation, the court would decide whether the public officials still will escape liability and the plaintiff's injury will remain without a remedy because of the qualified immunity.  In other words, the courts will look whether, at the time of the now confirmed constitutional violation there was a state statute or a federal court order declaring that if you do A, B and C (the same facts as in your lawsuit), you have violated the U.S. Constitution.

Of course, you understand that the government is not its own enemy and will cut off its own collective hand before creating such statutes.  And of course, you understand that constitutional violations can occur in a variety of ways and it is impossible to have a federal court case fitting each and every fact pattern.

So, the test is slanted in favor of the government from the very beginning.

But, such a "test" still created a problem.

Even though the particular case will be dismissed on qualified immunity grounds, the law was clearly established now when the court followed the 1st prong of the test - for future cases.

So, as soon as the decision dismissing this lawsuit on qualified immunity grounds and establishing the constitutional violation is issued, and if a public official now does the same constitutional violation as the one in the now dismissed case, another lawsuit can be filed by somebody else, on the same fact pattern, and now the law is clearly established and the new lawsuit will have a good chance to be successful.

But - the government could not have that.

And, obviously because of some lobbying with some friends in the state government (I will run a blog shortly as to a special organization designed to do that), the U.S. Supreme Court changed the "2-prong test" from mandatory to simply optional.

That happened in 2009, through the case Pearson v Callahan, 555 U.S. 223 (2009).  

So, now federal courts do not have to determine whether a public official violated your constitutional rights, the court can plow right through to the 2nd prong - whether the law was "clearly established" by the time of the actions of the public official.

This "test" is tricky, though, in even more ways than described above.  If we are not talking about a constitutional violation, the court has no jurisdiction under 42 U.S.C. 1983 to review the case, and jurisdictional issues are threshold issues and MUST be reviewed first.

And, of course, those constitutional issues are mixed issues of law and fact to be reviewed by the jury, with prior discovery.  And prior discovery and a jury trial may reveal something the government would not like to have revealed.

Yet, this "test" exists and is happily applied by federal courts to get rid of civil rights lawsuits on "qualified immunity" grounds.  

So, since courts now do not establish constitutional violations, but simply toss cases on qualified immunity grounds, usually without much explanation, and then certify appeals as "frivolous" if it is an indigent pro se civil rights plaintiff;

since appellate courts rubber stamp such dismissals through summary decisions without reaching the facts, thus precluding proper research of the issues involved, the state government since 2009 got practically a permission from the U.S. Supreme Court to violate people's constitutional rights with a very low chance of being held accountable for it.

We the People established the United States of America in order to establish justice.

Qualified immunity defense establishes INjustice by the government against the citizens, and is thus unconstitutional.

And now about the biggest secret in this whole mess.

Article VI paragraph 2 of the U.S. Constitution includes into the Supreme Law of the land the following:

  1. The Constitution;
  2. The laws of the United States which shall be made in pursuance thereof (and the legislative power is given by Article I of the U.S. Constitution exclusively to the U.S. Congress and not to the courts); and
  3. all the treaties made, or which shall be made, under the authority of the United States.

That is all, ladies and gentlemen.

The U.S. Supreme Court decisions are not part of the Supremacy Clause and are not the Supreme law of the land, even if federal courts always treat them as such.

That makes the "tests" devised by the U.S. Supreme Court in order to toss civil rights lawsuits no more than interpretive opinions that have no mandatory presidential power in constitutional litigation.

Let's continue reminding our courts of the meaning of the Supremacy Clause and of the oath they took to uphold the U.S. Constitution, including that Supremacy Clause, as well as restrictions of Article I (legislative power) and III (judicial power).

I only regret that the wheels of justice do not go very fast, and mentality of judges especially does not change very fast either, so there will be still a lot of victims of constitutional violations by the government before the "public official has a right to be dumber than us mere mortals" test ends up where it belongs - in the garbage.

What we are dealing with now though, is that the government can violated ANY of your constitutional rights now, and if you sue the government, there are more chances that the case against the government will be tossed under a myriad court-invented "defenses" and "tests" than that you will proceed to trial.

The only hope I see in this hopeless situation is that people whose constitutional rights are badly violated by the government will still try to break this court-created wall by continuing to file civil rights lawsuits.  

Enforcement of the U.S. Constitution in this country now depends not on promises of those who pledge to protect it, but on the audacity of despair of victims of constitutional violations by the government.

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