Changing National Gov Symbol

I couldn't resist ..

Father who rebuked CPS loses right to see son

Follow up from yesterdays article --

Another child's death on CPS' watch raises new questions

Today's Story came from Legally Kidnapped's blog over there >>

Thanks LK!

Father who rebuked CPS loses right to see son www.azstarnet.com ®
Visitation canceled after dad and boy talked about story on kid's late brother

By Josh Brodesky
arizona daily star
Tucson, Arizona Published: 07.30.2008

A father whose son was killed while under CPS watch had his visitation with his surviving older son cut off after talking to the boy about a Sunday Arizona Daily Star story on his brother.
Oscar Silva Jr. was notified his regular Tuesday visit with 8-year-old Oscar III was canceled just a few hours before the scheduled get-together. He was told there will be no further visits until at least next week, when there will be a meeting with his Child Protective Services case manager.

He normally has visitation Tuesday and Thursday afternoons and every other weekend.
Agency spokeswoman Liz Barker Alvarez confirmed Silva's visitation rights have been suspended, but she couldn't say specifically why.

"There were certain behaviors on Mr. Silva's part that went against the case plan and the visitation agreements, and those behaviors were seen as potentially harmful to the child," Barker Alvarez said.

Silva said Oscar III saw the Sunday story, which included a picture of his brother, and he asked to read it.

"I went ahead and let him read it. I wanted him to know what was going on," Silva said.
Silva's younger son, Fabian, 4, died in January from blunt-force trauma to the head. His mother's boyfriend, Alejandro Miguel Romero, 25, has been charged with child abuse and manslaughter.



CPS opened a file on Fabian Silva in October after two doctors examining him for a throat infection reported signs of suspected abuse. Oscar Silva and other family members have criticized the CPS investigation, saying they were never interviewed despite repeated requests to be heard.

Silva said his case manager told him Tuesday that he had violated a verbal agreement with CPS not to talk about the case with Oscar III, and therefore his visitation rights were being suspended. Oscar III now lives with great-grandparents on the mother's side, Silva said.
Barker Alvarez would not say if the unacceptable behaviors involved reading the news story and/or talking about it.

"We do have a child here, who has to deal with a lot. I am giving you as much information as I can," she said. "The decision was made in the child's best interest."

Silva said he felt the move was in retaliation for both the Sunday news story and a $5 million claim he filed against CPS last week.

He acknowledged that under the verbal agreement, he is supposed to contact CPS if his son asks about the case and his brother's death.

"On this Sunday, I didn't ask," he said. "I didn't call no one. I just let him read the article. It was a verbal agreement."

Attorney Jorge Franco Jr., who is representing Silva, called the suspension "off the charts."
"It happens literally two days after the article appears," he said. "That can't be a co- incidence. It has to be tied to the article."

"It's the ultimate in retaliation," he said. "If they are suspending his visitation because the child read the article and then had a conversation with the father about the article, and nothing more, that's outrageous and appalling."

Contact reporter Josh Brodesky at 807-7789 or jbrodesky@azstarnet.com.

Original Article- Father who rebuked CPS loses right to see son www.azstarnet.com ®

My two cents..

From working with many families who have had their children "removed" or lost visitation.. I can say .. THIS IS TYPICAL of CPS ..

The public needs to be outraged and they need to begin to see the abuses of our system and how it's effecting the future of America... OUR CHILDREN!

People ... OPEN YOUR EYES.. The Child Protection busniess and some/all/most of our Family courts are NOT DOING WHAT IS IN THE BEST INTEREST OF THE CHILDREN.. in fact THEY ARE COLECTIVELY DESTROYING OUR CHILDREN'S LIVES! While getting outrageous federal funding incentives via YOUR TAX DOLLARS.. to do it!

Deadbeat dad wanted to kill judge, says prosecutor

BY BRIAN HARMON DAILY NEWS LONG ISLAND BUREAU CHIEF

Tuesday, July 29th 2008, 7:24 PM

A jailed deadbeat dad bragged to other prisoners that he would kill the judge "who gave his house away" to his ex-wife, the Suffolk district attorney said Tuesday.

Brian Orkiszewski, 49, told an inmate at the county's minimum security jail in Yaphank that the Family Court judge "will have a big surprise when I knock on his door," DA Thomas Spota said.
Orkiszewski was upset the judge awarded the $300,000 made from the sale of his East Northport home to his former spouse, Lynda, prosecutors said.

"He made no bones about it. He was shopping for a handgun to murder the judge," Spota said. "There is no doubt in my mind that this man was serious about what he intended to do."

Defense attorney Anthony Grandinette called Orkiszewski's comments jailhouse ranting by a frustrated man down on his luck.

"He's frustrated. He's angry. He's depressed. He said some stupid statements off the cuff," Grandinette said of his client, a former Verizon employee. "However, there was no intent of carrying out those words that he spoke in frustration."

Spota said detectives intercepted a note Orkiszewski sent to another inmate asking for help in purchasing a handgun.

"He wrote that after his release from Yaphank, he needed to shop right away at 'the hardware store,' which are the code words he used for gun supplier," Spota said. In another letter, Orkiszewski "asked for the telephone number of the person from whom he could obtain 'a good plunger,' a code word for a gun," Spota added.

Authorities would not release the name of the Family Court judge Orkiszewski allegedly wanted to kill, but Spota said it was not the judge who sent Orkiszewski to jail three months ago for failing to pay child support.

Suffolk Judge William Kent presided over the Orkiszewskis' divorce, though authorities would not confirm he was the target of Brian Orkiszewski's rage.

Orkiszewski was divorced three years ago. More than a year ago, he fell down a fire escape while working for Verizon, fracturing three vertebrae and rupturing two spinal disks, Grandinette said. The injuries left him unable to work and pay child support, the lawyer said.

Appearing haggard and notably uncomfortable, Orkiszewski ambled into Suffolk County Judge Robert Doyle's courtroom yesterday to plead not guilty to grand jury charges of conspiracy and criminal solicitation. Doyle ordered him held in jail on $250,000 cash bail.

bharmon@nydailynews.com

Original Article- Deadbeat dad wanted to kill judge, says prosecutor

My three cents..

FIRST THO...

Before anyone wants to start rumors..

I WILL SAY .. I DO NOT CONDONE what this man did.. said.. or didn't do or didn't say..

HOWEVER..

I will say .. until you have walked in his shoes.. until you have been abused by a Family Court Judge.. don't make judgement calls..

I will say .. I have been abused by our justice system beyond what the average person would be able to tolerate.. and although I've never said I wanted to kill anyone.. I have wished horrible bus accidents or Bear/Shark attacks.. or being struck by lightening for those that knowingly abuse Innocent parents and children.

But .. again the difference is.. I pray when these horrible acts of God happen to those that caused the emotional trauma of me and my family (others and their families) .. I pray they LIVE very long miserable lives after the fact... I pray they live .. crippled.. in pain.. and vulnerable to others.. perhaps then they will then understand what they viciously put innocent parents through.

DOJ wins fraud case against National Council of Juvenile and Family Court Judges

I found this blog this morning and thought it was worth passing along..

DOJ wins fraud case against National Council of Juvenile and Family Court Judges

Thurston County Family Court Reporter

In part it says..

In April, the National Council of Juvenile and Family Court Judges (“NCJFCJ”) agreed to pay $300,000 to the Department of Justice (“DOJ”) in full settlement of allegations that had been raised about how NCJFCJ recorded staff time on federally funded projects, and allegations about possible conflicts of interest.

For more click the links above...

N.J. Legislator Resigns Amid Child Porn Probe

NEW YORK -- Veteran Democratic New Jersey Assemblyman Neil Cohen has resigned amid an investigation into alleged possession of child pornography on his legislative office computer.

In a brief resignation letter to the Clerk of the General Assembly Monday, Cohen said his resignation is effective immediately.

News 4 New York reported Friday that the seven-term assemblyman has been hospitalized under psychiatric observation Thursday night, after investigators seized computers from his office on Stuyvesant Avenue in Union.

It was two fellow democrats who essentially turned in Cohen.

Sources told WNBC.com’s Brian Thompson that no decision was made as of Thursday night as to whether the 57-year-old legislator will face state or federal prosecution.

The investigation began after state Attorney General Anne Milgram received a tip, sources said. Her office seized the assemblyman’s Union Township computers Wednesday as part of the investigation, sources said. At least one of the computers was assigned to him as part of his work in the legislature.

The two confirmed Thursday to News 4 New York: “As the facts became apparent in our office, we notified the appropriate agency and will continue to assist in any way possible,” they said in a joint statement. “While it was our proactive steps that led the investigation to this point, we are appalled at what has transpired.”

They added that both have known Cohen for more than two decades.

“We know him as a compassionate caring individual, but if the allegations prove true, clearly there was a side to him neither of us knew,” they said in the statement.
Cohen served in the Assembly from 1990 to 1991 and from 1994 to present. He is currently a deputy speaker.

In 2001, Cohen sponsored a bill creating a computer hotline to report child pornography and other Internet crimes.

Cohen also has been a leading backer of state stem cell research efforts.
The outspoken liberal Roselle resident shares an office with State Senator Raymond Lesniak and Assemblyman Joseph Cryan.

Original Article -

N.J. Legislator Resigns Amid Child Porn Probe - Politics News Story - WNBC New York

Rape suspect caught on security camera attacking teen boy on street

BY KAMELIA ANGELOVA and ALISON GENDAR

DAILY NEWS WRITERS

Sunday, July 27th 2008, 1:04 PM

Reham Ali in police custody after a surveillance camera apparently caught him attacking a teenage boy.

Brooklyn narcotics cops investigating suspicious activity seen on a security camera made a disturbing discovery Saturday: a senior citizen sexually assaulting a mentally retarded teenage boy.

Reham Ali, 65, was arrested for a sex crime after two city narcotics cops caught him holding down and sodomizing the 16-year-old between two parked cars in Sunset Park, Brooklyn, just before 7 a.m. Saturday.

A 24-hour security camera near Seventh Ave. and 64th St. showed Ali seemingly hiding something there, and two detectives went to investigate.

"The suspect had no idea that the camera was there, but it was a quiet block that time of the morning and he made no real effort to hide what he was doing," a police source said.

"He grabbed the kid and right there on the street, between the parked cars, attacked the kid."

The teen told police he had been on his way to meet a friend for a game of basketball at a nearby park when Ali walked up and propositioned him.

The teen, who attends a special education school, was scared and flustered. He walked faster, trying to get away from the creepy old man, sources said.

Ali, a married man with four grown children, followed the teen for at least two blocks, whispering what he wanted to do to the boy, another source said.

Ali then bear-hugged the boy and pulled him between two parked cars on a deserted stretch of Seventh Ave.

"The poor kid didn't know what to do," another police source said. He was taken to a nearby hospital for treatment.

Ali was charged with a first-degree criminal sex act, unlawful imprisonment and endangering the welfare of a child.

After he was busted, the retired construction worker confided to cops that "I did this before. I did it at home," in Pakistan, sources said.

Ali's wife was stunned by his arrest. Ali had told his family he was having an asthma attack and that he needed some fresh air, said one of his two daughters, Faria Ali, 26.

"This morning he said, 'I'm suffocating here. I'm going for a walk.' He's a good dad. He never did anything like this. He never bothered anybody," she said.

Original Article -

Rape suspect caught on security camera attacking teen boy on street

agendar@nydailynews.com

My two cents...

This degenerate was caught on camera.. forget jail.. forget sentencing .. forget trial.. CASTRATE THE BASTARD!

Children are dying from ADHD Drugs

Info for Parents who are pressured to diagnose and drug their children for ADD or ADHD. Story behind our Sons death caused from ADHD drug, Ritalin.

Between 1990 and 2000 there were 186 deaths from methylphenidate reported to the FDA MedWatch program, a voluntary reporting scheme, the numbers of which represent no more than 10 to 20% of the actual incidence.


This looks like an older article but worth sharing..

Death from Ritalin the Truth Behind ADHD

Another child's death on CPS' watch raises new questions

Long before 4-year-old Fabian Silva died, his older brother sent a letter to Child Protective Services saying he was scared of Alejandro Romero, his mother's boyfriend, who is now charged with killing Fabian.

But a CPS caseworker told police she thought Oscar Silva had been coerced to write the letter by his non-custodial father, and left the boys in the home even though two doctors had also reported signs of abuse and the boys' mother told her Romero smoked marijuana daily.

Alejandro Miguel Romero, 25, who had been found guilty of drug-paraphernalia possession and had been arrested on a previous domestic-violence complaint and a disorderly conduct complaint, was indicted last month on charges of child abuse and manslaughter in connection with Fabian's death Jan. 27 from a blunt-force trauma to the head.

Documents obtained by the Arizona Daily Star don't say whether CPS did a criminal background check on Romero after opening its investigation in October, in response to doctors' concerns about severe bruises to Fabian's groin and penis and elsewhere on his body that appeared to be from abuse.

CPS has refused to release Silva's case file, saying a new state law making such files public record will not take effect until September. Agency spokeswoman Liz Barker Alvarez would not comment, citing the pending litigation.

But a combination of police, medical and autopsy reports raise questions about the agency's handling of another case in which a child under its watch died.

Although Fabian's father and one set of grandparents contacted CPS in the fall, months before Fabian died, there is no evidence investigator Kathryn Kolton formally interviewed them.

It's also unclear if Kolton interviewed an aunt who was living in the home at the time, even though CPS investigators are required to interview all adults in the home. The aunt would later tell police she had concerns about Romero's drug use and how he treated Fabian.

Early warnings

In the days before Halloween 2007 Fabian had been throwing up and battling a headache that kept getting worse. Worried about his health, Fabian's mother, Marina Baker, took the boy to Tucson Medical Center.

Doctors there were concerned about large purplish bruises on Fabian's forehead and around his penis. Baker told doctors that Fabian had recently fallen several times while walking up the stairs, hitting his head. The bruising around his penis and other areas, she said, probably came from fighting with his older brother, but she wasn't sure.

A CT scan would show a brain hemorrhage, which made Dr. James Splain skeptical.
"The story of trauma is not completely inconsistent with the explanation, although the mechanism seems unlikely to have resulted in a bleed," he wrote in his report. "Combined with his other skin injuries, however, especially the bruise on his penis, I have some suspicion of abuse."

Similarly, Dr. Brian Hagerty, wrote in his report, "The pattern of bruising does concern me for non-accidental injuries."

Fabian stayed under medical care for several days. On the first night a CPS investigator went to the hospital to interview Baker, who talked about how the boy had fallen down the stairs, domestic problems she had with his father and her concerns about her older son being too rough with him.

She also said Romero, who often watched the children alone, smoked marijuana every day because "it helps him get motivated to work," documents show.

Fabian's father, Oscar Silva Jr., and grandmother, Marina Rodriguez, suspected abuse, police reports show. Baker insisted there was none.

