NewsTarget.com
Originally published November 19 2007
Following the State of Maryland's threats against parents who refuse to have their children vaccinated, children were herded into a Price George County courthouse being guarded by armed personnel with attack dogs. Inside, the children were forcibly vaccinated, many against their will, under orders from the State Attorney General, various State Judges and the local School Board Director, all of whom illegally conspired to threaten parents with imprisonment if they did not submit their children to vaccinations.
The State of Maryland has now turned to Gestapo tactics to force its medical will upon the People, stripping parents of any right to decide how they wish to protect their own children from infectious disease. Health authorities there have already announced their intent to essentially kidnap parents and throw them in jail, removing them from their children for up to thirty days if they continue to refuse to have their children vaccinated. This will all be conducted at gunpoint, with armed personnel and attack dogs at the ready, making sure nobody steps out of line, and suppressing any attempt at public dissent against the Orwellian vaccination policies.
The entire campaign against these parents is blatantly illegal. There is no law in Maryland requiring the vaccination of children, thus parents who refuse to do so may not be legally charged with violating any law. Instead, Maryland health and school authorities are using Gestapo-like tactics, threatening to charge the parents with child truancy violations, criminalizing them for daring to protect their children from the dangerous chemicals found in vaccines (including thimerosal, a chemical additive containing a neurotoxic form of mercury).
The desperation of organized medicine is becoming increasingly apparent
As more and more parents are becoming informed about the dangers of vaccinations and their link to autism, state health authorities are increasingly turning to "Gunpoint Medicine" to force the People to submit to the poisons of conventional medicine. Parents who attempt to save their children from deadly chemotherapy chemicals are being arrested and having their children kidnapped by Child Protective Services.
(see http://www.newstarget.com/Abraham_Cherrix.html )
Oncologists who used to be armed only with radiation machines and chemotherapy injectors and now arming themselves with U.S. Marshals and other local law enforcement authorities who are using loaded firearms to enforce "the will of the State" against parents who resist.
Even the American Association of Physicians and Surgeons (AAPS) announced its strong opposition to the Maryland "Gunpoint Medicine" vaccination campaign. In a press release published Nov. 16, the AAPS states:
The Association of American Physicians and Surgeons today condemned the “vaccine roundup” executed in Prince George’s county Maryland this week, and promised to do everything it can to support parents who refuse to immunize their children.
“This power play obliterates informed consent and parental rights,” said Kathryn Serkes, director of policy for the Association of American Physicians and Surgeons (AAPS), one of the few national physician groups that refuse corporate funding from pharmaceutical companies.
In a scenario reminiscent of cattle round-ups, the state’s attorney has issued summons to more than 1600 parents of children who have not provided certificates of immunization for their children. But instead of toting a cattle prod, this state’s attorney chooses to wield a syringe to keep the “herd” in line.Read the rest of the press release at:
http://www.aapsonline.org/press/nr-11-16-07.php
Gunpoint Medicine: Why drug pushers must now rely on Gestapo tactics
Conventional (pharmaceutical) medicine is the only system of medicine in the world that is so unpopular with informed consumers that it must be administered at the barrel of a gun. There is no other system of medicine anywhere in the world that resorts to such tactics to recruit patients.
At the Nov. 17th event in Maryland, activists Jim Moody and Kelly Ann Davis from SafeMinds (http://www.safeminds.org/) were able to get in front of TV news cameras and voice their opposition to the coerced vaccination policy. Yet, amazingly, most parents just lined up like cattle ready to be branded, not bothering to question the sanity or legality of the very system in which they were now agreeing to participate.
A health freedom blog called Center for the Common Interest (http://www.commoninterest.info/) also covered the event, and it reports that a local activist named Donovan Hubbard videotaped the event and plans to make the video available online.
(NewsTarget would like to contact Donovan and / or publicize his video. If you know of a way we can contact him, please call us at (520) 232-9300 to let us know...)
What's next for Gunpoint Medicine?
As the truth continues to emerge about the extreme dangers of vaccinations and pharmaceuticals, Big Pharma is becoming increasingly desperate to coerce the public into relying on its products. It is now working closely with state authorities (including Governors of several states) to mandate the use of vaccinations on young children. This results in the criminalization of parents who refuse to subject their children to these dangerous chemicals.
In effect, Big Pharma is hoping to turn natural health followers into criminals.
The FDA has already criminalized nutritional supplement companies who dare to tell the truth about the health benefits of their supplements.
Read the true history of armed FDA raids on vitamin companies here: http://www.newstarget.com/021791.html
Next, parents who refuse to subject their children to the chemical pharmaceuticals proposed by Big Pharma will be criminalized, rounded up and incarcerated for "refusing to comply with public health policy." This is all being done by the State in the name of "protecting the children" from their own natural health parents.
(Insane, isn't it, to think that protecting your child from toxic chemicals is now a criminal act in the United States?)
The end game of all this is to apply Gunpoint Medicine tactics to everyone: Adults and senior citizens included. Anyone suffering from high cholesterol, for example, who does not submit to Big Pharma's statin drugs could be arrested, strapped to a table and medicated against their will. People with cancer could be arrested for choosing to treat that cancer with safe and effective botanical medicines instead of patented, high-profit Big Pharma drugs. If you think the prisons are full enough right now from all the arrests for marijuana possession and other victimless crimes, just wait until the State starts arresting all the natural health moms and dads across the country who refuse to participate in the utterly insane and extremely harmful system of medicine that now dominates U.S. health care today.
The State is very clear about medicine: If you want to remain a free citizen, you must submit to the synthetic drugs made by the very same corporations that now control government health regulators.
Any person who resists such "treatments" will be branded a threat to public health --
A designation just beneath "terrorist" in the eyes of many government bureaucrats.
As such, they believe there is no limit to the level of force they may use to coerce such people into submitting to Big Pharma's chemicals. Today, it's armed guards with attack dogs. Tomorrow, it might be water boarding or other torture methods. Think that's impossible? Think again: Just five years ago, nobody in their right mind would have thought that parents who did not want to get their children vaccinated would end up in prison, their children kidnapped by state authorities and forced to subject themselves to dangerous chemical injections at gunpoint. Yet that is precisely what is happening right now in the state of Maryland. It happened on Saturday, in fact.
Where is the outrage?
What's most interesting about this issue of using the threat of imprisonment to force vaccinations upon children is not necessarily who is speaking out against it, but who has chosen to remain silent.
The American Medical Association, for example, has said nothing in opposition to the policy. Neither has the Food and Drug Administration. Where is the outrage from the Maryland Hospital Association? None of these organizations seem to have a problem with Gunpoint Medicine. The idea of rounding up parents and coercing their children into receiving injections of toxic chemicals does not seem to bother these organizations. And why should it? All of these organizations are closely tied to Big Pharma. They're all in favor of vaccinations for all, it seems, and I have no doubt that some individuals in these organizations (especially the AMA) are strongly in favor of the Gunpoint Medicine coerced vaccination policy being played out in Maryland right now.