In the following days, both the father and the grandmother asked to be interviewed by Kolton. It's unclear if any formal interviews happened, although records show Kolton spoke briefly to Rodriguez over the phone.

Fabian's father also had his oldest son, also named Oscar, write a note to document any abuse.
The boy was 8, and he wrote, "Alex's hites Fabian on the but because Fabian pees. Spanks Fabian because he is bad. Spanks me. spanks me because his kids blame it on me. Me and Fabian get spank all most every day. He hearts my filling. I am righting to my dad. I don't like Alex because I am scared of him."

In an interview with police in February, Kolton said when she interviewed Fabian's older brother, he said none of the claims in the note were true, according to police reports.

"They pretty much disregarded that letter. They didn't take it seriously. It's very frustrating," said Oscar Silva Jr., who recently filed a $5 million claim against the state and CPS.

"There was no forensic interview that I know of," said Jorge Franco Jr., the attorney handling the claim. The police reports don't indicate where the older boy was interviewed or who was present.

"It really is a failure at the individual level. There is always other information out there that's available for (the investigators) to get, and they just don't do it for whatever reason."

Kolton closed the case, saying the reports of abuse were unsubstantiated. Her reasoning, she later told police, was neither Fabian nor his older brother mentioned any abuse, nor did Romero or Baker. She said from talking to the boys she thought the bruising came from a wrestling game.

Franco said that if Kolton had interviewed Fabian's grandparents and father, she would have gotten a different picture. He said young Oscar told his grandparents, "Alex directed and encouraged his own sons to beat up Fabian to 'toughen him' because he was a 'crybaby.' "

Fabian's death

On Jan. 26, Romero drove Baker, with the two boys, from their apartment near West Speedway and North Silverbell Road to the Midtown hair salon where she worked. Then, police reports say, he dropped off Oscar III at SS. Peter and Paul Church, 1436 N. Campbell Ave., for catechism class.

He and Fabian went to the bank and then home, where they played video games.
After about 20 or 25 minutes, though, Romero told police Fabian defecated in his pants. He said he ordered the boy to go upstairs to take a shower, while he went outside to put Christmas lights in a shed.

When Romero came back in Fabian was lying on the floor at the bottom of the stairs. The boy was wearing the same soiled clothes. Even though the boy was unconscious and unresponsive, Romero told police he did not think to call 911 because he "panicked and did not know what to do," the report says.

"He said all that was going through his mind at the time was that Oscar was going to be 'stranded on the side of the road' if he did not pick him up."

Romero told police he put Fabian in the car seat and drove to church, assuming Fabian was asleep because he was "snoring."

It was only after picking up the older brother, Romero said, that Fabian stopped breathing, and he then rushed the boy to University Medical Center, across the street from the church.
Although the hospital staff resuscitated the boy, he died the next day. Doctors estimated Fabian hadn't been breathing for 20 minutes when he arrived at the hospital.

Romero, who is free on bail, would not comment.

CPS records

CPS has also refused to provide Fabian's family with case reports.

For Marina Rodriguez, Fabian's grandmother, the lack of information has made a difficult time that much harder. The case has split apart the family and she feels as if she has been left in the dark.

"I want the proof that they didn't document anything," she said. "It wasn't documented properly. It wasn't followed up properly. What did they do? What did they say when they left the hospital? I want to see the documentation."

The family has been raising funds for a memorial bench, she said, but months after the death, there is no peace.

"Time is not healing anything," she said. "Time is not healing any feelings or emotions, and the loss of Fabian, it's like it was yesterday."

Contact reporter Josh Brodesky at 807-7789 or jbrodesky@azstarnet.com.

Original Article-

Another child's death on CPS' watch raises new questions www.azstarnet.com ®

Restraining orders can be straitjackets on justice

Monday, July 28, 2008

BY MIKE McCORMICK AND GLENN SACKS

Women's advocates in New Jersey fear that a Superior Court judge's ruling in Hudson County will make it harder for women throughout the state to get restraining orders against their male partners.

Certainly abused women need protection and support, but there are many troubling aspects of the Domestic Violence Prevention Act's restraining order provisions that merit judicial or legislative redress

Under the law, it is very easy for a woman to allege domestic violence and get a restraining order (aka "protection order"). New Jersey issues 30,000 restraining orders annually, and men are targeted in four-fifths of them. The standard is "preponderance of the evidence" (often 51 percent to 49 percent), and judges almost always side with the accusing plaintiff.

Under the law, the accuser need not even claim abuse. Alleged ver bal threats of violence are suffi cient, even though it's almost impossible for the accused to provide substantive contradictory evi dence.

The restraining order boots the man out of his own home and generally prohibits him from contact ing his children. Men are cut off from their possessions and property, and some end up in homeless shelters. Yet most have never had a chance to defend themselves in court.

In recognition of the gravity of these orders, the Hudson County judge, Francis Schultz, found the standard of proof unconstitutional and required the stricter "clear and convincing evidence" standard in the case before him. His ruling was not binding on other judges but will likely be appealed, which could lead to a decision with a broader impact.

A large body of evidence shows that restraining orders are frequently misused. For example,the Family Law News, the official publication of the California Bar Association's family law sec tion, recently said:

"Protective orders are increasingly being used in family law cases to help one side jockey for an advantage in child custody ... (they are) almost routinely issued by the court in family law proceedings even when there is relatively meager evidence and usually without notice to the restrained person. ... it is troubling that they appear to be sought more and more frequently for retaliation and litigation purposes."

An article in the November 2007 issue of the Illinois Bar Journal said: "If a parent is willing to abuse the system, it is unlikely the trial court could discover (his or her) improper motives in an order of protection hearing."

These orders have become so commonplace that the Illinois Bar Journal called them "part of the gamesmanship of divorce."

Newark family law attorney Bruce Pitman says, "Anybody who practices family law sees people who abuse the restraining order process. Some create false allegations or take minor or insignificant acts and use them to remove their spouse or partner from the home for advantage in litigation. Such abuses undermine victims of real abuse and violence who seek protection."

Opponents of the ruling point to the relatively rare instances in which men have killed their female partners as evidence for why the law should stand. While these cases are heart-wrenching, they do not constitute a viable argu ment against the ruling. For one, the ruling does not eliminate restraining orders but merely re quires a proper evidence standard for their issuance.

Moreover, it is highly questionable whether restraining orders protect abused women. A violent spouse intent on killing his ex is not going to be deterred from doing so out of fear of violat ing a restraining order. In many domestic violence killings, a restraining order was already in place. In general, a restraining order is enforceable only against a law-abiding, nonviolent man.

Jane Hanson, executive direc tor of Partners for Women and Justice in Montclair, argues that Schultz is wrong in ruling that the Domestic Violence Prevention Act violates parents' "fundamental" right to "be with or maintain their relationship with their children." Yet when a restraining order is issued, fathers can be (and sometimes are) ar rested for calling their children on the phone or going to their Little League games.

Moreover, by removing the father from the home, a custody precedent is set with mom as primary caregiver and dad as occasional visitor -- a precedent that harms fathers' ability to gain joint custody of their children in di vorce proceedings.

Wood calls the law on restraining orders "an efficient system." We disagree. Yes, the system is efficient in separating men from their children and their homes. However, it is hardly efficient in delivering justice.

Mike McCormick is the executive director of the American Coalition for Fathers and Children. Glenn Sacks writes frequently about issues affecting men and fathers.

Link to Original Article --- Restraining orders can be straitjackets on justice - NJ.com

OBAMA'S SECRET RESCUE MISSION

OBAMA'S SECRET RESCUE MISSION

SEEKS TO FREE US MOM'S KIDS FROM PALESTINIAN 'CAPTIVITY'

By GINGER ADAMS OTIS

Barack Obama carried out a secret assignment during his global tour last week. While talking about the Middle East peace process in the West Bank Wednesday, the presumptive Democratic nominee slipped a note to Palestinian Prime Minister Salam...full story

Obama gets it!! I've said from day one-- he's our man-- he's a family man and that's what we need!

He's interviened in a child kidnapping.. I've written to let him know what's going on right here under his nose with the Country he wants to lead..sending him details of how my children were [il]legally kidnapped by my estranged husbands apparent political connections... have you?

REFRESH - Go to Home-Page

Some legal stuff I found interesting

I was reading my legal folder today .. and came across this link Model Civil Jury Charges so as I was deciding if it needed to go (I was cleaning out my folders) or stay ..

I opened it and started to read some of the links within that link..

Man O man.. does this one stay!

Ok so why would you care which links I keep in my legal file and which ones I delete?

Because .. I only share stuff that YOU can use also.. DUH!

For those of us that have overturned the false CPS cases .. we usually don't know which way to turn next ..

check out --

3.13--- Malicious Prosecution-- interesting read


3.30D --- Abuse of Process-- another interesting read!!


3.30E--- Fraud kept my attention for a while also


3.30F--What constitutes -- Intentional Infliction Of Emotional Distress--- is always good to know


Although this link is for New Jersey.. I'm sure you can get a general idea of what you need and then apply it to a search for the same in your State..

There's so much in that link I can't begin to post em all.. everything from..

CHAPTER ONE - GENERAL INSTRUCTIONS

Instructions To Jurors Before Voir Dire

to ...

Motor Vehicle--- 7.12---Duty Of Passenger In Automobile

Including but not limited to ...

Attorney Negligence

Medical Negligence

Products Liability

Common Law Employment Claims

and MUCH MORE..

Happy searching...

An interesting article on Gag Orders and Domestic Violence survivors

This story is from 2006...

However I'm posting it today for the "UNNAMED" Richmond County IDV judge.. And for the "UNNAMED" penguine co counsel.. and of course for Mr. Wonderful (tongue in cheek) my estranged husband to see...

Do they think I'm a flippin idiot?

Custody case raises energy, awareness

By EMILY PREVITI, epreviti@nwnewsgroup.com

WAUKEGAN - A group of about 10 women waved documents and talked to reporters outside of a courtroom of the Lake County 19th Judicial Circuit Court.

Little of interest had happened in their case; it will continue on Oct. 4.

Yet the women exuded energy as they chatted.

Annette Zender stood watchfully on the periphery of the group.

Zender, of Woodstock, attended court on Sept. 20 to continue to appeal a 2001 custody decision that gave her ex-partner Thomas Boettcher, of Silver Bay, Minn., custody of their child. The couple lived in Lake County at the time.

That day, Associate Judge Jorge Ortiz ordered Zender to pay fees to her child's guardian ad litem, Gary Schlesinger, a Libertyville attorney who has practiced family law for 20 years.

The Illinois Marriage and Dissolution of Marriage Act defines a guardian ad litem as a person, whom the court appoints to make recommendations to the court in the best interests of the child. Those recommendations come only after he or she has interviewed "the child and all parties."

Though Zender and Boettcher did not marry, provisions under acts that govern paternity and adoption extend certain provisions of the Marriage Act regardless of a parent's marital status or biological relationship to the child.

The women who gathered outside of the courtroom belong to the Illinois Coalition for Family Court Reform (ICFCR), which Zender spearheads. The coalition alleges corruption in, and maltreatment by,(Sound familiar to my case?) Cook, DuPage, Kane and Lake Counties' family courts in their dealings with divorce disputes and custody cases. Zender has said she has more than 200 women whose cases illustrate these claims.

On Aug. 30, Judge Joseph Waldeck issued a gag order in Zender's case, which has received extensive coverage by Chicago-area media because of Zender's activities with the coalition. (Again do you see the similarities to my case)

The order prohibits all parties in the case from speaking to the media regarding the case.
(OK... Here is a difference from my case--I'm only banned from naming names--to protect the corruption-- the abuse and blatent disreguard of the law ---being used against numerous domestic violence survivors by Judges including an IDV judge-- or the innocent.. you decide)

Schlesinger, a member of the Illinois State Bar Association, said he had sought the order to protect the child. (Once again notice the similarities in my and this case)

Zender claims the order violates her rights to free speech under the First Amendment. She contends the order intends to prevent putting Lake County's family courts under the microscope.

Larry Schlam, professor of law at Northern Illinois University School of Law, has published several articles on child custody. Schlam contributes to a guide to which Illinois family court judges refer for guidance in some instances. He declined to give the name of the publication, saying that it is not available for public view.

"Trial judges have substantial leeway," he said of the balancing act between a custody case's parties' rights to free speech and the protection of the child.

State law, he expained, provides for the court's prevention of parties from disclosure of a minor's identity. This is not unconstitutional, so long as the identity has not already been disclosed elsewhere, he said.

Zender has published the child's name on the Internet; however, "For Someone Special," a section on the coalition's Web site where Zender had posted messages to her child, whom she has not seen in five years, now reads, "By court order we are no longer able to post personal messages. We hope you understand."

Schlesinger pointed out that, in addition to Internet publishing, the public could determine the child's identity through parents' names.

Once disclosure of the child's name has occured, Schlam said, it cannot be restrained. However, the gag order would hope to diminish further damage to the child, he said.

Schlam said a gag order should be based upon evidence that the child's need for privacy and on evidence that the child would suffer emotional trauma.

"It's common sense," he said. "The kid has a future ... Maybe in 10 years, as a teenager, you might not want people to know what your parents did."

But New Orleans attorney Richard Ducote said the gag order violates Consitutional rights. His child advocacy work spans decades and continents. New Zealand adopted legislation based upon legislation he drafted in 1992.

"[A gag order is] only appropriate in legal proceedings ... to prevent [the] jury from being tainted," he said.

Ducote explained that when judges issue gag orders in custody disputes that lack juries, they do so to "protect the judge and abusers from exposure and accountability."

New York attorney Barry Goldstein, who represents battered mothers, agreed.

"It’s a First Amendment issue," Goldstein said. "Just as the court in New York couldn’t legally do that, nor can Illinois.”

Goldstein said exceptions could be made, but only in “very specific instances [that involve] graphic sexual abuse of child."

Zender has accused her ex-partner of domestic abuse. In July, a former nanny who said she worked for him in April and June contacted Zender with horror stories about his behavior toward her, the child and others.

"If the child is being cared for properly and ... being protected, then no one would need to make comments to the media," Ducote said. "The guardian ad litem [and the] court might not want criticism [or] ... scrutiny."

Ducote said such orders happen often and are rarely appealed or overturned, which Goldstein attributed to parties' fear that antagonizing the judge could compromise their chances to retain or gain custody of their children.

"They have lives of children in their hands," Goldstein said. "Annette has nothing more to lose in terms of antagonizing the judge."

Goldstein met Zender through the Battered Mother's Custody Conference, which will host its fourth summit in January 2007.

Goldstein said he has witnessed decisions based on inaccurate information and the advice of unqualified experts.

"I believe that most cases are not about corruption," he said. "[But] once the court makes a mistake in a domestic violence case, it's not willing to correct it."

Ducote also attributed judicial deficiencies to legal and mental health professionals' misinformation and lack of training, rather than corruption.

Yet he said that gag orders typically stem from a desire to obscure judicial proceedings.

"When courts operate without scrutiny and when fundamental rights are taken away in violation of constitution, it aids - in these family court cases, I have found it to aid abusers getting custody," Ducote said.

"I have just seen too many problems in the court system and abusers getting custody, and accountability of the highest value has to be embraced here."

Link to original Article - Weekly Journals - Custody case raises energy, awareness

Another link ..Great First Amendment web site ..firstamendmentcenter.org: About

Don't miss this article .. Gag Orders

Where in part it states..

A split among circuits

Over time, a split has arisen among federal appeals courts on the standard for evaluating a gag order on trial participants. The Second, Fourth, Fifth and Tenth Circuits have held that a trial court may gag participants if it determines that comments present a "reasonable likelihood" or "substantial likelihood" of prejudicing a fair trial. (In re Dow Jones & Co.; In re Russell; U.S. v. Brown; U.S. v. Tijerina)

Some states have followed the same rule. (Sioux Falls Argus Leader v. Miller; State ex rel. Missoulian v. Montana Twenty-First Jud. Dist. Ct.)

However, the Third, Sixth, Seventh and Ninth Circuits have imposed a stricter standard, rejecting gag orders on trial participants unless there is a "clear and present danger" or "serious and imminent threat" of prejudicing a fair trial. (Bailey v. Systems Innovation, Inc.; U.S. v. Ford; Chicago Council of Lawyers v. Bauer; Levine v. U.S. Dist. Ct.)

Hawaii and New York have followed this standard as well. (Breiner v. Takao; People v. Fioretti)

Yet another interesting story of a custody case... a book exposing corruption... and a gag order.. FOXNews.com - Court Order May Violate First Amendment - Opinion

ABC Does Piece on Child Support Enforcement's Harassment of Soldier in Iraq

July 26th, 2008 by Glenn Sacks

ABC in Chicago just did a piece about Army Sergeant Joshua Hinkle, who is battling the state of Illinois over child support while he is stationed in Iraq. I helped one of the ABC producers with the story, and I think they did a good job in explaining Hinkle's side.

Like most so-called "deadbeat dads," Hinkle hasn't been perfect, but he hasn't been bad either. He had a child when he was in high school, and it took him a little while to begin paying child support. He also had problems paying child support during periods of unstable employment.

On the other hand, he has paid a considerable amount of child support and made an honest effort to eliminate his arrearages. It's real hard to see how it benefits his children to have Illinois Division of Child Support harassing him like this. It's also hard to see how it's fair to him.

From Fighting for his country fighting against Illinois (7/23/08):

It is a story of fractured families, empty bank accounts and missing money.

When the I-Team received an email from Army Sergeant Joshua Hinkle a few weeks ago, it first caught our attention because it was sent from Camp Bucca in Iraq.

The soldier wrote that he was suffering a great injustice: the state of illinois, he claimed, had cleaned out his entire bank account for child support.

More here ... GlennSacks.com » Blog Archive » ABC Does Piece on Child Support Enforcement's Harassment of Soldier in Iraq

A collective thank you to Glenn for working on this story...

And for Lizzianthus007 for bringing the original Story to my attention..

Parent's Day

Watch CNN's and other media tickers today.

I bet they have something to say about Parents Day today and tomorrow.

15 Thousand Special Parent's Day Messages Sent Out Today, maybe you can cut and paste and send the below to who you know too!

Lary Hollandhttp://www.dcfestival2008.com

Where does your state place in Getting Involved?

Everyone has heard of Mother's Day and Father's Day, but few actually knew there was a collective federal holiday referred to as "Parent's Day" coming up this Sunday until YOU let them know. Be sure to announce it to everyone and we appreciate you taking time out of your day to help make parents important once again. Please publish pertinent information from this message accordingly.

By operation of federal law (US Code, Title 36, Section 135), the fourth Sunday in July is officially known as Parents Day, and every level of local, state and federal government is directed by this law to officially recognize the importance of parents in the lives of children "through proclamations, activities, and educational efforts" - i.e., for once, government HAS to agree with us, and also put it in fancy writing for us, and do something "educational" about it, just for the asking... You can also see the same law here and here and here.

One mayor practically declared war on behalf of parents against government intrusion in this Proclamation that was issued compliments of the United Civil Rights Council of America.
http://unitedcivilrights.org/members/ParentsDay/Proclamations/UT-SandyCity-Mayor.pdf

So as you are enjoying this weekend, know that it is up to you, the press, our churches, our families to remind everyone that government should respect and PROTECT parental rights to be just that...parents.

If you see a mother or a father, remind them that July 27, 2008 is in honor of them and encourage parents to work together on behalf of raising the next significant generation of children that will lead this great nation.

If nothing else, make mention of the National Civil Rights event for parents coming up this August 15 & 16 in honor of all those great parents out there. Many Legislators, Candidates, and Organizations are all in support of parenthood, so spread the word about tomorrow being such an important day. Check out the site as well to see information regarding several Constitutional Amendments being proposed and more.

Where we have a government that thinks it has the apparent authority to confiscate children at will, as we can see from the recent issues in Texas earlier this year, something needs to be done.

Sincerely,Lary Holland

"WRITE TO PARENT"

5119 Highland Rd. #229

Waterford, MI 48327

Additional Inquiries: 800-883-9619

http://www.dcfestival2008.com

'Social workers ripped our family apart for 10 years'

I am borrowing this from LK over there >>

I am publishing the entire article so that if my children follow this blog they will know.. that I will NEVER stop fighting for them.. we will be together again... no matter who has to pay for what they did to me and my 5 babies.. those guilty will pay..God don't like ugly!

Published Date: 26 July 2008

By Tanya Thompson

Social Affairs Correspondent

A GIRL who was taken into care because her mother was accused of child abuse has been reunited with her family after a ten-year ordeal.

The 16-year-old, snatched by social services at the age of six with her younger sister, returned home insisting her mother is innocent and the victim of a miscarriage of justice.

Her mother was accused of having Munchausen syndrome by proxy (MSBADVERTISEMENTP). Now widely discredited, it is said to be a psychological disorder which leads parents to induce or fabricate illness in their children.

Social services in Dumfries and Galloway refused to return the girls for a decade, insisting they were at risk. Seven years ago, they were put up for adoption and the youngest sister is still with her adoptive parents.

When the older daughter turned 16 earlier this year, she was no longer under the jurisdiction of the courts and chose to return home to her mother.

"I can remember when they took us away, but I didn't understand what was happening," said the teenager. "I was only six. I just remember sobbing.

"I would never want to see this happen to anyone else."

The mother, who cannot be named for legal reasons, always denied harming the children. She says she will fight on to clear her name and is considering legal action.

She claims that her youngest daughter suffered from seizures and other health problems, and that friends and family knew this.

However, after numerous visits to her GP and hospital referrals, social services became suspicious and the woman was accused of having MSBP.

Although it is claimed there were never any physical signs of abuse, the children were taken into care in March 1998.

"I have done nothing wrong and yet my children were taken away from me," the mother said. "I didn't see my daughters for eight years but I never gave up fighting.

"My girls have been deprived of their childhood. That's something they can never get back."

Last night Eric Scott, the family lawyer, said: "I think there was a miscarriage of justice in this case. This requires a public inquiry, looking at how social work departments have been operating.

"A family supporter, the Rev Mike Coley, said he had known the mother for more than a decade and she was incapable of harming her children. He said: "

The children should never have been taken into care."

Dumfries and Galloway Council said it was normal practice to investigate if a child was potentially at risk.

TIMELINE

• March 1998 – The two girls, aged five and six, are taken into care after their mother is suspected of having the condition Munchausen Syndrome by Proxy (MSPB).

• February 2001 – Mother loses legal battle to win back children, who are formally released for adoption.

• 2003 – Sally Clark's conviction for murdering her two young sons is overturned, casting doubt over MSPB.

• January 2004 – Scotsman inquiry reveals 12 parents in Scotland have been accused of having MSBP, resulting in 19 children being placed in care.

• 2008 – The eldest girl turns 16 and decides to return home to her mother.

BACKGROUND

A MOTHER or father is prevented from exercising their parental rights when their child is placed in care.

The children's hearing may or may not decide to allow parents access to a child taken into care.

A decision by the children's panel to take a child from the home can be appealed to the sheriff court by a parent within 21 days. A further appeal can be made to the Court of Session.

Parents have the right to ask for the decision to take their child into care to be reviewed after three months.

Legal aid is usually available to any parent who wishes to challenge such a decision.

The Bill of Rights

THE BILL OF RIGHTS

The Amendments to the Constitution

Ratified 1791

ARTICLES IN ADDITION TO, AND AMENDMENT OF, THE CONSTITUTION OF
THE UNITED STATES OF AMERICA, PROPOSED BY CONGRESS, AND RATIFIED
BY THE LEGISLATURES OF THE SEVERAL STATES, PURSUANT TO THE 5th
ARTICLE OF THE ORIGINAL CONSTITUTION.

(The first 10 Amendments were ratified 15 December 1791, and
form what is known as the 'Bill of Rights'.)

AMENDMENT I

Congress shall make no law respecting an establishment of religion,

or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a re-
dress of grievances.

AMENDMENT II

A well regulated Militia being necessary to the security of a
free State, the right of the people to keep and bear Arms, shall
not be infringed.

AMENDMENT III

No Soldier shall, in time of peace be quartered in any house,
without the consent of the Owner, nor in time of war, but in a
manner to be prescribed by law.

AMENDMENT IV

The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated; and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particu-
larly describing the place to be searched, and the persons or
things to be seized.

AMENDMENT V

No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand
Jury, except in cases arising in the land or naval forces, or in
the Militia, when in actual service in time of War or public
danger; nor shall any person be subject for the same offence to
be twice put in jeopardy of life or limb; nor shall be compelled
in any criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process of
law; nor shall private property be taken for public use, without
just compensation.

AMENDMENT VI

In all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial, by an impartial jury of the State
and district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and to
be informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defence.

AMENDMENT VII

In suits at common law, where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be
preserved, and no fact tried by a jury, shall be otherwise
reexamined in any Court of the United States, than according to
the rules of the common law.

AMENDMENT VIII

Excessive bail shall not be required, nor excessive fines imposed,

nor cruel and unusual punishment inflicted.

AMENDMENT IX

The enumeration in the Constitution, of certain rights, shall
not be construed to deny or disparage others retained by the
people.

AMENDMENT X

The powers not delegated to the United States by the Constitution,

nor prohibited to it by the States, are reserved to the
States respectively, or to the people.

http://www.harbornet.com/rights/usbor.txt

The Declaration of Independence

http://www.youtube.com/watch?v=ZxTvS-kyHzs

THE DECLARATION OF INDEPENDENCE:

In Congress, July 4, 1776,

THE UNANIMOUS DECLARATION OF THE

THIRTEEN UNITED STATES OF AMERICA

When in the Course of human events, it becomes necessary for one

people to dissolve the political bands which have connected them

with another, and to assume among the Powers of the earth, the

separate and equal station to which the Laws of Nature and of

Nature's God entitle them, a decent respect to the opinions of

mankind requires that they should declare the causes which impel

them to the separation.

We hold these truths to be self-evident, that all men are created equal,

that they are endowed by their Creator with certain

unalienable Rights, that among these are Life, Liberty, and the

pursuit of Happiness.

That to secure these rights, Governments are instituted among

Men, deriving their just powers from the consent of the governed.

That whenever any Form of Government becomes destructive of

these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to

them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shown, that mankind are more

disposed to suffer, while evils are sufferable, than to right

themselves by abolishing the forms to which they are accustomed.

But when a long train of abuses and usurpations, pursuing invariably the same Object, evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to

throw off such Government, and to provide new Guards future security.

Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government.

The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny

over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained;

and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into

compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing

with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to

cause others to be elected; whereby the Legislative powers,

incapable of Annihilation, have returned to the People at large for their exercise;

the State remaining in the mean time exposed

to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States;

for that purpose obstructing the Laws of Naturalization of Foreigners;

refusing to pass others to encourage their migrations hither,

and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice, by refusing his

Assent to Laws for establishing Judiciary powers.

He has made Judges dependent on his Will alone, for the tenure

of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither

swarms of Officers to harass our People, and eat out their substance.

He has kept among us, in times of peace, Standing Armies without

the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws;giving his Assent to their Acts of pretended Legislation:

For quartering large bodies of armed troops among us:

For protecting them, by a mock Trial, from Punishment for any

Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

For depriving us in many cases, of the benefits of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences:

For abolishing the free System of English Laws in a neighbouring Province,

establishing therein an Arbitrary government, and

enlarging its Boundaries so as to render it at once an example

and fit instrument for introducing the same absolute rule into these Colonies:

For taking away our Charters, abolishing our most valuable Laws,

and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves
invested with power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his
Protection and waging War against us.

He has plundered our seas, ravaged our Coasts, burnt our towns,
and destroyed the Lives of our people.

He is at this time transporting large armies of foreign mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely
paralleled in the most barbarous ages, and totally unworthy the
Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high
Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an
undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury.

A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to
be the ruler of a free people.

Nor have We been wanting in attention to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably
interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our
Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions,
do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent
States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally
dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which
Independent States may of right do. And for the support of this Declaration, with a firm reliance on the Protection of Divine Providence, we mutually pledge to each other our Lives, our
Fortunes and our sacred Honor.

JOHN HANCOCK, President

Attested, CHARLES THOMSON, Secretary

New Hampshire
JOSIAH BARTLETT
WILLIAM WHIPPLE
MATTHEW THORNTON

Massachusetts-Bay
SAMUEL ADAMS
JOHN ADAMS
ROBERT TREAT PAINE
ELBRIDGE GERRY

Rhode Island
STEPHEN HOPKINS
WILLIAM ELLERY

Connecticut
ROGER SHERMAN
SAMUEL HUNTINGTON
WILLIAM WILLIAMS
OLIVER WOLCOTT

Georgia
BUTTON GWINNETT
LYMAN HALL
GEO. WALTON

Maryland
SAMUEL CHASE
WILLIAM PACA
THOMAS STONE
CHARLES CARROLL
OF CARROLLTON

Virginia
GEORGE WYTHE
RICHARD HENRY LEE
THOMAS JEFFERSON
BENJAMIN HARRISON
THOMAS NELSON, JR.
FRANCIS LIGHTFOOT LEE
CARTER BRAXTON.

New York
WILLIAM FLOYD
PHILIP LIVINGSTON
FRANCIS LEWIS
LEWIS MORRIS

Pennsylvania
ROBERT MORRIS
BENJAMIN RUSH
BENJAMIN FRANKLIN
JOHN MORTON
GEORGE CLYMER
JAMES SMITH
GEORGE TAYLOR
JAMES WILSON
GEORGE ROSS

Delaware
CAESAR RODNEY
GEORGE READ
THOMAS M'KEAN

North Carolina
WILLIAM HOOPER
JOSEPH HEWES
JOHN PENN

South Carolina
EDWARD RUTLEDGE
THOMAS HEYWARD, JR.
THOMAS LYNCH, JR.
ARTHUR MIDDLETON

New Jersey
RICHARD STOCKTON
JOHN WITHERSPOON
FRANCIS HOPKINS
JOHN HART
ABRAHAM CLARK

What the hell happened?