Organized medicine believes the People are too stupid to be allowed to make their own health decisions. Bureaucrats and physicians should be the ones making these decisions, we're told, and any person who disagrees with such decisions should be labeled a criminal, arrested and prosecuted. This is no exaggeration. It is, in fact, a shockingly accurate description of Maryland's current vaccination policy.
It wasn't too long ago that Americans would have stood up and rallied against this kind of medical tyranny. The major news networks would have denounced Maryland's vaccination policy with strong language and harsh accusations. People would have been marching in the streets, demanding their health freedom. But today, it's a different America. The People are drugged up on pharmaceuticals and dosed on fluoride. They're too intoxicated to think straight, and they're frightened into submission by a fear-based government that invokes domestic tyranny at every opportunity to control and manipulate the People into doing whatever it wants.
The "free" America we all once knew is long gone, and it has been replaced with The United States of Corporate America, where police tactics are now used to enforce hazardous public health policies, and the people who run the State no longer think there's anything wrong with rounding up the population at gunpoint and performing large-scale medical experiments on their children. That's what modern vaccines are, after all: A grand medical experiment whose effects will only become known after a generation of mass poisoning has come and gone.
Original Article and disclaimer ..
Children herded like cattle into Maryland courthouse for forced vaccinations as armed police and attack dogs stand guard
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Tuesday, November 20, 2007
Monday, November 19, 2007
Bipolar Kid or Bad Parents?
It's so funny that I came accross this article now after I know so much more about Drugging our children into a stupor/suicide/or Homicide!
Nearly 25 years ago I had an a acquaintance who had two children that I considered at the time to be perfectly normal children under five active fun and small tornados when they were bored -NORMAL HEALTHY CHILDREN!
I only had one child at the time and I never understood what their mothers problem was, she complained day in and day out about how difficult her kids were.
I could'nt see it but what I did notice was that this woman was a fat lazy woman who herself didn't have the energy to deal with these two beautiful active children.
She was somewhat related to me so I found myself in her company more often that I would have if I were given the choice. Forgive me but she was [and probably still is] a whinny- woe is me- kind of person and I have no tolerance for that kind of person.
Anywho, one day the kids seemed different to me, I noticed they were lethargic compared to the children I had known and loved, so I inquired of the mother about what I noticed.
Her reply still forms knots in my stomach, she said "I couldn't deal with them anymore-the Dr put them on [insert name of psychotropic drugs- I can't remember which one it was]"
That was the last time I was in her company, I refused to sit around watching those children sluring their words so that their mother could sit on her fat &%^$ and not chase after them.
So why am I sharing this almost 25 years later? I guess I am feeling guilty that I didn't do anything to help those kids, I didn't try hard enough, I barely stated to their mother that I felt it was HER with the problem and not her children- however instead of doing more I walked away. I believe I have forgiven myself for that now, but thinking of that time in my life and what those children had to endure at the hands of thier lazy mother and thier over zelous Dr, always makes me angry.
Sad part is recently I came accross another mother that is doing the same thing to her beautiful son, and it makes me want to vomit, because I do not know this mother well enough to say anything to her about her inabililty to understand what it takes to raise a pre teen who is the victim of a recent divorce where both of his parents are severely dysfuntional.
This child needs HIS PARENTS in therapy HE DOES NOT NEED TO BE MEDICATED!
Ehhhhh, if I could control others actions the world would be a much better place, but I can't so I do what I can and pray these sysfuntional parents see the light before it's to late.
Pittsburgh Post Gazette
Bipolar kids or bad parents?
At the urging of parents, doctors are medicating far too many kids who just need a better upbringing, according to Dr. Elizabeth J. Roberts who is a child and adolescent psychiatrist and the author of "Should You Medicate Your Child's Mind?"
Sunday, November 18, 2007
On Dec. 13, 2006, 4-year-old Rebecca Riley died, drowning in her own lung secretions. Her death was the direct result of psychiatric medications which had been prescribed to her for a presumed diagnosis of bipolar disorder -- a diagnosis first given to her when she was only 2 years old.
In September 2007, researchers at Columbia University reported that there had been a 40-fold increase in the number of children diagnosed with bipolar disorder from 1994 to 2003 -- an increase which has shown no signs of slowing.
Worse than the current frenzy to diagnose children with bipolar disorder is the practice of medicating kids as young as 2 with the kinds of psychiatric medications that were once prescribed only to psychotic adults. The shocking reality is that the use of these potent anti-psychotic drugs in children increased more than 500 percent between 1993 and 2002.
This dramatic rise in childhood bipolar disorder has spurred a raging debate in the mental health field. Some psychiatrists insist that this incredible increase is entirely due to the identification of mentally ill children who had been previously overlooked.
Yet a 4,000 percent increase in childhood mental illness, specifically bipolar disorder, is simply implausible and difficult to justify based solely on improved diagnostic techniques. To the contrary, in the 30-plus years that I have been treating, educating and caring for children -- half of that time as a child psychiatrist -- I have found that the approach to diagnostics in psychiatry clearly has deteriorated over time, not improved.
There was a time when doctors insisted on hours of evaluation with a child and his parents before venturing a psychiatric diagnosis or prescribing a medication. Today many of my colleagues brag that they can complete an initial assessment of a child and write a prescription in less than 20 minutes. Many parents have told me it took a previous doctor less than five minutes to diagnose and medicate their child.
How, then, is it possible that in 2007 doctors are now able to identify hundreds of thousands of previously missed cases of bipolar disorder in children by reducing the time they spend with patients from multiple hours to just a few minutes?
On the other hand, there simply is no possible way that the number of children who actually have bipolar disorder has increased from approximately 20,000 to 800,000 in a nine-year period. Yet the arguments of skeptics are being dismissed by academics in psychiatry. Research psychiatrists appear to be more invested in defending their research conclusions -- funded by pharmaceutical companies -- than engaging in a meaningful discussion to examine these preposterous demographics.
What I find more astounding than the claim that there are 800,000 American children with bipolar disorder is the fact that there are that many children whose conduct is so aberrant that their parents are seeking psychiatric treatment for them.
The symptoms, which are regarded as evidence of bipolar disorder, usually are what most people recognize as ordinary belligerence. Children who have anger outbursts, who refuse to go to bed, who are moody and self-centered under the current standard of care in child psychiatry are being diagnosed with bipolar disorder. To most rational human beings, these behaviors describe an ill-mannered, immature and poorly disciplined child. Nonetheless, the temper tantrums of belligerent children are increasingly being characterized by doctors as the mood swings of bipolar disorder.
The over-indulgent parenting practices of the past 20 years have created a generation of dysfunctional children who are becoming increasingly more entitled, defiant and oppositional. In a poll by Associated Press-Ipsos, 93 percent of people surveyed said that today's parents are not doing a good job when it comes to teaching their kids to behave. According to Dan Kindlon, a Harvard psychologist, 50 percent of the parents he interviewed described themselves as more permissive than their parents had been.
The permissive parents of spoiled children seek refuge from blame by using the excuse that their child's angry outbursts are the result of a chemical imbalance. Since a psychiatric condition is completely beyond a parent's control, a diagnosis of bipolar disorder is the perfect alibi. Once a child has been diagnosed with bipolar disorder, a parent feels absolved of guilt or responsibility for the child's misbehavior and therefore, the parents' discipline practices cannot be called into question.
Parents looking for a psychiatric explanation for their child's misbehavior will find an abundance of support in the media and on the Web for the conclusion that their child's temper tantrums are due to a psychiatric disease rather than the result of bad parenting. Psychiatrists, for their part, are more than willing to accept, without question, the assessment offered by a parent. Doctors have found it easier and less contentious to comply with a parent's wish to have their child diagnosed with a psychiatric condition than to confront the parent with the notion that their own weak parenting is the root cause of the child's aberrant behavior.
Using the diagnosis of bipolar disorder, doctors then justify the sedation of these children with powerful psychiatric drugs. Even though some children treated with anti-psychotics may be temporarily sedated, their belligerent attitude continues unchanged. Of the many children I treat every year who had been previously diagnosed with bipolar disorder, not one of them stopped throwing tantrums after being treated with psychiatric medications. Yet doctors continue to misdiagnose and overmedicate children to appease frustrated parents in spite of the many serious, permanent or even lethal side effects.
Tragically, as in the death of Rebecca Riley, her parents administered the multiple medications prescribed by their psychiatrist for Rebecca's "bipolar disorder" until the meds killed her. A few weeks ago, in an interview on 60 Minutes, Rebecca's mother told Katie Couric that she now believes that her four-year-old daughter had been misdiagnosed, had never been bipolar, and that Rebecca was simply mischievous.
When it comes to misdiagnosing and overmedicating children, doctors have an unwitting, though not unwilling, accomplice -- the parent. Ultimately, it is the parent who is the gatekeeper for their child's health-care delivery. It is the parent who pursues psychiatric treatment for their child, fills the prescriptions and administers the medications. Parents have a duty to protect their children from the folly of this disastrous approach to childhood behavior problems.
Instead of grooming, feeding and educating the next generation of Americans to be the fittest, brightest, most competent contributors on the planet, we have indulged, placated and spoiled our children into dysfunctional misfits. We are teaching our children to use a psychiatric diagnosis to excuse their antisocial behaviors. This will inevitably lead to a greater reliance on psychiatric medications, which unfortunately do not endow an individual with improved self-control or maturity.
Under the guise of treating childhood bipolar disorder, the spoiling of American children not only undermines their healthy social development, but it also puts them at great risk for the serious medical complications inherent in the use of psychiatric medications, including death.
The End
As a closing note I need to say, if anyone spends any time on this blog getting to know the author [Me] it will become clear that I have issues with abusing our children in any way shape or form. I have major issues with child anything but protective services making money for the government incentives causing them to tell parents [via the threat of taking the child] that they can-not dicipline their children.
What are we left with?
Wake up america we are left with drugged children that only needed some guidance, dicipline lots of love and BOTH parents in thier lives.
These issues are all related and this is why I rant about divorce, the system, DV, child anything but protective services, drugging our children, and how the system parenting our children is guaranteed to leave us with a dysfuntional future generation.
God help us all!
Nearly 25 years ago I had an a acquaintance who had two children that I considered at the time to be perfectly normal children under five active fun and small tornados when they were bored -NORMAL HEALTHY CHILDREN!
I only had one child at the time and I never understood what their mothers problem was, she complained day in and day out about how difficult her kids were.
I could'nt see it but what I did notice was that this woman was a fat lazy woman who herself didn't have the energy to deal with these two beautiful active children.
She was somewhat related to me so I found myself in her company more often that I would have if I were given the choice. Forgive me but she was [and probably still is] a whinny- woe is me- kind of person and I have no tolerance for that kind of person.
Anywho, one day the kids seemed different to me, I noticed they were lethargic compared to the children I had known and loved, so I inquired of the mother about what I noticed.
Her reply still forms knots in my stomach, she said "I couldn't deal with them anymore-the Dr put them on [insert name of psychotropic drugs- I can't remember which one it was]"
That was the last time I was in her company, I refused to sit around watching those children sluring their words so that their mother could sit on her fat &%^$ and not chase after them.
So why am I sharing this almost 25 years later? I guess I am feeling guilty that I didn't do anything to help those kids, I didn't try hard enough, I barely stated to their mother that I felt it was HER with the problem and not her children- however instead of doing more I walked away. I believe I have forgiven myself for that now, but thinking of that time in my life and what those children had to endure at the hands of thier lazy mother and thier over zelous Dr, always makes me angry.
Sad part is recently I came accross another mother that is doing the same thing to her beautiful son, and it makes me want to vomit, because I do not know this mother well enough to say anything to her about her inabililty to understand what it takes to raise a pre teen who is the victim of a recent divorce where both of his parents are severely dysfuntional.
This child needs HIS PARENTS in therapy HE DOES NOT NEED TO BE MEDICATED!
Ehhhhh, if I could control others actions the world would be a much better place, but I can't so I do what I can and pray these sysfuntional parents see the light before it's to late.
Pittsburgh Post Gazette
Bipolar kids or bad parents?
At the urging of parents, doctors are medicating far too many kids who just need a better upbringing, according to Dr. Elizabeth J. Roberts who is a child and adolescent psychiatrist and the author of "Should You Medicate Your Child's Mind?"
Sunday, November 18, 2007
On Dec. 13, 2006, 4-year-old Rebecca Riley died, drowning in her own lung secretions. Her death was the direct result of psychiatric medications which had been prescribed to her for a presumed diagnosis of bipolar disorder -- a diagnosis first given to her when she was only 2 years old.
In September 2007, researchers at Columbia University reported that there had been a 40-fold increase in the number of children diagnosed with bipolar disorder from 1994 to 2003 -- an increase which has shown no signs of slowing.
Worse than the current frenzy to diagnose children with bipolar disorder is the practice of medicating kids as young as 2 with the kinds of psychiatric medications that were once prescribed only to psychotic adults. The shocking reality is that the use of these potent anti-psychotic drugs in children increased more than 500 percent between 1993 and 2002.
This dramatic rise in childhood bipolar disorder has spurred a raging debate in the mental health field. Some psychiatrists insist that this incredible increase is entirely due to the identification of mentally ill children who had been previously overlooked.
Yet a 4,000 percent increase in childhood mental illness, specifically bipolar disorder, is simply implausible and difficult to justify based solely on improved diagnostic techniques. To the contrary, in the 30-plus years that I have been treating, educating and caring for children -- half of that time as a child psychiatrist -- I have found that the approach to diagnostics in psychiatry clearly has deteriorated over time, not improved.
There was a time when doctors insisted on hours of evaluation with a child and his parents before venturing a psychiatric diagnosis or prescribing a medication. Today many of my colleagues brag that they can complete an initial assessment of a child and write a prescription in less than 20 minutes. Many parents have told me it took a previous doctor less than five minutes to diagnose and medicate their child.