This is totally out of this blog's scope, but thought I'd pass it along just the same.

(Thanks Ali)

Food for thought.

How many zeros in a billion?

This is too true to be funny

The next time you hear a politician use the word 'billion' in a casual manner, think about whether you want the 'politicians' spending YOUR tax money.

A billion is a difficult number to comprehend, but one advertising agency did a good job of putting that figure into some perspective in one of it's releases.

1. A billion seconds ago it was 1959.

2. A billion minutes ago Jesus was alive.

3. A billion hours ago our ancestors were living in the Stone Age.

4. A billion days ago no-one walked on the earth on two feet.

5. A billion dollars ago was only 8 hours and 20 minutes, at the rate our government is spending it.

While this thought is still fresh in our brain... let's take a look at New Orleans It's amazing what you can learn with some simple division.

Louisiana Senator, Mary Landrieu (D) is presently asking Congress for 250 BILLION DOLLARS to rebuild New Orleans Interesting number... what does it mean?

1. Well... if you are one of the 484,674 residents of New Orleans (every man, woman, and child) you each get $516,528.

2. Or... if you have one of the 188,251 homes in New Orleans , your home gets $1,329,787.

3. Or... if you are a family of four... your family gets $2,066,012.

Washington, D. C HELLO! Are all your calculators broken??

Accounts Receivable Tax

Building Permit Tax

CDL License Tax

Cigarette Tax

Corporate Income Tax

Dog License Tax

Federal Income Tax

Federal Unemployment Tax (FUTA)

Fishing License Tax

Food License Tax

Fuel Permit Tax

Gasoline Tax

Hunting License Tax

Inheritance Tax

Inventory Tax

IRS Interest Charges (tax on top of tax)

IRS Penalties (tax on top of tax)

Liquor Tax

Luxury Tax

Marriage License Tax

Medicare Tax

Property Tax

Real Estate Tax

Service charge taxes

Social Security Tax

Road Usage Tax (Truckers)

Sales Taxes

Recreational Vehicle Tax

School Tax

State Income Tax

State Unemployment Tax (SUTA)

Telephone Federal Excise Tax

Telephone Federal Universal Service Fee Tax

Telephone Federal, State and Local Surcharge Tax

Telephone Minimum Usage Surcharge Tax

Telephone Recurring and Non-recurring Charges Tax

Telephone State and Local Tax> Telephone Usage Charge Tax

Utility Tax

Vehicle License Registration Tax

Vehicle Sales Tax

Watercraft Registration Tax

Well Permit Tax

Workers Compensation Tax

STILL THINK THIS IS FUNNY?

Not one of these taxes existed 100 years ago... and our nation was the most prosperous in the world.

We had absolutely no national debt... We had the largest middle class in the world... and Mom stayed home to raise the kids.

What happened?

Can you spell 'politicians!'

And I still have to press "1" for English.

I hope this goes around the USA at least 100 times

What the HELL happened?????

More from Expose Corrupt Courts ...

REFRESH - Go to Home-Page

Now when I opened my Blog today .. glanced over at my favorite website on corruption in the courts and found this...

Friday, July 25, 2008

Federal Complaint: NYS Commission on Judicial Conduct is Corrupt

Federal Complaint: New York State Commission on Judicial Conduct is CorruptA filing in the U.S. District Court for the Southern District of New York says New York’s Commission on Judicial Conduct (SCJC) is a “sham” operation designed to protect certain political insiders, and to target, chill and destroy other “non-player” justices throughout the empire state.

I have to ask myself.. why wasn't I the least bit shocked?

Check out the link above for more....

"Misprision of a Felony"

REFRESH - Go to Home-Page

Don't miss this article today in Expose Corrupt Courts ..

"Misprision of a felony" Charges Needed in NY to Clean-Up Court Corruption
MISPRISION OF FELONY - Whoever, having knowledge of the actual commission of a felony cognizable by a court of the U.S., conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the U.S. 18 USC. Misprision of felony, is the like concealment of felony, without giving any degree of maintenance to the felon for if any aid be given him, the party becomes an accessory after the fact.

Expose Corrupt Courts: "Misprision of a felony" Charges Needed in NY to Clean-Up Court Corruption

Immunity as ruled by the US Supreme Court

A Big Thanks to winfred moore; for sending this to us and we want to share this with others. Here is some great case law regarding immunity.

35 PAGES IN GA==IMMUNITY CASES-MY DOCS-BLACKSTICK-ICE
Supreme Court's views as to application or applicability of doctrine of qualified immunity in action under 42 USCS § 1983, or in Bivens action, seeking damages for alleged civil rights violations. 116 L Ed 2d 965.

QUALIFIED IMMUNITY-MEMO

TITLE 69. CIVIL RIGHTS
III. LIABILITY AND REMEDIES FOR INFRINGEMENT
(B) UNDER FEDERAL LAW
2. Under Federal Civil Rights Legislation, In General.

69 L Ed Digest §32
Public defenders are not immune from liability under 42 USCS § 1983 for intentional misconduct, under color of state law, by virtue of alleged conspiratorial action with state officials that deprives their clients of federal rights. Tower v Glover, 467 US 914, 104 S Ct 2820, 81 L Ed 2d 758

§ 32 sovereign, governmental, or official immunity.

Return to the TOC

Search All Supreme Court Cases Classified under this Section

View Research and Cross References

CASE-NOTES:


The Civil Rights Statutes (8 USCS §§ 43, 47 (3)), which provide a civil remedy against those who, under color of state law, deprive, or conspire to deprive, a person of rights, privileges, or immunities secured by the Federal Constitution do not abolish the ancient rule under which legislators are immune from liability for acts done within the sphere of legislative activity. Hence no cause of action is stated by a complaint in an action to recover damages under these statutes in which it is alleged that the defendants, members of a state legislative committee constituted to inquire into un-American activities, summoned plaintiff to appear before them at a hearing, initiated contempt proceedings, and did other acts for the purpose of intimidating and silencing him and deterring him from effectively exercising his constitutional rights, such as the right of free speech and to petition the legislature for redress of grievances. (Douglas, J., dissented from this holding.) Tenney v Brandhove, 341 US 367, 71 S Ct 783, 95 L Ed 1019

All Federal & State Citing Cases

***
Note Distinguished in Richardson v McKnight, 521 US 399, 138 L Ed 2d 540, 117 S Ct 2100, holding that two prison guards, who were employees of private firm that managed state correctional center, were not entitled to qualified immunity from 42 USCS § 1983 suit by prisoner at center.
The common-law doctrine of immunity of judges from liability for damages for acts committed within their judicial jurisdiction is not abolished by § 1 of the Civil Rights Act of 1871 (42 USCS § 1983) which makes liable "every person" who under color of law deprives another person of his civil rights. (Douglas, J., dissented from this holding.) Pierson v Ray, 386 US 547, 87 S Ct 1213, 18 L Ed 2d 288

All Federal & State Citing Cases

***
Note Distinguished in Richardson v McKnight, 521 US 399, 138 L Ed 2d 540, 117 S Ct 2100, holding that two prison guards, who were employees of private firm that managed state correctional center, were not entitled to qualified immunity from 42 USCS § 1983 suit by prisoner at center.
Government officials, as a class, cannot be totally exempt, by virtue of some absolute immunity, from liability under the terms of 42 USCS § 1983, providing for a civil action for violation of federal rights, since the statute includes within its scope the misuse of power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law. Scheuer v Rhodes, 416 US 232, 94 S Ct 1683, 40 L Ed 2d 90

All Federal & State Citing Cases

***In determining whether public school officials are immune from liability for damages claimed under 42 USCS § 1983, providing for a civil action for violation of federal rights, because they acted in good faith in expelling high school students from school for violation of a school regulation, the appropriate test of good faith necessarily contains both objective and subjective elements; the official must himself be acting sincerely and with a belief that he is doing right, but an act violating a student's constitutional rights can be no more justified by ignorance or disregard of settled, indisputable law on the part of one entrusted with supervision of students' daily lives than by the presence of actual malice; to be entitled to a special exemption from the categorical remedial language of § 1983 in a case in which this action violated a student's constitutional rights, a school board member, who has voluntarily undertaken the task of supervising the operation of the school and the activities of the students, must be held to a standard of conduct based not only on permissible intentions, but also on knowledge of the basic unquestioned constitutional rights of his charges. (Powell, J., Burger, Ch. J., and Blackmun and Rehnquist, JJ., dissented from this holding.) Wood v Strickland, 420 US 308, 95 S Ct 992, 43 L Ed 2d 214


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***A state prosecuting attorney who acted within the scope of his duties in initiating and pursuing a criminal prosecution and in presenting the state's case is absolutely immune from a civil suit for damages for alleged deprivations of the defendant's constitutional rights under 42 USCS § 1983, which provides that every person who acts under color of state law to deprive another of a constitutional right shall be liable to the injured party in an action at law. Imbler v Pachtman, 424 US 409, 96 S Ct 984, 47 L Ed 2d 128

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*** Note Distinguished in Burns v Reed, 500 US 478, 114 L Ed 2d 547, 111 S Ct 1934, holding that, for purposes of damages liability under 42 USCS § 1983, local prosecutor was entitled to absolute immunity for participation in probable cause hearing to obtain search warrant, but to only qualified immunity for giving legal advice to police in investigative phase of criminal case; Antoine v Byers & Anderson, Inc., 508 US 429, 124 L Ed 2d 391, 113 S Ct 2167, holding that court reporter for Federal District Court was not absolutely immune from damages liability for failing to produce transcript of federal criminal trial.
A state prosecutor's absolute immunity from liability for damages under 42 USCS § 1983 for acts done in the scope of his duties in initiating and prosecuting a case, which acts allegedly deprived the accused of constitutional rights is applicable even where the prosecutor (1) knowingly used perjured testimony at the trial, (2) deliberately withheld exculpatory information, or (3) failed to make a full disclosure of all facts casting doubt upon the state's testimony. (White, Brennan, and Marshall, JJ., dissented in part from this holding.) Imbler v Pachtman, 424 US 409, 96 S Ct 984, 47 L Ed 2d 128

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***Note Distinguished in Burns v Reed, 500 US 478, 114 L Ed 2d 547, 111 S Ct 1934, holding that, for purposes of damages liability under 42 USCS § 1983, local prosecutor was entitled to absolute immunity for participation in probable cause hearing to obtain search warrant, but to only qualified immunity for giving legal advice to police in investigative phase of criminal case; Antoine v Byers & Anderson, Inc., 508 US 429, 124 L Ed 2d 391, 113 S Ct 2167, holding that court reporter for Federal District Court was not absolutely immune from damages liability for failing to produce transcript of federal criminal trial.
A prosecutor, acting within the scope of his duties in initiating and prosecuting a case, has the same absolute immunity from liability for damages under 42 USCS § 1983 for alleged violation of another's constitutional rights that a prosecutor enjoys at common law, notwithstanding that such immunity leaves the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty; there is not exception to such prosecutorial immunity even where the person asserting violation of his civil rights has successfully petitioned for habeas corpus relief. Imbler v Pachtman, 424 US 409, 96 S Ct 984, 47 L Ed 2d 128

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***Note Distinguished in Burns v Reed, 500 US 478, 114 L Ed 2d 547, 111 S Ct 1934, holding that, for purposes of damages liability under 42 USCS § 1983, local prosecutor was entitled to absolute immunity for participation in probable cause hearing to obtain search warrant, but to only qualified immunity for giving legal advice to police in investigative phase of criminal case; Antoine v Byers & Anderson, Inc., 508 US 429, 124 L Ed 2d 391, 113 S Ct 2167, holding that court reporter for Federal District Court was not absolutely immune from damages liability for failing to produce transcript of federal criminal trial.
In an action under 42 USCS § 1983 against state prison officials, such officials are immune from liability as to a state prisoner's claim arising out of the officials' alleged unconstitutional interference with the state prisoner's outgoing mail, where (1) at the time of the alleged misconduct of the officials there was no clearly established First and Fourteenth Amendment right with respect to the correspondence of convicted prisoners, and (2) the prisoner's claim for relief asserted that prison officials negligently and inadvertently interfered with mail and that prison supervisory officials negligently failed to provide proper training to their subordinates. (Burger, Ch. J., and Stevens, J., dissented.) Procunier v Navarette, 434 US 555, 98 S Ct 855, 55 L Ed 2d 24

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*** Note Distinguished in Richardson v McKnight, 521 US 399, 138 L Ed 2d 540, 117 S Ct 2100, holding that two prison guards, who were employees of private firm that managed state correctional center, were not entitled to qualified immunity from 42 USCS § 1983 suit by prisoner at center.
In an action for damages under 42 USCS § 1983 a qualified immunity from damages is available to a state governor, a president of a state university, and officers and members of a state national guard; the same is true of local school board members, of the superintendent of a state hospital, and of local policemen. Procunier v Navarette, 434 US 555, 98 S Ct 855, 55 L Ed 2d 24

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In a suit brought against state prison officials for damages under 42 USCS § 1983 arising from the actions of the officials which allegedly violated federal constitutional rights of a state prisoner, the state prison officials are entitled to qualified, rather than absolute, immunity from liability; the immunity defense is unavailing to the prison officials (1) if the constitutional rights allegedly infringed by them were clearly established at the time of their challenged conduct, they knew or should have known of the rights, and they knew or should have known that their conduct violated the constitutional norms, or (2) if they acted with malicious intention to deprive the prisoner of constitutional rights or to cause him other injury. Procunier v Navarette, 434 US 555, 98 S Ct 855, 55 L Ed 2d 24

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*** "Intentional injury," contemplating that the actor intends the consequences of his conduct, is involved in the rule governing qualified immunity whereby a state official sued for damages under 42 USCS § 1983 is not immune from suit when the official acted with "malicious intention" to deprive the plaintiff of a constitutional right or to cause him "other injury." Procunier v Navarette, 434 US 555, 98 S Ct 855, 55 L Ed 2d 24

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State-law immunities do not override a cause of action under 42 USCS § 1983, which imposes civil liability on any person who deprives another of his federally protected rights. Monell v Department of Social Services, 436 US 658, 98 S Ct 2018, 56 L Ed 2d 611

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*** In the absence of congressional direction to the contrary, a higher degree of immunity from liability is not to be accorded to federal officials when sued for a constitutional violation than is accorded to state officials when sued for the identical violation under 42 USCS § 1983. Butz v Economou, 438 US 478, 98 S Ct 2894, 57 L Ed 2d 895

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*** It is untenable to draw a distinction for purposes of immunity law between suits brought against state officials under 42 USCS § 1983 and suits brought directly under the Federal Constitution against federal officials. Butz v Economou, 438 US 478, 98 S Ct 2894, 57 L Ed 2d 895