How, then, is it possible that in 2007 doctors are now able to identify hundreds of thousands of previously missed cases of bipolar disorder in children by reducing the time they spend with patients from multiple hours to just a few minutes?
On the other hand, there simply is no possible way that the number of children who actually have bipolar disorder has increased from approximately 20,000 to 800,000 in a nine-year period. Yet the arguments of skeptics are being dismissed by academics in psychiatry. Research psychiatrists appear to be more invested in defending their research conclusions -- funded by pharmaceutical companies -- than engaging in a meaningful discussion to examine these preposterous demographics.
What I find more astounding than the claim that there are 800,000 American children with bipolar disorder is the fact that there are that many children whose conduct is so aberrant that their parents are seeking psychiatric treatment for them.
The symptoms, which are regarded as evidence of bipolar disorder, usually are what most people recognize as ordinary belligerence. Children who have anger outbursts, who refuse to go to bed, who are moody and self-centered under the current standard of care in child psychiatry are being diagnosed with bipolar disorder. To most rational human beings, these behaviors describe an ill-mannered, immature and poorly disciplined child. Nonetheless, the temper tantrums of belligerent children are increasingly being characterized by doctors as the mood swings of bipolar disorder.
The over-indulgent parenting practices of the past 20 years have created a generation of dysfunctional children who are becoming increasingly more entitled, defiant and oppositional. In a poll by Associated Press-Ipsos, 93 percent of people surveyed said that today's parents are not doing a good job when it comes to teaching their kids to behave. According to Dan Kindlon, a Harvard psychologist, 50 percent of the parents he interviewed described themselves as more permissive than their parents had been.
The permissive parents of spoiled children seek refuge from blame by using the excuse that their child's angry outbursts are the result of a chemical imbalance. Since a psychiatric condition is completely beyond a parent's control, a diagnosis of bipolar disorder is the perfect alibi. Once a child has been diagnosed with bipolar disorder, a parent feels absolved of guilt or responsibility for the child's misbehavior and therefore, the parents' discipline practices cannot be called into question.
Parents looking for a psychiatric explanation for their child's misbehavior will find an abundance of support in the media and on the Web for the conclusion that their child's temper tantrums are due to a psychiatric disease rather than the result of bad parenting. Psychiatrists, for their part, are more than willing to accept, without question, the assessment offered by a parent. Doctors have found it easier and less contentious to comply with a parent's wish to have their child diagnosed with a psychiatric condition than to confront the parent with the notion that their own weak parenting is the root cause of the child's aberrant behavior.
Using the diagnosis of bipolar disorder, doctors then justify the sedation of these children with powerful psychiatric drugs. Even though some children treated with anti-psychotics may be temporarily sedated, their belligerent attitude continues unchanged. Of the many children I treat every year who had been previously diagnosed with bipolar disorder, not one of them stopped throwing tantrums after being treated with psychiatric medications. Yet doctors continue to misdiagnose and overmedicate children to appease frustrated parents in spite of the many serious, permanent or even lethal side effects.
Tragically, as in the death of Rebecca Riley, her parents administered the multiple medications prescribed by their psychiatrist for Rebecca's "bipolar disorder" until the meds killed her. A few weeks ago, in an interview on 60 Minutes, Rebecca's mother told Katie Couric that she now believes that her four-year-old daughter had been misdiagnosed, had never been bipolar, and that Rebecca was simply mischievous.
When it comes to misdiagnosing and overmedicating children, doctors have an unwitting, though not unwilling, accomplice -- the parent. Ultimately, it is the parent who is the gatekeeper for their child's health-care delivery. It is the parent who pursues psychiatric treatment for their child, fills the prescriptions and administers the medications. Parents have a duty to protect their children from the folly of this disastrous approach to childhood behavior problems.
Instead of grooming, feeding and educating the next generation of Americans to be the fittest, brightest, most competent contributors on the planet, we have indulged, placated and spoiled our children into dysfunctional misfits. We are teaching our children to use a psychiatric diagnosis to excuse their antisocial behaviors. This will inevitably lead to a greater reliance on psychiatric medications, which unfortunately do not endow an individual with improved self-control or maturity.
Under the guise of treating childhood bipolar disorder, the spoiling of American children not only undermines their healthy social development, but it also puts them at great risk for the serious medical complications inherent in the use of psychiatric medications, including death.
The End
As a closing note I need to say, if anyone spends any time on this blog getting to know the author [Me] it will become clear that I have issues with abusing our children in any way shape or form. I have major issues with child anything but protective services making money for the government incentives causing them to tell parents [via the threat of taking the child] that they can-not dicipline their children.
What are we left with?
Wake up america we are left with drugged children that only needed some guidance, dicipline lots of love and BOTH parents in thier lives.
These issues are all related and this is why I rant about divorce, the system, DV, child anything but protective services, drugging our children, and how the system parenting our children is guaranteed to leave us with a dysfuntional future generation.
God help us all!
Money Child Protective Services and Greed!
By Georga Hackworth
Published Nov 07, 2007
Click to contact me
We all hear the horror stories involving Child Protective Services but believe it will never happen to us. Maybe we like to believe that those horror stories are the exception to the rule.
Maybe we like to think that the media is sensationalizing the facts for ratings and profit, after all, that is what the media does. Maybe we think that we are doing everything right and will never have to deal with the system.
The reality is that states and counties receive $30,000 for each child removed from the home and put into the system. Those funds go up to between $40,000 and $150,000 if the child has special needs. If you think that kind of money doesn't breed corruption, think again. In March 2003 the city of San Francisco had 75,000 children in their system. 75,000 children at $30,000 each (that is assuming none of them were handicapped) is $2,250,000,000! Foster families receive between $3,000 and $8300 a year for fostering a child depending on the state. That is a nice little profit being made even after you account for salaries and other overhead. It would be interesting to know where several million dollars each year is going.
The Department of Child Protective Services is a relatively new department of the government. In 1974 the first child abuse case went before the courts. There were no child abuse laws at that time so the case was taken up by the Human Society of the United States. It was after that case that the first child abuse laws were written and the Department of Child Protective Services was put together. It wasn't long before around 500,000 children were placed into the system with nothing in place to either return the children to their parents to find permanent homes for them. I remember attending elementary school with several children who lived in an orphanage where these children were put and forgotten about by the system.
Like most government agencies, CPS has evolved over the years and undergone reform to prevent abuse of the system as well as to make things run smoother and more effectively. However, it seems that the more rules that are put in place the more loopholes there are for corruption.
In 1997 the Adoption and Safe Families Act was put into place by the 105th Congress of the United States. The Adoption and Safe Families Act states:
· Reasonable efforts shall be made to preserve and reunify families unless the parent(s) have committed murder or voluntary manslaughter; aided, abetted, attempted, conspired or solicited to commit murder or voluntary manslaughter; committed a felony assault that resulted in serious bodily injury of the child or another child of the parent; the parental rights of the parent to a sibling have been terminated involuntarily
· If a child is not to be returned to the parents that a permanency hearing will take place within 30 days and that finalization of the placement, either with a legal guardian or by adoption, will be handled in a expeditious fashion as well as the details of how this will be done.
· How much money is to be given by the Federal Government to carry out the bill including incentive payments for the adoption of children in the system.
Yes, incentive payments for the adoption of children in the system. How this works is that a base line number of adoptions has to happen by each state or they risk loosing money. I understand the thought pattern behind the push to adopt out children permanently placed in the system. However, providing monetary incentives opens a lot of doors for the abuse of power. The base line number of adoptions of each state was determined individually. The number of adoptions for the years 1995, 1996 and 1997 were added up and the average taken. Each state was given their number. For each adoption that takes place over that number the state gets $4000. An additional $2000 is given for each special needs child.
Where does all this money go? I wish I had the answer there. Every child that gets put into the system is automatically enrolled in Medicaid. That crosses medical care off the list of what that money pays for. Foster families get a stipend each month for each foster child they take care of to help cover food, clothes and other basic needs. That monthly payment is only a small fraction of that $30,000 given to the state.
From my personal experience I can tell you that none of that money goes into helping the families who have been torn apart. In fact, the social worker that showed up on my door step was driving a BMW. Apparently social workers do get paid that much. So much for horrible hours, horrible pay and it being a thankless job that has a high turn over rate. I will say that being a social worker takes a certain type of person and not everyone is cut out for the job.
Forget wanting to help families. Forget wanting to protect children. Maybe that is why people originally go into social work. To be successful at you have to have a sadistic side of you that enjoys watching people suffer, that way you don't get emotionally attached and you do what you have to do.
Don't believe me? Don't think the system is abused? Consider for a moment that every report that is made to Child Protective Services, regardless of the validity of the claim, has to be investigated or the state risks loosing federal monies that are tied to Social Security. This means that if you get into a fight with your neighbor, your mother-in-law, or a friend they can pick up the phone and call in a false report in retaliation and you will have a social worker show up on your doorstep.
If everything isn't picture perfect when that social worker arrives, a case is formed. It could be anything such as the garbage hasn't been taken out that day, there are dirty dishes in the sink or your kids haven't had a bath yet that day. These people are there to judge your parenting and if they show up on that off day they aren't going to believe you that it's not normally like that.
I have also learned first hand that if someone makes a false call and makes the story outrageous enough that there will be no investigation and your kids will be taken on the spot, and the social worker doesn't have to be professional about it. They are allowed to yell at you, make snap judgments without asking questions, make you stand in the rain for three hours as well as ask questions that are a violation of your personal rights.
The social worker involved in our case also did nothing to help us out. Her idea of help was coming back a week later with a zoning inspector and having the house we were living in condemned making us homeless. This was after she was ordered by the court to return our kids and pay for temporary housing until we could get moved. When we went back to court and she was questioned on this her argument was "We are not in the habit of putting up homeless families."
She violated court order after court order and the judge did not do much about it, beyond not letting her get her way of terminating our parental rights and putting the children in state care. I know that the numbers were adding up in her head. I have seven children. Some of them are considered special needs. If she could get them adopted out there would be a nice bonus of $28,000 minimum.
After a month and a half we did get our kids back, but not after our visitation awarded by the court was blocked for a week and a half, our oldest was put in an unapproved foster home (the woman was licensed to take care of relatives only) and been sexually assaulted and our other children spent just over a month sick because the group home they were put in were very lax about the special diets they had to be on for health reasons.
Nothing was put in place for the emotional and mental well-being of my children. There is no counseling that is automatically given to children in the system to help cope with being separated from their parents. Maybe it is because it is assumed that every child removed from their home and taken away from their parents will be relieved because the state has rules, regulations and procedures in place to prevent errors from happening. Forget that the system is set up with monetary incentives at every corner that those motivated by greed.
Original Article
Money, Child Protective Services, and Greed - Associated Content
Published Nov 07, 2007
Click to contact me
We all hear the horror stories involving Child Protective Services but believe it will never happen to us. Maybe we like to believe that those horror stories are the exception to the rule.
Maybe we like to think that the media is sensationalizing the facts for ratings and profit, after all, that is what the media does. Maybe we think that we are doing everything right and will never have to deal with the system.
The reality is that states and counties receive $30,000 for each child removed from the home and put into the system. Those funds go up to between $40,000 and $150,000 if the child has special needs. If you think that kind of money doesn't breed corruption, think again. In March 2003 the city of San Francisco had 75,000 children in their system. 75,000 children at $30,000 each (that is assuming none of them were handicapped) is $2,250,000,000! Foster families receive between $3,000 and $8300 a year for fostering a child depending on the state. That is a nice little profit being made even after you account for salaries and other overhead. It would be interesting to know where several million dollars each year is going.
The Department of Child Protective Services is a relatively new department of the government. In 1974 the first child abuse case went before the courts. There were no child abuse laws at that time so the case was taken up by the Human Society of the United States. It was after that case that the first child abuse laws were written and the Department of Child Protective Services was put together. It wasn't long before around 500,000 children were placed into the system with nothing in place to either return the children to their parents to find permanent homes for them. I remember attending elementary school with several children who lived in an orphanage where these children were put and forgotten about by the system.
Like most government agencies, CPS has evolved over the years and undergone reform to prevent abuse of the system as well as to make things run smoother and more effectively. However, it seems that the more rules that are put in place the more loopholes there are for corruption.
In 1997 the Adoption and Safe Families Act was put into place by the 105th Congress of the United States. The Adoption and Safe Families Act states:
· Reasonable efforts shall be made to preserve and reunify families unless the parent(s) have committed murder or voluntary manslaughter; aided, abetted, attempted, conspired or solicited to commit murder or voluntary manslaughter; committed a felony assault that resulted in serious bodily injury of the child or another child of the parent; the parental rights of the parent to a sibling have been terminated involuntarily
· If a child is not to be returned to the parents that a permanency hearing will take place within 30 days and that finalization of the placement, either with a legal guardian or by adoption, will be handled in a expeditious fashion as well as the details of how this will be done.
· How much money is to be given by the Federal Government to carry out the bill including incentive payments for the adoption of children in the system.
Yes, incentive payments for the adoption of children in the system. How this works is that a base line number of adoptions has to happen by each state or they risk loosing money. I understand the thought pattern behind the push to adopt out children permanently placed in the system. However, providing monetary incentives opens a lot of doors for the abuse of power. The base line number of adoptions of each state was determined individually. The number of adoptions for the years 1995, 1996 and 1997 were added up and the average taken. Each state was given their number. For each adoption that takes place over that number the state gets $4000. An additional $2000 is given for each special needs child.
Where does all this money go? I wish I had the answer there. Every child that gets put into the system is automatically enrolled in Medicaid. That crosses medical care off the list of what that money pays for. Foster families get a stipend each month for each foster child they take care of to help cover food, clothes and other basic needs. That monthly payment is only a small fraction of that $30,000 given to the state.