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***42 USCS § 1983 which provides a right of action against any "person" who deprives, under color of state law, another of federal civil rights, does not override the traditional sovereign immunity of the states as guaranteed by the Eleventh Amendment. Quern v Jordan, 440 US 332, 99 S Ct 1139, 59 L Ed 2d 358

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*** A state statute which grants public officials immunity from liability for any injury resulting from a parole release determination does not control a claim asserted in a state court under 42 USCS § 1983 against state officials by the survivors of an individual who was murdered by a parolee, such claim alleging that the officials, by their actions in releasing the parolee, had subjected the decedent to a deprivation of life without due process of law; conduct by persons acting under color of state law which is wrongful under 42 USCS § 1983 or 42 USCS § 1985(3) cannot be immunized by state law. Martinez v California, 444 US 277, 100 S Ct 553, 62 L Ed 2d 481

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***In an action brought against a municipality under 42 USCS § 1983 for depriving a person of federally protected rights, the municipality is not entitled to qualified immunity from liability by asserting the good faith of its officers or agents as a defense to liability under § 1983. (Powell, J., Burger, Ch. J., and Stewart and Rehnquist, JJ., dissented from this holding.) Owen v Independence, 445 US 622, 100 S Ct 1398, 63 L Ed 2d 673
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*** The applicable test for determining establishment of the qualified immunity defense to damages liability under 42 USCS § 1983 that is available to executive officers for acts performed in the course of official conduct focuses not only on whether the official had an objectively reasonable belief that his conduct was lawful, but also on whether the official himself was acting sincerely and with a belief that he was doing right. Gomez v Toledo, 446 US 635, 100 S Ct 1920, 64 L Ed 2d 572

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*** A state's highest court and its members are acting in their legislative capacity and are immune from suit under 42 USCS § 1983 with respect to the issuance of a state code of professional responsibility governing the conduct of attorneys, where the court, claiming inherent power to regulate the bar, exercises the state's entire legislative capacity with respect to regulating the bar, and the court's members are the state's legislators for the purpose of issuing the code. Supreme Court of Virginia v Consumers Union of United States, Inc., 446 US 719, 100 S Ct 1967, 64 L Ed 2d 641

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*** State legislators' common-law immunity from liability for their legislative acts extends to civil rights actions seeking declaratory or injunctive relief under 42 USCS § 1983 as well as to actions seeking damages. Supreme Court of Virginia v Consumers Union of United States, Inc., 446 US 719, 100 S Ct 1967, 64 L Ed 2d 641

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***Although the separation of powers doctrine justifies a broader privilege for Congressmen than for state legislators in criminal actions, the legislative immunity to which state legislators are entitled under 42 USCS § 1983 is equivalent to that accorded Congressmen under the Constitution. Supreme Court of Virginia v Consumers Union of United States, Inc., 446 US 719, 100 S Ct 1967, 64 L Ed 2d 641

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*** Prosecutors enjoy absolute immunity from damages liability under 42 USCS § 1983, but they are natural targets for injunctive suits under 42 USCS § 1983 since they are the state officers who are threatening to enforce and who are enforcing the law. Supreme Court of Virginia v Consumers Union of United States, Inc., 446 US 719, 100 S Ct 1967, 64 L Ed 2d 641

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***A state official claiming immunity from liability under 42 USCS § 1983 has the burden of demonstrating his entitlement thereto. Dennis v Sparks, 449 US 24, 101 S Ct 183, 66 L Ed 2d 185

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*** The decisions of the United States Supreme Court recognizing absolute immunity for judges and prosecutors from civil liability under § 1 of the 1871 Civil Rights Act (42 USCS § 1983) implicitly reject the position that the legislative history of the 1866 Civil Rights Act defines the scope of immunities for purposes of the 1871 Act. Briscoe v LaHue, 460 US 325, 103 S Ct 1108, 75 L Ed 2d 96

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*** Immunity analysis rests on functional categories, not on the status of a defendant; a police officer on the witness stand performs the same functions as any other witness and he is subject to compulsory process, takes an oath, responds to questions on direct examination and cross-examination, and may be prosecuted subsequently for perjury; to the extent that traditional reasons for witness immunity are less applicable to government witnesses, other considerations of public policy support absolute immunity for such witnesses more emphatically than for ordinary witnesses; subjecting government officials, such as police officers, to damages liability under 42 USCS § 1983 for their testimony might undermine not only their contribution to the judicial process but also the effective performance of their other public duties since § 1983 lawsuits against police officer witnesses, like lawsuits against prosecutors, could be expected with some frequency and could be very time-consuming, imposing significant burdens on the judicial system and on law-enforcement resources. (Brennan, Marshall, and Blackmun, JJ., dissented from this holding.) Briscoe v LaHue, 460 US 325, 103 S Ct 1108, 75 L Ed 2d 96

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*** There is no exception to the rule that police officers are immune from civil liability for damages under 42 USCS § 1983 for alleged violation of another's constitutional rights even where the person asserting violation of his civil rights has successfully vindicated himself in another forum, either on appeal or by collateral attack, since, in determining whether to grant post-conviction relief, the tribunal should focus solely on whether there was a fair trial under law and should not have its focus blurred by even the subconscious knowledge that a post-trial decision in favor of the accused might result in the police officer's being called upon to respond in damages; it is not for the United States Supreme Court to craft a new rule designed to enable trial judges to dismiss meritless claims before trial but to allow recovery in cases of demonstrated injustice, when an innocent plaintiff has already obtained post-conviction relief. Briscoe v LaHue, 460 US 325, 103 S Ct 1108, 75 L Ed 2d 96

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*** The English rule was that parties and witnesses were immune from subsequent damages liability for their testimony in judicial proceedings and the American rule sometimes showed a requirement that the witness's allegedly defamatory statements were relevant to the judicial proceeding, but once this threshold showing had been made, the witness had an absolute privilege; for purposes of analysis under 42 USCS § 1983, there is no material difference between the English rule and the American rule in terms of whether a police officer could be sued for alleged perjury at a criminal trial since the testimony by the officers would have received absolute protection at common law, because it was directly relevant to the criminal charges and if the testimony had not been relevant, it is unlikely that those suing under § 1983 would have stated a claim that their constitutional rights had been violated. Briscoe v LaHue, 460 US 325, 103 S Ct 1108, 75 L Ed 2d 96

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*** 42 USCS § 1983 does not abrogate the absolute immunity existing at common law, at least with respect to private witnesses, either by the language in the statute or by the legislative history; the legislative history does not support the contention that Congress intended to provide a damages remedy against police officers or any other witnesses. (Marshall and Blackmun, JJ., dissented from this holding.) Briscoe v LaHue, 460 US 325, 103 S Ct 1108, 75 L Ed 2d 96

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***Note Distinguished in Richardson v McKnight, 521 US 399, 138 L Ed 2d 540, 117 S Ct 2100, holding that two prison guards, who were employees of private firm that managed state correctional center, were not entitled to qualified immunity from 42 USCS § 1983 suit by prisoner at center.
Public defenders are not immune from liability under 42 USCS § 1983 for intentional misconduct, under color of state law, by virtue of alleged conspiratorial action with state officials that deprives their clients of federal rights. Tower v Glover, 467 US 914, 104 S Ct 2820, 81 L Ed 2d 758

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*** On its face, 42 USCS § 1983 admits no immunities, but substantive doctrines of privilege and immunity may limit the relief available in litigation under this section; § 1983 immunities are predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it. Tower v Glover, 467 US 914, 104 S Ct 2820, 81 L Ed 2d 758

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***The United States Supreme Court does not have a license to establish immunities from actions under 42 USCS § 1983 in the interest of what the court judges to be sound public policy, but rather, it is for Congress to determine whether § 1983 litigation has become too burdensome to state or federal institutions and, if so, what remedial action is appropriate. Tower v Glover, 467 US 914, 104 S Ct 2820, 81 L Ed 2d 758

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*** State officials do not lose their qualified immunity from suit under 42 USCS § 1983 for deprivation of federal constitutional rights merely because their conduct violates the clear command of a state administrative regulation. Davis v Scherer, 468 US 183, 104 S Ct 3012, 82 L Ed 2d 139

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***Note
Distinguished in Elder v Holloway, 510 US 510, 127 L Ed 2d 344, 114 S Ct 1019, holding that with respect to damages actions, under provisions such as 42 USCS § 1983, charging public officials with violation of federal right appellate review of Federal District Court's qualified immunity dispositions was to be conducted in light of all relevant precedents, not simply those cited to or discovered by District Court.
An official will not be held liable in damages under 42 USCS § 1983 unless the constitutional right he is alleged to have violated is clearly established at the time of the violation. Davis v Scherer, 468 US 183, 104 S Ct 3012, 82 L Ed 2d 139

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*** The same qualified immunity rules apply in suits against state officers under 42 USCS § 1983 and in suits against federal officers. Davis v Scherer, 468 US 183, 104 S Ct 3012, 82 L Ed 2d 139

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*** Unless a state has waived its Eleventh Amendment immunity or Congress has overridden it, a state cannot be sued in federal court directly in its own name regardless of the relief sought; thus, in federal civil rights actions, implementation of state policy or custom may be reached in federal court only because official-capacity actions against government employees for prospective relief are not treated as actions against the state. Kentucky v Graham, 473 US 159, 105 S Ct 3099, 87 L Ed 2d 114

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*** Given the Eleventh Amendment bar to damage actions in federal court against state officials in their official capacity, absent waiver by the state or valid congressional override, a federal civil rights action against a state police commissioner is necessarily litigated as a personal-capacity action, thus relieving the state of liability for attorneys' fees under 42 USCS § 1988. Kentucky v Graham, 473 US 159, 105 S Ct 3099, 87 L Ed 2d 114

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*** The rule that the Eleventh Amendment to the United States Constitution bars a damages action against a state in federal court, absent waiver by the state or valid congressional override, remains in effect when state officials are sued for damages in their official capacity; this is so because a judgment against a public servant in his official capacity imposes liability on the entity that he represents. Kentucky v Graham, 473 US 159, 105 S Ct 3099, 87 L Ed 2d 114

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*** In an action under 42 USCS § 1983 against a police officer whose successful request for a warrant allegedly causes an unconstitutional arrest because his complaint and supporting affidavit fail to establish probable cause, the officer is not entitled to absolute immunity from liability for damages, but is entitled only to a qualified immunity which depends on the objective reasonableness of his actions; the officer will not be immune if, on an objective basis, the application is so lacking in indicia of probable cause that no reasonably competent officer would have concluded that a warrant should issue, but immunity should be recognized if officers of reasonable competence could disagree on this issue; the officer is not shielded from damages liability on the theory that the act of applying for a warrant is per se objectively reasonable if the officer believes that the facts alleged in his affidavit are true. Malley v Briggs, 475 US 335, 106 S Ct 1092, 89 L Ed 2d 271

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***
Note Distinguished in Wyatt v Cole, 504 US 158, 118 L Ed 2d 504, 112 S Ct 1827, holding that private defendants who invoke state replevin, garnishment, and attachment statutes that are later declared unconstitutional are not entitled to qualified immunity from suit under 42 USCS § 1983.
ELEMENTS:
In resolving questions of the immunity of officials from suit for violations of constitutional rights under the Civil Rights Act of 1871 (42 USCS § 1983), the initial inquiry is whether an official claiming such immunity can point to a common-law counterpart to the privilege he asserts; if an official was accorded immunity from tort actions at common law when the Act was enacted, the court next considers whether the history or purposes of § 1983 nonetheless counsel against recognizing the same immunity in actions under that statute; thus, while the common law is consulted for guidance, it is not assumed that Congress intended to incorporate every common-law immunity into § 1983 in unaltered form. Malley v Briggs, 475 US 335, 106 S Ct 1092, 89 L Ed 2d 271

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*** In actions for violation of constitutional rights under 42 USCS § 1983, executive officers in general are normally entitled to only qualified immunity. Malley v Briggs, 475 US 335, 106 S Ct 1092, 89 L Ed 2d 271

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*** Note Distinguished in Wyatt v Cole, 504 US 158, 118 L Ed 2d 504, 112 S Ct 1827, holding that private defendants who invoke state replevin, garnishment, and attachment statutes that are later declared unconstitutional are not entitled to qualified immunity from suit under 42 USCS § 1983.
It is untenable to draw a distinction for purposes of immunity law between suits brought against state officials under 42 USCS § 1983 and suits brought directly under the Federal Constitution against federal officials. Malley v Briggs, 475 US 335, 106 S Ct 1092, 89 L Ed 2d 271

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*** In assessing the credibility of a law enforcement officer's account of the circumstances that prompted the officer's use of force against a free citizen, with respect to the citizen's claim that such force was excessive and violated the citizen's right under the Federal Constitution's Fourth Amendment to be secure against unreasonable seizures, a fact-finder may consider, along with other factors, evidence that the officer may have harbored ill-will toward the citizen against whom force was used; similarly, an officer's objective good faith that is, whether the officer could reasonably have believed that the force used did not violate the Fourth Amendment may be relevant to the availability of the qualified immunity defense to monetary liability under 42 USCS § 1983. Graham v Connor, 490 US 386, 109 S Ct 1865, 104 L Ed 2d 443

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*** A state is not a "person" within the meaning of 42 USCS § 1983 which provides that any "person" acting under color of state law in violating another's federal constitutional rights is liable to the injured party because (1) a reading of § 1983 to include a state as a person would be an awkward way of expressing an intent to subject states to liability and is not so clearly indicated that it provides a reason to depart from the understanding that statutes employing the word "person" are ordinarily construed to exclude the sovereign, (2) the language of § 1983 falls short of satisfying the ordinary rule of statutory construction that if Congress intends in a statute to alter the usual constitutional balance between the states and the Federal Government, it must make its intentions to do so unmistakably clear in the language of the statute, (3) given that a principal purpose behind the enactment of § 1983 was to provide a federal forum for civil rights claims, and that Congress did not provide a federal forum for civil rights claims against states, Congress did not intend to create under § 1983 a cause of action against states to be brought in state courts, which are precisely the courts that Congress sought to allow civil rights claimants to avoid through § 1983, (4) in enacting § 1983, Congress did not intend to override a state's common-law immunity from being sued without its consent, and (5) nothing substantial in the legislative history of § 1983 indicates that Congress intended that the word "person" in § 1983 include the States of the Union, and nothing in the legislative debates regarding § 1983 rises to the clearly expressed legislative intent necessary to permit that construction of § 1983; thus, a state is not subject to liability for damages in a § 1983 action brought in a state court. (Brennan, Marshall, Blackmun, and Stevens, JJ., dissented from this holding.) Will v Michigan Dept. of State Police, 491 US 58, 109 S Ct 2304, 105 L Ed 2d 45

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*** Note Distinguished in Hilton v South Carolina Pub. Rys. Comm'n, 502 US 197, 116 L Ed 2d 560, 112 S Ct 560, holding that Federal Employers' Liability Act (45 USCS §§ 51-60) creates cause of action, enforceable in state court, against state-owned railroad.
Although, with respect to a suit under 42 USCS § 1983 which provides that any "person" acting under color of state law in violating another's federal constitutional rights is liable to the injured party the Federal Constitution's Eleventh Amendment's bar against a suit brought against a state, in the absence of the state's waiving its immunity or Congress' exercising its power under § 5 of the Federal Constitution's Fourteenth Amendment to override that immunity, applies only to § 1983 suits brought in a federal forum, the scope of the Eleventh Amendment is a consideration in deciphering congressional intent as to the scope of the word "person" in § 1983, even with respect to actions brought against states in state courts. (Brennan, Marshall, Blackmun, and Stevens, JJ., dissented from this holding.) Will v Michigan Dept. of State Police, 491 US 58, 109 S Ct 2304, 105 L Ed 2d 45

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*** A state-law defense of sovereign immunity is not available to a school board in an action under 42 USCS § 1983 brought in a state court, where (1) the court is one of general jurisdiction, (2) the court exercises jurisdiction over tort claims by private citizens against state entities, including school boards, of the size and type of the claim at issue, and can enter judgment against such entities, (3) the court exercises jurisdiction over § 1983 actions against individual officers and is fully competent to provide the remedies that § 1983 requires, (4) the claimant has complied with all the state-law procedures for invoking the court's jurisdiction, and (5) a sovereign-immunity defense would not be available if the action were brought in a federal forum. Howlett v Rose, 496 US 356, 110 S Ct 2430, 110 L Ed 2d 332

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*** Note Distinguished in Alden v Maine, 527 US 706, 144 L Ed 2d 636, 119 S Ct 2240, holding that powers delegated to Congress under Article I of Federal Constitution do not include power to subject nonconsenting states to private suits for damages in states' own courts.
An entity with immunity from suit under the Federal Constitution's Eleventh Amendment is not a "person" within the meaning of 42 USCS § 1983; thus, a state and arms of the state, which have traditionally enjoyed Eleventh Amendment immunity, are not subject to suit under § 1983 in either federal court or state court. Howlett v Rose, 496 US 356, 110 S Ct 2430, 110 L Ed 2d 332

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*** A state court's refusal to entertain one discrete category of claims under 42 USCS § 1983 whether the question is presented in terms of a substantive rule of decision that state agencies are not subject to liability under § 1983, or in terms of a simple refusal to take jurisdiction of § 1983 actions against state agencies violates the Federal Constitution's supremacy clause (Art VI, cl 2), where the court entertains similar state-law actions against state defendants; the state's refusal to entertain such actions is not justified by the mere facts that state common law and statutory law do not make unlawful the precise conduct that § 1983 addresses, and that § 1983 actions are more likely to be frivolous than are other suits, since such asserted reasons are not the kind of neutral policy that could be a valid excuse for the state court's refusal to entertain § 1983 actions; thus, a state court cannot reject a § 1983 claim against a school board where the reason for the rejection is that the court has chosen, for substantive policy reasons, not to adjudicate other claims which might also render the school board liable. Howlett v Rose, 496 US 356, 110 S Ct 2430, 110 L Ed 2d 332

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*** A state court's holding that state governmental entities subject to liability under 42 USCS § 1983 enjoy an immunity over and above those immunities already provided in § 1983 directly violates federal law; to the extent that the state's law of sovereign immunity reflects a substantive disagreement as to the extent to which governmental entities should be held liable for their violations of the Federal Constitution, that disagreement cannot override the dictates of federal law. Howlett v Rose, 496 US 356, 110 S Ct 2430, 110 L Ed 2d 332

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*** Under 42 USCS § 1983, federal law makes governmental defendants that are not arms of the state, such as municipalities, liable for their violations of the Federal Constitution; by including municipalities within the class of "persons" subject to liability under § 1983 for violation of the Federal Constitution and laws, Congress the supreme sovereign on matters of federal law has abolished whatever vestige of the state's sovereign immunity the municipality possessed. Howlett v Rose, 496 US 356, 110 S Ct 2430, 110 L Ed 2d 332

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*** As to persons that Congress has subjected to liability under 42 USCS § 1983, individual states may not exempt such persons from federal liability by relying on such states' own common-law heritage of sovereign immunity. Howlett v Rose, 496 US 356, 110 S Ct 2430, 110 L Ed 2d 332

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*** A local prosecutor is entitled to absolute immunity from liability for damages under 42 USCS § 1983 for the prosecutor's appearance as a lawyer for the state in a probable cause hearing in which the prosecutor examines a witness and successfully supports an application for a search warrant, because (1) like witnesses, prosecutors and other lawyers were absolutely immune from damages liability at common law for making false and defamatory statements in judicial proceedings at least so long as the statements were related to the proceedings and for eliciting false and defamatory testimony from witnesses; (2) such immunity extended to any hearing before a tribunal which performed a judicial function; (3) absolute immunity is justified by concerns of policy, for (a) the prosecutor's actions in question involve the prosecutor's role as advocate for the state rather than the prosecutor's role as administrator or investigative officer, (b) appearance at a probable cause hearing is intimately associated with the judicial phase of the criminal process and is connected with the initiation and conduct of a prosecution, particularly where, as in the case at hand, the hearing occurs after arrest, and (c) absolute immunity serves the policy of protecting the judicial process, as there is a substantial likelihood of vexatious litigation that might have an untoward effect on the independence of the prosecutor; and (4) the judicial process is available as a check on prosecutorial actions at a probable cause hearing. Burns v Reed, 500 US 478, 111 S Ct 1934, 114 L Ed 2d 547

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*** For purposes of liability for damages under 42 USCS § 1983, a local prosecutor has not met his burden of showing that the relevant factors justify an extension of absolute immunity to the prosecutorial function of giving legal advice to the police in the investigative phase of a criminal case, and thus the prosecutor is entitled to only qualified immunity for giving such advice, because (1) no support has been identified in either history or American common law for extending such absolute immunity to prosecutors; (2) advising the police at the investigative phase is not so intimately associated with the judicial phase of the criminal process as to require absolute immunity; (3) even if there is some risk of burdensome litigation, such concern justifies absolute prosecutorial immunity only for actions that are connected with the prosecutor's role in judicial proceedings, not for every litigation-inducing conduct; (4) although the absence of absolute immunity may cause prosecutors to consider their advice more carefully, (a) where an official could be expected to know that the official's conduct would violate statutory or constitutional rights, the official should be made to hesitate, (b) the qualified immunity standard is sufficiently protective, and (c) it would be incongruous to allow prosecutors absolute immunity for giving legal advice, but to allow police officers only qualified immunity for following the advice; (5) absolute immunity is not so expansive as to include any action by a prosecutor in some way related to the ultimate decision whether to prosecute; and (6) although there are several checks other than civil litigation to prevent abuses of authority by prosecutors, the judicial process one of the most important checks will not necessarily restrain out-of-court activities by a prosecutor that occur prior to the initiation of a prosecution, such as the activity of providing legal advice to the police, particularly where a suspect is not eventually prosecuted. Burns v Reed, 500 US 478, 111 S Ct 1934, 114 L Ed 2d 547

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*** Although the precise contours of official immunity from liability for damages under 42 USCS § 1983 need not mirror the immunity at common law, the United States Supreme Court looks to the common law and other history for guidance, because the Supreme Court's role is not to make a freewheeling policy choice, but rather to discern Congress' likely intent in enacting § 1983; the Supreme Court does not have a license to establish immunities from § 1983 actions in the interests of what the Supreme Court judges to be sound public policy; in looking to the common law for purposes of official immunity under § 1983, it is American common law that is determinative. Burns v Reed, 500 US 478, 111 S Ct 1934, 114 L Ed 2d 547

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*** In determining whether government officials should be absolutely immune from liability for damages under 42 USCS § 1983, the concern as to the risk of vexatious litigation is not merely a generalized concern with interference with an official's duties, but rather is a concern with interference with the conduct closely related to the judicial process; absolute immunity is designed to free the judicial process from the harassment and intimidation associated with litigation. Burns v Reed, 500 US 478, 111 S Ct 1934, 114 L Ed 2d 547

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*** For purposes of determining the extent of a government official's immunity from liability for damages under 42 USCS § 1983, qualified immunity satisfies one of the principal concerns underlying the recognition of absolute immunity, where the standard for qualified immunity whether an official violated clearly established statutory or constitutional rights of which a reasonable person would have known is designed to avoid excessive disruption of government and to permit the resolution of many insubstantial claims on summary judgment; qualified immunity provides ample support to all but the plainly incompetent or those who knowingly violate the law. Burns v Reed, 500 US 478, 111 S Ct 1934, 114 L Ed 2d 547

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*** Even if a county public defender's allegations are taken as true that (1) after the public defender failed to appear for an initial call of a state judge's morning calendar, the judge ordered two police officers to seize the public defender forcibly and with excessive force and bring him into the judge's courtroom, (2) the officers by means of unreasonable force and violence removed the public defender from another courtroom and brought him into the judge's courtroom, and (3) the judge knowingly approved and ratified each of the officers' acts the judge is immune from a 42 USCS § 1983 suit for money damages, because (1) the judge's alleged actions were taken in his judicial capacity, where (a) under the state's law, a judge's direction to court officers to bring before him a person who is in the courthouse is a function normally performed by a judge, (b) the public defender, who was called into the courtroom for purposes of a pending case, was dealing with the judge in the judge's judicial capacity, (c) although a judge's direction to police officers to carry out a judicial order with excessive force is not a function normally performed by a judge, the relevant inquiry is to look to the particular act's relation to a general function normally performed by a judge, that is, the function of directing police officers to bring counsel in a pending case before the court, and (d) the fact that the judge's order was carried out by police officers does not transform his acts from "judicial" to "executive" in character, and (2) even though the judge acted in excess of his authority if he authorized and ratified the officers' alleged use of excessive force, such an action, taken in the very aid of the judge's jurisdiction over a matter before him, cannot be said to have been taken in the absence of all jurisdiction; thus, even though the United States Supreme Court for purposes of reviewing the judge's motion to dismiss the case as to him for failure to state a claim upon which relief could be granted takes the allegations of the public defender's complaint as true, the Supreme Court will grant the judge's petition for certiorari and summarily reverse a Federal Court of Appeals' judgment reversing a Federal District Court's grant of the judge's motion. (Stevens, Scalia, and Kennedy, JJ., dissented from this holding.) Mireles v Waco, 502 US 9, 112 S Ct 286, 116 L Ed 2d 9

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*** Note Distinguished in Antoine v Byers & Anderson, Inc., 508 US 429, 124 L Ed 2d 391, 113 S Ct 2167, holding that court reporter for Federal District Court was not absolutely immune from damages liability for failing to produce transcript of federal criminal trial.
State officials may be held personally liable for damages under 42 USCS § 1983 which provides that any "person" acting under color of state law in violating another's federal rights is liable to the injured party based upon actions taken in their official capacities, because (1) with respect to the United States Supreme Court's holding in Will v Michigan Dept. of State Police (1989) 491 US 58, 105 L Ed 2d 45, 109 S Ct 2304, that state officials acting in their official capacities are not "persons" subject to liability under § 1983, the phrase "acting in their official capacities" is best understood as a reference to the capacity in which a state official is sued rather than the capacity in which the official inflicts the alleged injury, (2) state officials, sued in their individual capacities, are "persons" within the meaning of § 1983, and (3) the Federal Constitution's Eleventh Amendment which bars suits in federal courts by private parties seeking to impose a liability which must be paid from public funds in a state treasury does not erect a barrier against suits to impose individual and personal liability on state officials under § 1983, since, although the Eleventh Amendment is considered in Will, which case arose from a suit in a state court, the holding in Will does not rest directly on the Eleventh Amendment; thus, state employees who are dismissed from their jobs, allegedly in violation of their federal rights, by a state official acting under color of state law may maintain against the official § 1983 suits seeking damages from the official in his or her personal capacity. Hafer v Melo, 502 US 21, 112 S Ct 358, 116 L Ed 2d 301

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*** With respect to a suit for damages under 42 USCS § 1983 which provides that any "person" acting under color of state law in violating another's federal rights is liable to the injured party brought against a state official in his or her official capacity, because the real party in interest is the governmental entity and not the named official, (1) for liability to be established, the governmental entity's policy or custom must have played a part in the violation of federal law, and (2) the only immunities available to the state official are those that the governmental entity possesses. Hafer v Melo, 502 US 21, 112 S Ct 358, 116 L Ed 2d 301

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*** State officials sued under 42 USCS § 1983 which provides that any "person" acting under color of state law in violating another's federal rights is liable to the injured party [for damages in their personal capacities fit within the statutory term "person,]" because (1) the requirement of action under color of state law means that state officials may be liable under § 1983 precisely because of their authority as state officials; and (2) the argument that only state officials' acts under color of state law that are taken outside the officials' authority or are not essential to the operation of state government can subject state officials to personal liability under § 1983
(a) ignores the United States Supreme Court's holding in a prior case that Congress enacted § 1983 to enforce provisions of the Federal Constitution's Fourteenth Amendment against those who carry a badge of authority of a state and represent it in some capacity, whether they act in accordance with their authority or misuse it, and
(b) cannot be reconciled with prior Supreme Court decisions regarding immunity of government officials otherwise personally liable for acts done in the course of their official duties, since the argued theory would absolutely immunize state officials from personal liability for acts within their authority and necessary for fulfilling governmental responsibility, where prior Supreme Court decisions do not extend absolute immunity to all state officials who engage in necessary official acts. Hafer v Melo, 502 US 21, 112 S Ct 358, 116 L Ed 2d 301

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*** With respect to 42 USCS § 1983, which provides that any "person" acting under color of state law in violating another's federal constitutional rights is liable to the injured party, (1) immunity from suit is predicated upon a considered inquiry into the immunity historically accorded the relevant state official at common law and into the interests behind the common-law immunity, and
(2) officials seeking absolute immunity must show that such immunity is justified for the governmental function at issue. Hafer v Melo, 502 US 21, 112 S Ct 358, 116 L Ed 2d 301

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*** State executive officials are not entitled to absolute immunity from suit under 42 USCS § 1983 which provides that any "person" acting under color of state law in violating another's federal constitutional rights is liable to the injured party for their official actions, where the United States Supreme Court has refused to extend absolute immunity from suit beyond a very limited class of officials including the President of the United States, legislators carrying out their legislative functions, and judges carrying out their judicial functions whose special functions or constitutional status requires complete protection from suit. Hafer v Melo, 502 US 21, 112 S Ct 358, 116 L Ed 2d 301

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***
The intent of 42 USCS § 1983 which provides that any "person" acting under color of state law in violating another's federal rights is liable to the injured party is not to override a state's immunity, under the Federal Constitution's Eleventh Amendment, from suits in a federal court, where, in § 1983, Congress failed to authorize suits against states in federal courts. Hafer v Melo, 502 US 21, 112 S Ct 358, 116 L Ed 2d 301