From my personal experience I can tell you that none of that money goes into helping the families who have been torn apart. In fact, the social worker that showed up on my door step was driving a BMW. Apparently social workers do get paid that much. So much for horrible hours, horrible pay and it being a thankless job that has a high turn over rate. I will say that being a social worker takes a certain type of person and not everyone is cut out for the job.
Forget wanting to help families. Forget wanting to protect children. Maybe that is why people originally go into social work. To be successful at you have to have a sadistic side of you that enjoys watching people suffer, that way you don't get emotionally attached and you do what you have to do.
Don't believe me? Don't think the system is abused? Consider for a moment that every report that is made to Child Protective Services, regardless of the validity of the claim, has to be investigated or the state risks loosing federal monies that are tied to Social Security. This means that if you get into a fight with your neighbor, your mother-in-law, or a friend they can pick up the phone and call in a false report in retaliation and you will have a social worker show up on your doorstep.
If everything isn't picture perfect when that social worker arrives, a case is formed. It could be anything such as the garbage hasn't been taken out that day, there are dirty dishes in the sink or your kids haven't had a bath yet that day. These people are there to judge your parenting and if they show up on that off day they aren't going to believe you that it's not normally like that.
I have also learned first hand that if someone makes a false call and makes the story outrageous enough that there will be no investigation and your kids will be taken on the spot, and the social worker doesn't have to be professional about it. They are allowed to yell at you, make snap judgments without asking questions, make you stand in the rain for three hours as well as ask questions that are a violation of your personal rights.
The social worker involved in our case also did nothing to help us out. Her idea of help was coming back a week later with a zoning inspector and having the house we were living in condemned making us homeless. This was after she was ordered by the court to return our kids and pay for temporary housing until we could get moved. When we went back to court and she was questioned on this her argument was "We are not in the habit of putting up homeless families."
She violated court order after court order and the judge did not do much about it, beyond not letting her get her way of terminating our parental rights and putting the children in state care. I know that the numbers were adding up in her head. I have seven children. Some of them are considered special needs. If she could get them adopted out there would be a nice bonus of $28,000 minimum.
After a month and a half we did get our kids back, but not after our visitation awarded by the court was blocked for a week and a half, our oldest was put in an unapproved foster home (the woman was licensed to take care of relatives only) and been sexually assaulted and our other children spent just over a month sick because the group home they were put in were very lax about the special diets they had to be on for health reasons.
Nothing was put in place for the emotional and mental well-being of my children. There is no counseling that is automatically given to children in the system to help cope with being separated from their parents. Maybe it is because it is assumed that every child removed from their home and taken away from their parents will be relieved because the state has rules, regulations and procedures in place to prevent errors from happening. Forget that the system is set up with monetary incentives at every corner that those motivated by greed.
Original Article
Money, Child Protective Services, and Greed - Associated Content
Sunday, November 18, 2007
Long Term Use of Ritilan and Concerta
Ritalin and Concerta are two of the favorite weapons used to destroy the Natural Elite
(the Brightest and Bravest) of the population: the so-called hyperactive children.
Long term use of Ritalin ineffective and may stunt children's growth
Child Health News Published: Tuesday, 13-Nov-2007
Long term use of Ritalin is ineffective and may stunt children's growth
Child Health News Published: Tuesday, 13-Nov-2007
The study called the 'Multimodal Treatment Study of Children with ADHD' has been monitoring the treatment of 600 children across the U.S. since the 1990s; it reveals that drugs such as Ritalin are no more effective than therapy over a three year treatment period.
In 1999, the study concluded that after one year medication worked better than behavioural therapy for ADHD and that finding influenced medical practice on both sides of the Atlantic, and prescription rates multiplied.
Professor William Pelham of the University of Buffalo, the study's co-author, says the beneficial impact of the medications were exaggerated in the first study and the idea that if children were medicated longer they would have better outcomes was not the case.
Professor Pelham says in the long run there are "no beneficial effects" of medication and the impact was instead seemingly negative as the children had a substantial decrease in their rate of growth.
The National Institute for Clinical Excellence (NICE) in Britain is currently revising the treatment guidelines for ADHD and are devising new strategies which will involve training for parents as well as "behavioral interventions".
Doctors in the UK have warned before about treating children with behavioral problems with powerful anti-psychotic drugs which have dangerous side effects such as, insomnia, dizziness, heart problems, and even death.
In 2006 drugs like Concerta and Ritalin were prescribed to about 55,000 British children, costing the NHS £28m.
The Centers for Disease Control and Prevention (CDC) in the U.S. estimates 4.4 million youth ages 4-17 have been diagnosed with ADHD , and in 2003, 2.5 million youth were receiving medication the disorder.
Tranquillizers such as Risperdal and Zyprexa were originally designed for the treatment of psychosis and schizophrenia in adults, are now being used to calm hyperactive children even though they have been linked to several health problems.
Professor Pelham suggests that behavioral therapy and Omega-3 should be the first steps in helping a child with ADHD.
(the Brightest and Bravest) of the population: the so-called hyperactive children.
Long term use of Ritalin ineffective and may stunt children's growth
Child Health News Published: Tuesday, 13-Nov-2007
Long term use of Ritalin is ineffective and may stunt children's growth
Child Health News Published: Tuesday, 13-Nov-2007
The study called the 'Multimodal Treatment Study of Children with ADHD' has been monitoring the treatment of 600 children across the U.S. since the 1990s; it reveals that drugs such as Ritalin are no more effective than therapy over a three year treatment period.
In 1999, the study concluded that after one year medication worked better than behavioural therapy for ADHD and that finding influenced medical practice on both sides of the Atlantic, and prescription rates multiplied.
Professor William Pelham of the University of Buffalo, the study's co-author, says the beneficial impact of the medications were exaggerated in the first study and the idea that if children were medicated longer they would have better outcomes was not the case.
Professor Pelham says in the long run there are "no beneficial effects" of medication and the impact was instead seemingly negative as the children had a substantial decrease in their rate of growth.
The National Institute for Clinical Excellence (NICE) in Britain is currently revising the treatment guidelines for ADHD and are devising new strategies which will involve training for parents as well as "behavioral interventions".
Doctors in the UK have warned before about treating children with behavioral problems with powerful anti-psychotic drugs which have dangerous side effects such as, insomnia, dizziness, heart problems, and even death.
In 2006 drugs like Concerta and Ritalin were prescribed to about 55,000 British children, costing the NHS £28m.
The Centers for Disease Control and Prevention (CDC) in the U.S. estimates 4.4 million youth ages 4-17 have been diagnosed with ADHD , and in 2003, 2.5 million youth were receiving medication the disorder.
Tranquillizers such as Risperdal and Zyprexa were originally designed for the treatment of psychosis and schizophrenia in adults, are now being used to calm hyperactive children even though they have been linked to several health problems.
Professor Pelham suggests that behavioral therapy and Omega-3 should be the first steps in helping a child with ADHD.
Interesting find
CONSTITUTIONAL BUSINESS
Published By Citizens' Justice Programs
Post Office Box 90, Hull, Massachusetts 02045
Suing Your Federal Government for Civil Rights Violations
By David C. Grossack, Constitutional Attorney
Common Law Copyright © 1994 All Rights Reserved
On the occasion of the 200th anniversary of the Bill Of Rights, many attorneys may not realize that these rights each contain within them an intrinsic enabling authority for the purpose of redressing violations of these rights by those federal employees entrusted to uphold and protect them.
It is worth remembering that the authors of the Bill Of Rights were heavily influenced by Anglo-Saxon legal theorists such as Sir William Blackstone, who declared that there were "three absolute rights ... the right of personal security, the right of personal liberty and the right of personal property. [1] Blackstone believed the principal aim of society is to protect individuals in the enjoyment of these absolute rights which were vested in them by the immutable laws of nature. [2]
Blackstone's ideas became embodied in the Federalist papers, and in the writings of James Madison on property interests, which he defined in quite broad terms:
"In its larger and juster meaning, it embraces every thing to which a man may attach a value and have a right, and which leaves to every one else the like advantage ... [A] man has a property in his opinions, and the free communication of them. He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them. He has a property very dear to him in the safety and liberty of his person. He has an equal property in the free use of his faculties, and free choice of the objects on which to employ them."
"The protection of these faculties" Madison wrote in The Federalist No. 10, "is the first object of government."
As Madison might have anticipated, and as modern students of law and history may realize, in the pursuit of its various other objectives, the federal government from time to time treads on these rights and "faculties" and on the natural rights of mankind whose protection is found in the Ninth Amendment of the U.S. Constitution.
When Congress enacted Title 42 U.S. Code §1983 and other federal civil rights laws for the redress of violations of these rights, it did not extend liability to federal officials and employees. Instead, these laws were held to apply to "state action", and the actions of county and municipal government (except when federal officials conspired with others. See Fonda v. Gray, 1983(CA 9) CAL 707 F.2d. 435.)
The dilemma on how to obtain compensation for victims of "constitutional torts" by federal actors remained essentially unresolved until the case of Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388 (1971).
Bivens has had more impact on the accountability of federal government officials than perhaps any other decision in the history of American law. The central issue in Bivens was whether the Fourth Amendment of the Federal constitution created an implied right of action. This was decided affirmatively in a claim for damages by individuals whose home was searched unreasonably (and hence unconstitutionally) by federal narcotic agents. Jurisdiction was not claimed under title 42 U.S. Code § 1983, which as of this writing, has not yet been held to extend liability to federal officials in most circumstances. Instead the enabling legislation was found under Title 28 U.S. Code § 1331 which grants general jurisdiction on the basis of a federal question.
Subsequent cases have held the Bivens theory of recovery applies to other claims under the various rights enumerated in the Constitution. (For decisions concerning redress of Fifth Amendment claims with Bivens actions, See Young v. Pierce, (DC Tex. 544 F.Supp. 1010) and Eight Amendment claims Mackey v. Indiana Hospital, (DC PA 562 F.Supp. 1251. [3]
Litigants who seek to bring claims against federal officials for abuses of their authority have been confused concerning the proper way to characterize their actions in the pleadings. Generally speaking, how one drafts a complaint and not what evidence is to be introduced determines whether a claim can survive as a federal cause of action. Tully v. Mott Supermarkets, Inc., 337 F.Supp. 834, 844 D.N.J. (1972).
For example, cases have held that if other theories of recovery are pleaded, a Bivens action must fail. This has forced attorneys to select whether they wish to use the Federal Tort Claims Act (Title 28 U.S. Code § 2679) and its strict presentment requirements and other federal law or to rely on a Bivens theory. A complaint alleging both theories are at risk of a dispositive motion. Serra v. Pichardo, 786 F.2d. 237 (6th Cir.)
Another easy mistake to make is in deciding who to name as a defendant. A lawsuit naming the FBI or United States Department of Justice per se as defendants may fail because the agencies are likely to raise certain immunity defenses which have yet to be abolished.
Federal employees may become personally liable for constitutional deprivation by direct participation, failure to remedy wrongs after learning about it, creation of a policy or custom under which constitutional practices occur or gross negligence in managing subordinates who cause violations. (Gallegos v. Haggerty, Northern District of New York, 689 F.Supp. 93)
Although certain federal officials have absolute immunity from private suit, most executive officials enjoy only qualified immunity. The rationale for the distinction is that higher officials require greater liability than officials with less complex and discretionary responsibilities. Hatori v. Haya, 751 F.Supp. 1401.
Any action is considered to be against the "sovereign" and hence fails to state a claim if judgment would "interfere with public administration, or compel the United States to act in foreign policy, or enjoin foreign policy. (Sanchez Espinola v. Reagan, 770 F.2d. 202, Rochfort v. Gibbs, 696 F.Supp. 1151, WD Michigan, 1988.)
Many litigants facing civil lawsuits in which the United States is the plaintiff have erroneously sought to counterclaim against the U.S. The United States, however, to this date has not waived sovereign immunity for claims for damages, (See United States v. Northside Realty Associates, 324 F.Supp. 287, 291 (N.D. GA 1971) (dismissing a counterclaim asserted against the Attorney General where plaintiff in the suit was the United States on the ground that although the suit was initiated by the Attorney General, the real party in interest was the United States).
When lawsuits are brought against federal officials, they must be brought against them in their "individual" capacity not their official capacity. The theory appears to be that when federal officials perpetrate constitutional torts, they do so ultra vires and lose the shield of sovereign immunity. Williamson v. U.S. Department of Agriculture, 815 F.2d. 369, ACLU Foundation v. Barr, 952 F.2d. 457, 293 U.S. App. DC 101, (CA DC 1991).
When lawsuits are brought against federal officials, they must be brought against them in their "individual" capacity not their official capacity. The theory appears to be that when federal officials perpetrate constitutional torts, they do so ultra vires and lose the shield of sovereign immunity. Williamson v. U.S. Department of Agriculture, 815 F.2d. 369, ACLU Foundation v. Barr, 952 F.2d. 457, 293 U.S. App. DC 101, (CA DC 1991).
Judge Thomas Griesa's final decision in the case allowed recovery under the Federal Tort Claims Act for the intentional torts of invasion of privacy for the use of informants as well as for the F.B.I.'s burglaries, under a theory of trespass. Many other counts were dismissed in the case for failure to adhere to the procedural requirements of the Federal Tort Claims Act (FTCA).
Why plaintiff's counsel selected the FTCA rather than the Bivens theory of recovery is not known.
The social consequences of having available remedies such as Bivens and the FTCA are significant. Together with the Freedom of Information Act, The Privacy Act, and the willingness of disillusioned persons within government to act as "whistleblowers," a limited deterrent effect exists to serious violations of civil rights by government.
The sensation caused by the illegal federally sponsored research experiments on mentally disabled children sequestered for nearly 40 years and revealed only recently indicates the changes in public sentiments.
Nevertheless, many courts have considered civil rights claims to be "disfavored actions."