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*** Private defendants who invoke state replevin, garnishment, and attachment statutes that are later declared to be invalid under the Federal Constitution, are not entitled to qualified immunity from a civil rights suit under 42 USCS § 1983 for invoking the state statutes, because
(1) § 1983 creates a species of tort liability that on its face admits of no immunities, (2) although certain government officials have been accorded absolute or qualified immunity from a § 1983 suit, based on common-law immunity, the United States Supreme Court will not recognize an immunity available at common law if § 1983's history or purpose counsel against applying immunity in § 1983 actions, and
(3) even if there were sufficient common-law support to conclude that private defendants in § 1983 suits should be entitled to a defense based on good faith or probable cause, private defendants still would not be entitled to the objectively determined qualified immunity from § 1983 suits which the Supreme Court has accorded government officials, because the special policy concerns mandating qualified immunity for public officials the necessity to preserve the officials' ability to serve the public good or to insure that talented candidates are not deterred by the threat of damage suits from entering public office are not applicable to private parties, as the public interest will not be unduly impaired if private individuals, as opposed to government officials performing discretionary functions, are required to proceed to trial to resolve their legal disputes; thus, a cattle-business partner and an attorney who assists the partner in filing against the business' second partner a complaint, under a state replevin statute that is later declared to be invalid under the Federal Constitution which complaint results in the seizure by a county sheriff of certain personal property of the second partner are not entitled to qualified immunity from a suit brought under § 1983 by the second partner when the first partner refuses to comply with a state court order to return the property to the second partner. (Rehnquist, Ch. J., and Souter and Thomas, JJ., dissented from this holding.) Wyatt v Cole, 504 US 158, 112 S Ct 1827, 118 L Ed 2d 504

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*** A municipality cannot be held liable under 42 USCS § 1983 on a respondeat superior theory, but this protection against liability does not encompass immunity from suit; unlike various government officials, municipalities do not enjoy immunity from suit, either absolute or qualified, under § 1983; thus, a municipality can be sued under § 1983, but it cannot be held liable unless a municipal policy or custom caused the constitutional injury. Leatherman v Tarrant County Narcotics Intelligence & Coordination Unit, 507 US 163, 113 S Ct 1160, 122 L Ed 2d 517

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*** State prosecutors are not entitled to absolute immunity from an accused's claim seeking damages for the prosecutors' alleged fabrication, during the preliminary criminal investigation of a child's rape and murder, of evidence indicating that a bootprint was from the accused's boot, which claim is brought under 42 USCS § 1983, which provides a private right of action against a person who, under color of state law, violates another person's federal rights where during the preliminary investigation, the prosecutors allegedly were performing essentially the same investigatory functions as were police officers and had not yet convened a special grand jury to investigate the case because
(1) the fact that the accused's injuries occurred during criminal proceedings is irrelevant to the question whether the fabrication of evidence is a function protected by absolute immunity;
(2) the prosecutors were not functioning as advocates for the state, which function has been held by the United States Supreme Court to be subject to absolute immunity from a § 1983 action, but as investigators, when they were endeavoring to determine whether the bootprint was made by the accused, since (a) the prosecutors do not contend that they had probable cause to arrest the accused or to initiate judicial proceedings before they convened a special grand jury, and (b) a prosecutor is not an advocate before the prosecutor has probable cause to have anyone arrested;
(3) in the absence of any authority that supports an argument that a prosecutor's fabrication of false evidence during the preliminary investigation of an unsolved crime was immune from liability at common law in 1871, when § 1983 was enacted, or at any prior date, such fabrication remains protected by only qualified immunity;
(4) it would be anomalous to grant prosecutors only qualified immunity when offering legal advice to police about an unarrested suspect, as the Supreme Court has done in a prior case, but to endow prosecutors with absolute immunity when conducting investigative work themselves in order to decide whether a suspect may be arrested; (5) the prosecutors' calling of a grand jury to consider the evidence produced by the prosecutors' investigative work does not retroactively transform that work from the administrative into the prosecutorial; and (6) when the functions of prosecutors and detectives are the same, the immunity that protects the two parties is also the same, where, if the police, under the guidance of the prosecutors, had solicited the allegedly fabricated testimony, the police would not be entitled to anything more than qualified immunity. (Kennedy, J., Rehnquist, Ch. J., and White and Souter, JJ., dissented from this holding.) Buckley v Fitzsimmons, 509 US 259, 113 S Ct 2606, 125 L Ed 2d 209

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*** A state prosecutor is not entitled to absolute immunity from an accused's claim seeking damages for the prosecutor's allegedly false statements at a press conference announcing the return of an indictment against the accused concerning a rape and murder, which claim is brought under 42 USCS § 1983 which provides a private right of action against a person who, under color of state law, violates another person's federal rights because (1) the fact that the accused's injuries occurred during criminal proceedings is irrelevant to the question whether the press conference is a function protected by absolute immunity; (2) when § 1983 was enacted in 1871, there did not exist a common-law absolute immunity for a prosecutor's out-of-court statements to the press; (3) at the press conference, the prosecutor did not act in the prosecutor's role as an advocate for the state, which role has been held by the United States Supreme Court to be entitled to absolute immunity from a § 1983 action, since (a) the conduct of a press conference does not involve the initiation of a prosecution, the presentation of a state's case in court, or the action preparatory for these functions, and (b) with respect to such a press conference, a prosecutor is in no different position from that of other executive officials who deal with the press, and for whom qualified immunity is the norm; and (4) although the prosecutor argues that policy considerations support extending absolute immunity to statements made to the press, (a) the Supreme Court does not have a license to establish immunities from § 1983 actions in the purported interests of public policy, (b) the presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties, and (c) even if policy considerations allowed the court to carve out new absolute immunities to liability under § 1983, there is little reason to suppose that qualified immunity would provide adequate protection to prosecutors in their provision of legal advice to the police where the Supreme Court has held in a prior case that such conduct is entitled to only qualified immunity yet would fail to provide sufficient protection in the context of a press conference. Buckley v Fitzsimmons, 509 US 259, 113 S Ct 2606, 125 L Ed 2d 209


All Federal & State Citing Cases____PRIVATE RIGHT OF ACTION:

*** With respect to being sued under 42 USCS § 1983, which provides a private right of action against a person who, under color of state law, violates another person's federal rights, most public officials are entitled to only qualified immunity that is, such officials are not subject to damages liability for the performance of their discretionary functions when their conduct does not violate clearly established federal statutory or constitutional rights of which a reasonable person would have known which immunity, in most cases, is sufficient to protect (1) officials who are required to exercise their discretion, and (2) the related public interest in encouraging the vigorous exercise of official authority. Buckley v Fitzsimmons, 509 US 259, 113 S Ct 2606, 125 L Ed 2d 209

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*** Acts which are undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial and occur in the course of the prosecutor's rule as an advocate for the state are entitled to the protections of absolute immunity from a suit seeking damages under 42 USCS § 1983, which provides a private right of action against a person who, under color of state law, violates another person's federal rights; such acts by a prosecutor include (1) the professional evaluation of evidence assembled by the police, and (2) appropriate preparation for presentation of the evidence at trial and before a grand jury after a decision to seek an indictment has been made. Buckley v Fitzsimmons, 509 US 259, 113 S Ct 2606, 125 L Ed 2d 209

All Federal & State Citing Cases PRIVATE RIGHT OF ACTION:

*** When a prosecutor functions as an administrator rather than as an officer of the court, the prosecutor is entitled to only qualified immunity from a suit seeking damages under 42 USCS § 1983, which provides a private right of action against a person who, under color of state law, violates another person's federal rights, qualified immunity representing the norm for executive officers, and there being a difference between an advocate's role which the United States Supreme Court has indicated to be subject to absolute immunity in evaluating evidence and interviewing witnesses as a prosecutor prepares for trial and a detective's role which the Supreme Court has indicated to be subject to only qualified immunity in searching for clues and corroboration that might give probable cause to recommend that a criminal suspect be arrested; a prosecutor who plans and executes a raid on a suspected weapons cache has no greater claim to complete immunity than do police officers allegedly acting under the prosecutor's direction, where, when a prosecutor performs the investigative functions normally performed by a detective or police officer, it is neither appropriate nor justifiable that for the same act, immunity should protect the one and not the other; a determination of probable cause to arrest a person does not guarantee a prosecutor absolute immunity from liability for all actions taken by the prosecutor after such a determination, because, even after such a determination, a prosecutor may engage in "police investigative work" that is entitled to only qualified immunity. (Kennedy, J., Rehnquist, Ch. J., and White and Souter, JJ., dissented in part from this holding.) Buckley v Fitzsimmons, 509 US 259, 113 S Ct 2606, 125 L Ed 2d 209

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*** Given that the doctrine of qualified immunity as applied to damages actions, under provisions such as 42 USCS § 1983, charging public officials with violation of a federal right shields such officials from such damages actions unless the officials' conduct was unreasonable in light of clearly established law, appellate review of a Federal District Court's qualified immunity dispositions is to be conducted in light of all relevant precedents, not simply those cited to or discovered by the District Court, because (1) the central purpose of affording such qualified immunity is to protect public officials from undue interference with their duties and from potentially disabling threats of liability; (2) a rule excluding precedents not mentioned in the District Court (a) would not aid this objective, in that the rule's operation would be unpredictable in advance of the District Court's adjudication, (b) would not further the interests on the other side of the balance in deterring public officials' unlawful actions and in compensating victims of such conduct, (c) would simply release defendants due to shortages in counsel's or the court's legal research or briefing, (d) could occasion appellate affirmation of incorrect legal results, and (e) could place defense counsel in a trying situation; (3) whether an asserted federal right was clearly established at a particular time, so that a public official who allegedly violated the right has no qualified immunity from suit, presents a question of law, not one of legal facts; (4) that question of law, like the generality of such questions, must be resolved de novo on appeal; and (5) a court engaging in review of a qualified immunity judgment should therefore use the court's full knowledge of the court's own and other relevant precedents. Elder v Holloway, 510 US 510, 114 S Ct 1019, 127 L Ed 2d 344

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*** In a 42 USCS § 1983 suit for damages and other relief against defendants including some individual officials, the individual defendants' qualified immunity turns on whether they violated clearly established federal law. Swint v Chambers County Comm'n, 514 US 35, 115 S Ct 1203, 131 L Ed 2d 60

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*** There is no congressional waiver of the Federal Government's sovereign immunity against awards of monetary damages for violations of § 504(a) of the Rehabilitation Act of 1973 (29 USCS § 794(a)), which prohibits discrimination on the basis of disability under any program or activity conducted by any executive agency of the Federal Government, because (1) the clarity of expression necessary to establish such a waiver is lacking in the text of § 504(a) and § 505(a)(2) of the Rehabilitation Act (29 USCS § 794a(a)(2)), which in providing that the remedies available for violations of Title VI of the Civil Rights Act of 1964 (42 USCS §§ 2000d et seq.), including monetary damages, are available for violations of § 504(a) "by any recipient of Federal assistance or Federal provider of such assistance" (a) makes no mention of programs or activities conducted by any executive agency, and (b) thus indicates congressional intent to treat federal executive agencies differently from other § 504(a) defendants for purposes of remedies; (2) the broad language of § 505(a)(1) of the Rehabilitation Act (29 USCS § 794a(a)(1)), in which Congress expressly waived sovereign immunity against certain remedies, including monetary damages, for violations of § 501 of the Rehabilitation Act (29 USCS § 791), suggests by comparison with § 505(a)(2) that Congress did not intend to treat all § 504(a) defendants alike with regard to remedies; (3) both 42 USCS § 1981a(a)(2), the provision of the Civil Rights Act of 1991 which makes damages available for certain violations of § 501, and § 505(b) of the Rehabilitation Act (29 USCS § 794a(b)), the attorneys' fees provision of the Rehabilitation Act, illustrate Congress' ability to craft a clear waiver of the government's sovereign immunity against particular remedies for violations of the Rehabilitation Act; (4) Congress is free to waive the government's sovereign immunity against liability without waiving its immunity from monetary damages awards; and (5) § 1003 of the Rehabilitation Act Amendments of 1986 (42 USCS § 2000d-7) which provides that remedies are available in a suit against a state for a violation of § 504 to the same extent as remedies are available for such a violation in a suit against any public or private entity other than the state (a) is susceptible of at least two interpretations other than one in which the public entities to which § 1003 refers would include federal executive agencies, which thus would be subject to the same remedies under § 504(a), including monetary damages, as are private entities, and (b) hence § 1003 is not so free from ambiguity that it can be concluded that Congress intended to subject the government to awards of monetary damages for violations of § 504(a). (Stevens and Breyer, JJ., dissented from this holding.) Lane v Pe na, 518 US 187, 116 S Ct 2092, 135 L Ed 2d 486

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*** The object of the "clearly established" rule for the qualified immunity of a public official from civil liability, under 42 USCS § 1983 or under Bivens v Six Unknown Named Agents of Federal Bureau of Narcotics (1971) 403 US 388, 29 L Ed 2d 619, 91 S Ct 1999, for deprivation of a federal constitutional right is not different from the requirement of fair warning as that requirement relates to whether law has been made sufficiently specific, for the purpose of validly applying 18 USCS § 242 to impose criminal liability for deprivation of a federal constitutional right; the fact that one has a civil-law role and the other a criminal-law role is of no significance, as both serve the same objective; in effect, the qualified immunity test is simply the adaptation of the fair warning standard to give officials and, ultimately, governments the same protection from civil liability and its consequences that individuals have traditionally possessed in the face of vague criminal statutes; thus, to require something clearer than "clearly established" is to call for something beyond "fair warning." United States v Lanier, 520 US 259, 117 S Ct 1219, 137 L Ed 2d 432

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*** With respect to the "clearly established" rule for qualified immunity, civil liability may be imposed on a public officer, under 42 USCS § 1983 or under Bivens v Six Unknown Named Agents of Federal Bureau of Narcotics (1971) 403 US 388, 29 L Ed 2d 619, 91 S Ct 1999, for deprivation of a federal constitutional right if, but only if, in the light of pre-existing law the unlawfulness under the Federal Constitution is apparent. United States v Lanier, 520 US 259, 117 S Ct 1219, 137 L Ed 2d 432

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*** Even if there has never been a 42 USCS § 1983 case accusing welfare officials of selling foster children into slavery, it does not follow that if such a case arose, the officials would be immune from damages under § 1983 or criminal liability under 18 USCS § 242. United States v Lanier, 520 US 259, 117 S Ct 1219, 137 L Ed 2d 432

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*** While the defense of qualified immunity has its source in 42 USCS § 1983 a federal statute the ultimate purpose of such defense is to protect the state and its officials from overenforcement of federal rights. Johnson v Fankell, 520 US 911, 117 S Ct 1800, 138 L Ed 2d 108

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*** A qualified immunity defense exists for both federal officials sued under the implied cause of action asserted in Bivens v Six Unknown Named Agents of Federal Bureau of Narcotics (1971) 403 US 388, 29 L Ed 2d 619, 91 S Ct 1999, and state officials sued under 42 USCS § 1983; in both situations, officials performing discretionary functions generally are shielded from liability for civil damages insofar as the officials' conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known; the qualified immunity defense is valuable to officials asserting it because (1) if such defense is found applicable at any stage of the proceedings, the defense determines the outcome of the litigation by shielding the official from damages liability, (2) when the complaint fails to allege a violation of clearly established law or when discovery fails to uncover evidence sufficient to create a genuine issue whether the defendant committed such a violation, the qualified immunity defense provides the defendant with an immunity from the burdens of trial as well as a defense to liability, and (3) when a case can be dismissed on the pleadings or in an early pretrial stage, the qualified immunity defense provides officials with protection from the burdens of broad-ranging discovery. Johnson v Fankell, 520 US 911, 117 S Ct 1800, 138 L Ed 2d 108

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*** Even though state prison guards who work directly for the government have been extended a qualified immunity from suit under 42 USCS § 1983, two prison guards, who are employees of a private firm that manages a state correctional center, are not entitled to qualified immunity from a § 1983 suit by a prisoner at the center, because in the context of the case at hand, in which a private firm, which is systematically organized to assume the major lengthy administrative task of managing an institution with limited direct supervision by the government, undertakes that task for profit and potentially in competition with other firms an examination of history and of the purposes underlying government-employee immunity reveal nothing special enough about the job itself that would warrant providing these private prison guards with a governmental immunity, for (1) history does not reveal a firmly rooted tradition of immunity applicable to privately employed prison guards; and (2) as to underlying purposes, (a) a purely functional approach as to whether qualified immunity is available at all would present difficulties, (b) the most important special government immunity-producing concern unwarranted timidity is less likely to be present, or at least is not special, where, as in the case at hand, the large, multistate private firm that operates the prison is subject to ordinary marketplace pressures, while government employees typically act within a different system, (c) under the state's prison-privatization laws, such privatization helps to insure that talented candidates are not deterred by the threat of damages suits, and (d) under the circumstances, the threat of distracting private prison guards from their duties is not enough virtually by itself to justify providing an immunity. (Scalia, J., Rehnquist, Ch. J., and Kennedy and Thomas, JJ., dissented from this holding.) Richardson v McKnight, 521 US 399, 117 S Ct 2100, 138 L Ed 2d 540

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*** The risk of distraction cannot be sufficient grounds alone for a qualified immunity from suit under 42 USCS § 1983, because the United States Supreme Court's qualified-immunity cases do not contemplate the complete elimination of lawsuit-based distractions. Richardson v McKnight, 521 US 399, 117 S Ct 2100, 138 L Ed 2d 540

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*** Private actors are not automatically extended a governmental immunity from suit under 42 USCS § 1983 that is, immunity does not automatically follow § 1983 liability. Richardson v McKnight, 521 US 399, 117 S Ct 2100, 138 L Ed 2d 540

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*** The conduct of a county prosecuting attorney in making allegedly false statements of fact in a certification for determination of probable cause a document that summarizes the evidence supporting an application for an arrest warrant is not protected by the doctrine of absolute prosecutorial immunity, where (1) although state law, in compliance with the command of the Federal Constitution's Fourth Amendment, requires an arrest warrant to be supported by either an affidavit or sworn testimony establishing the grounds for issuing the warrant, neither federal nor state law makes it necessary for the prosecutor to make such certification, (2) even if the prosecutor may be following a practice that has been routinely employed by the prosecutor's colleagues and predecessors, the practice is not prevalent in other parts of the country and is not mandated by law in the county, (3) the prosecutor, in making the certification, thus performs a function of a witness rather than an advocate, and (4) denying the prosecutor absolute immunity will not have a chilling effect on prosecutors in the administration of justice; thus, 42 USCS § 1983 may, under some circumstances, provide a damages remedy against such a prosecutor insofar as the prosecutor performs the function of a complaining witness. Kalina v Fletcher, 522 US 118, 118 S Ct 502, 139 L Ed 2d 471

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*** Local legislators are absolutely immune from suit under 42 USCS § 1983 for their legislative activities, as (1) the common law at the time that § 1983 was enacted deemed local legislators to be absolutely immune from suit for such activities; (2) the rationales for according absolute immunity to federal, state, and regional legislators apply with equal force to local legislators, for (a) regardless of the level of government, the exercise of legislative discretion should not be inhibited by judicial interference or distorted by the fear of personal liability, (b) the time and energy required to defend against a lawsuit are of particular concern at the local level, where the part-time citizen-legislator remains commonplace, (c) the threat of liability may significantly deter service in local government, where prestige and pecuniary rewards may pale in comparison to the threat of civil liability, and (d) some deterrents to legislative abuse may be greater at the local level than at other levels of government. Bogan v Scott-Harris, 523 US 44, 118 S Ct 966, 140 L Ed 2d 79

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*** With respect to a city ordinance eliminating a city agency and the position of the agency's administrator pursuant to a proposed city budget, the actions of the city council's vice president in voting for the ordinance and the actions of the city's mayor in introducing the budget and signing the ordinance into law are protected by absolute immunity from civil liability under 42 USCS § 1983, regardless of the subjective intent motivating such actions, where (1) the vice president's actions are legislative in form; (2) the mayor's actions also are formally legislative, even though the mayor is an executive official, as such actions are integral steps in the legislative process; and (3) the ordinance is legislative in substance, as (a) the ordinance reflects a discretionary policymaking decision implicating the city's budgetary priorities and the services provided to the city's constituents, (b) the ordinance involves the termination of a position, which, unlike the hiring or firing of a particular employee, may have prospective implications that reach well beyond the particular occupant of the office, and (c) the city council, in eliminating the agency, governs in a field where legislators traditionally have power to act. Bogan v Scott-Harris, 523 US 44, 118 S Ct 966, 140 L Ed 2d 79

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*** A prisoner alleging in a suit under 42 USCS § 1983 that a corrections officer retaliated for the prisoner's exercise of free speech rights under the Federal Constitution's First Amendment by deliberately misdirecting the prisoner's belongings that were to be sent to a facility to which the prisoner had been transferred is not required to adduce clear and convincing evidence of improper motive in order to defeat the officer's summary judgment motion, because (1) it would not be unfair to hold the officer accountable for actions that the officer knew, or should have known, violated the prisoner's constitutional rights; (2) the proper balance does not justify a judicial revision of the law to bar claims that depend on proof of a government official's motive; (3) existing law already prevents the narrow element of unconstitutional motive from automatically carrying a plaintiff to trial, where (a) the qualified immunity standard for government officials eliminates all motive-based claims in which the official's conduct does not violate clearly established law, (b) even when the general rule has long been clearly established, the substantive legal doctrine on which a plaintiff relies may facilitate summary judgment, as (i) there may be doubt as to the illegality of the official's particular conduct, and (ii) at least with certain types of claims, proof of an improper motive is not sufficient, without evidence of causation, to establish a constitutional violation, and (c) various procedural mechanisms already enable trial judges to weed out baseless claims that feature a subjective element; (4) without precedential grounding, a change in the burden of proof for an entire category of claims would stray from the traditional limits on judicial authority, where (a) neither the text of § 1983 or any other federal statute, nor the Federal Rules of Civil Procedure, provides any support for imposing the "clear-and-convincing" burden of proof on plaintiffs either at the summary judgment stage or at trial, (b) such a burden lacks any common-law pedigree and undermines the purpose of § 1983 to provide a remedy for the violation of federal rights, (c) the United States Supreme Court has consistently declined similar invitations to revise established rules that are separate from the qualified immunity defense for reasons that apply with equal force to the imposition of a clear-and-convincing burden of proof in cases alleging unconstitutional motive, (d) questions regarding pleading, discovery, and summary judgment are most frequently and most effectively resolved either by the rule-making process or the legislative process, and (e) even if it is assumed that a perceived problem with suits by inmates could justify the creation of new rules by federal judges, Congress has already fashioned special rules to cover these cases in the Prison Litigation Reform Act, 110 Stat 1321; (5) the statute draws no distinction between constitutional claims that require proof of an improper motive and those that do not; and (6) given the wide variety of civil rights and "constitutional tort" claims that trial judges confront, broad discretion in the management of factfinding may be more useful and equitable to all parties than a categorical clear-and-convincing requirement. (Rehnquist, Ch. J., and O'Connor, Scalia, and Thomas, JJ., dissented from this holding.) Crawford-El v Britton, 523 US 574, 118 S Ct 1584, 140 L Ed 2d 759

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***
To resolve cases in which the defense of qualified immunity is raised to an action under 42 USCS § 1983 for the deprivation of a federal constitutional right, the better approach, rather than addressing first the qualified immunity issue, is to determine first whether the plaintiff has alleged a deprivation of a constitutional right at all; normally, it is only then that a court should ask, with respect to qualified immunity, whether the right allegedly implicated was clearly established at the time of the events in question. County of Sacramento v Lewis, 523 US 833, 118 S Ct 1708, 140 L Ed 2d 1043

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In order for a plaintiff to prevail in a 42 USCS § 1983 action for civil damages from a government official performing discretionary functions, the defense of qualified immunity that the United States Supreme Court's cases have recognized requires that the official be shown to have violated clearly established statutory or constitutional rights of which a reasonable person would have known; thus, a court must (1) determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and (2) if so, proceed to determine whether that right was clearly established at the time of the alleged violation; also, the Supreme Court in holding that the right, under the Federal Constitution's Fourteenth Amendment, that has been asserted by an attorney in a § 1983 claim against two county prosecutors was not violated in the circumstances of the case at hand will pretermit the question whether such a right was "clearly established" as of a given day. Conn v Gabbert, 526 US 286, 119 S Ct 1292, 143 L Ed 2d 399

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Even though a "media ride-along" in which representatives of a newspaper accompanied a team of federal and county police officers during an April 16, 1992, attempt to execute arrest warrants in a private home violated the Federal Constitution's Fourth Amendment, the officers are entitled to the defense of qualified immunity from damages liability, under Bivens v Six Unknown Named Agents of Federal Bureau of Narcotics (1971) 403 US 388, 29 L Ed 2d 619, 91 S Ct 1999, and under 42 USCS § 1983, to the home's residents for the violation, because the Fourth Amendment right in question was not clearly established on the date of the ride-along, as (1) even though it was clearly established that the Fourth Amendment's protections applied to the actions of police, it was not unreasonable for the officers to have believed that bringing media observers along during the execution of the warrants (even in a home) would be lawful, for (a) the officers had warrants, and (b) accurate media coverage of police activities serves an important public purpose; (2) media ride-alongs of one sort or another had apparently become a common police practice; (3) in April 1992, (a) there were no judicial opinions holding that this practice became unlawful when a home was entered, and (b) even some more general law as to third parties accompanying police on entries into homes was not clearly established in the pertinent jurisdiction; (4) the federal officers relied on a policy which explicitly contemplated that media representatives who engaged in ride-alongs might enter private homes with cameras as part of fugitive apprehension arrests; (5) the county sheriff's department also had a ride-along program which did not expressly prohibit media representatives' entry into private homes; and (6) given the undeveloped state of the law, the officers could not be expected to predict the future course of constitutional law. (Stevens, J., dissented from this holding.) Wilson v Layne, 526 US 603, 119 S Ct 1692, 143 L Ed 2d 818

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Government officials performing discretionary functions generally are (1) granted a qualified immunity, and (2) shielded from liability for civil damages insofar as the officials' conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known; the qualified immunity analysis is identical for a cause of action under either Bivens v Six Unknown Named Agents of Federal Bureau of Narcotics (1971) 403 US 388, 29 L Ed 2d 619, 91 S Ct 1999, or 42 USCS § 1983; a court evaluating a claim of qualified immunity must (1) determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and (2) if so, proceed to determine whether that right was clearly established at the time of the alleged violation; under the "clearly established" test, the question whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time that the action was taken; for such purposes, the contours of the right must be sufficiently clear that a reasonable official would understand that what the official is doing violates that right; this is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent; also, the right allegedly violated must be defined at the appropriate level of specificity before a court can determine if the right was clearly established. Wilson v Layne, 526 US 603, 119 S Ct 1692, 143 L Ed 2d 818

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The threshold inquiry which a court must undertake in a qualified-immunity analysis with respect to a plaintiff's 42 USCS § 1983 claim for damages is whether the plaintiff's allegations, if true, establish a federal constitutional violation. Hope v Pelzer (US) 122 S Ct 2508, 153 L Ed 2d 666

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With respect to damages claims against state officers under 42 USCS § 1983, qualified immunity under the standard as to whether the officers have violated clearly established federal statutory or constitutional rights of which a reasonable person would have known operates to insure that before the officers are subjected to suit, the officers are on notice their conduct is unlawful.
For a federal constitutional right to be clearly established, the right's contours must be sufficiently clear that a reasonable official would understand that what the official is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but in the light of pre-existing law, the unlawfulness must be apparent. Moreover, officers sued in a civil action for damages under § 1983 have the same right to fair notice as do criminal defendants charged with the offense defined in 18 USCS § 242, which makes it a crime for a state official to act willfully and under color of law to deprive a person of rights protected by the Federal Constitution. For such purposes, officials can be on notice that their conduct violates established law even in novel factual circumstances, as even though earlier cases involving "fundamentally similar" or "materially similar" facts can provide especially strong support for a conclusion that the law is clearly established such cases are not necessary to such a finding. Also, in applying the objective qualified-immunity test of what a reasonable officer would understand, the significance of federal judicial precedent is a function in part of the federal judiciary's structure. Hope v Pelzer (US) 122 S Ct 2508, 153 L Ed 2d 666

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RESEARCH REFERENCES:


15 Am Jur 2d, Civil Rights §§ 99, 102, 105-109
Supreme Court's construction of Civil Rights Act of 1871 (42 USCS § 1983) providing private right of action for violation of federal rights. 43 L Ed 2d 833.
Supreme Court's views as to who is "person" under civil rights statute (42 USCS § 1983) providing private right of action for violation of federal rights. 105 L Ed 2d 721.
Supreme Court's views as to judge's liability for damages. 116 L Ed 2d 947.
Supreme Court's views as to application or applicability of doctrine of qualified immunity in action under 42 USCS § 1983, or in Bivens action, seeking damages for alleged civil rights violations. 116 L Ed 2d 965.
When is prosecutor entitled to absolute immunity from civil suit for damages under 42 USCS § 1983: post-Imbler cases. 67 ALR Fed 640.
Availability of qualified immunity defense to private parties in action under 42 USCS § 1983. 95 ALR Fed 82.

CROSS REFERENCES:


Immunity of judges, generally, see Judges @ 14-17.

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