Consider the court in Littleton v. Berbling, 468 F.2d. 390 (7th Cir. 1971):
"The civil damages suit is worthless, especially if the victim of oppression is a social misfit or an unsavory character."
The words of Justice Louis Brandeis however, offer another view:
"Decency, security and liberty alike demand that government officials shall be subjected to the rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for the law, it invites every man to come a law unto himself. It invites anarchy. (United States v. Olmstead, 277 U.S. 438 (1928).
Notes
1. Unfinished Business: A Civil rights Strategy For America's Third Century. Clint Bolick Pacific Research Institute For Public Policy, San Francisco, CA 1990.
2. Ibid.
3. First Amendment litigation concerning IRS tax exempt status for minority political and religious movements is also common. For an historical perspective see Income Disadvantages of Political Activities, (Colum. L. Rev. 273 (1957). Also, Clark, The Limitation On Political Activities: A Discordant Note In the Law Of Charities, 46 VA L.Rev. 439 (1960). See also, Communist Party v. Commissioner of Internal Revenue, 332 F.2d. 325, 329(D.C. Cir. 1964; Wolfe v. U.S. Tax Court, (1981) (D.C. Colo. 513 F.Supp. 912.
Copyright ©1994 Constitutional Business
Post Office Box 90 Hull, Massachusetts 02045
Tel. 617-925-5253 Fax 617-925-3906
All Rights Reserved
Limited License:
The right to publish this article off-line in print, or via CD-ROM, floppy diskette, tape, laser disk, or any other media, electronic or otherwise, can only be granted by the author and must be in writing. Online usage is unrestricted as long as this article, including the byline, copyright notice, publisher's address, and limited license, is published in its entirety.
Note: Hereafter, brackets signify endnotes.
The author is an attorney in private practice in Boston.
A Warning From The United States Supreme Court?
I came accross this today, it's from 1994 and I haven't researched it at all, I'm in NY and they're in Boston so it wouldn't help me. But here goes anyway...
A WARNING FROM THE UNITED STATES SUPREME COURT!
In the words of former Chief Justice Warren Burger, "75 to 90 percent of American Trial Lawyers are incompetent, dishonest, or both."
If this statement is true, shouldn't you consider learning a little about law yourself, if only to keep your lawyers in line?
CONSTITUTIONAL BUSINESS
When legal problems are in front of you, and if you don't know your rights, you might as well not have any.
Lawyers are advantaged in that they know how to find the law in the library. This knowledge is not an occult mystery.
The laws are supposed to be made by the people and for the people. They are not supposed to make lawyers and bureaucrats a privileged ruling elite.
That's why the newsletter Constitutional Business was created, to put knowledge into the hands of the general public and to teach you how to find the law.
Lawyers are often not only overpriced, but also are frequently tough to deal with.
Too many do not listen to clients, do not do enough research and do not pay enough attention to details ... and that can cost you.
You have the right under the Constitution to act as your own attorney.
And if you don't know the Constitution, both of this country, and your state, then you are at a great disadvantage. Many politicians, police and bureaucrats don't want you to know what is in these documents.
Our newsletter is designed to put you on a more level playing field with lawyers and adversaries.
You'll be better able to negotiate, argue and plead. Your results cannot be guaranteed, but we can guarantee that after reading Constitutional Business you will know more about law.
And once you've become our reader, you will know how to reach for justice.
And then you can teach others what they need to know.
It's the American way!
DID YOU KNOW:
That Bar Associations have been sued for monopolistic practices?
That legal malpractice claims are at an all time record?
That pro-se litigants are forcing revolutionary changes in our justice system and that the best is yet to come?
Call (781) 261-9990 for more information or send $49.00 for a one year subscription to:
CONSTITUTIONAL BUSINESS P.O. Box 90 Hull, MA 02045 (781) 261-9990 — Fax (781) 261-9996
Demanding Justice Pro-Se
Learning Law
Avoiding Lawyers
Constitutional Business
A WARNING FROM THE UNITED STATES SUPREME COURT!
In the words of former Chief Justice Warren Burger, "75 to 90 percent of American Trial Lawyers are incompetent, dishonest, or both."
If this statement is true, shouldn't you consider learning a little about law yourself, if only to keep your lawyers in line?
CONSTITUTIONAL BUSINESS
When legal problems are in front of you, and if you don't know your rights, you might as well not have any.
Lawyers are advantaged in that they know how to find the law in the library. This knowledge is not an occult mystery.
The laws are supposed to be made by the people and for the people. They are not supposed to make lawyers and bureaucrats a privileged ruling elite.
That's why the newsletter Constitutional Business was created, to put knowledge into the hands of the general public and to teach you how to find the law.
Lawyers are often not only overpriced, but also are frequently tough to deal with.
Too many do not listen to clients, do not do enough research and do not pay enough attention to details ... and that can cost you.
You have the right under the Constitution to act as your own attorney.
And if you don't know the Constitution, both of this country, and your state, then you are at a great disadvantage. Many politicians, police and bureaucrats don't want you to know what is in these documents.
Our newsletter is designed to put you on a more level playing field with lawyers and adversaries.
You'll be better able to negotiate, argue and plead. Your results cannot be guaranteed, but we can guarantee that after reading Constitutional Business you will know more about law.
And once you've become our reader, you will know how to reach for justice.
And then you can teach others what they need to know.
It's the American way!
DID YOU KNOW:
That Bar Associations have been sued for monopolistic practices?
That legal malpractice claims are at an all time record?
That pro-se litigants are forcing revolutionary changes in our justice system and that the best is yet to come?
Call (781) 261-9990 for more information or send $49.00 for a one year subscription to:
CONSTITUTIONAL BUSINESS P.O. Box 90 Hull, MA 02045 (781) 261-9990 — Fax (781) 261-9996
Demanding Justice Pro-Se
Learning Law
Avoiding Lawyers
Constitutional Business
1983
Section 1983
Section 1983 of title 42 of the U.S. Code is part of the Civil Rights Act of 1871. This provision was formerly enacted as part of the Ku Klux Klan Act of 1871 and was originally designed to combat post-Civil War racial violence in the Southern states. Reenacted as part of the Civil Rights Act, section 1983 is today the primary means of enforcing all constitutional rights.
Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
On March 23, 1871, President Ulysses S. Grant sent an urgent message to Congress calling for national legislation that could combat the alarming increase in racial unrest and violence in the South. Congress reacted swiftly to this request, proposing a bill just five days later. The primary objective of the bill was to provide a means for individuals and states to enforce, in the federal or state courts, the provisions of the Fourteenth Amendment. The proposed bill created heated debate lasting several weeks but was eventually passed on April 20, 1871.
During the first ninety years of the act, few causes of action were brought due to the narrow and restrictive way that the U.S. Supreme Court interpreted the act. For example, the phrase "person … [acting] under color of any statute" was not interpreted to include those wrongdoers who happened to be state or municipal officials acting within the scope of their employment but not in accordance with the state or municipal laws. Those officials were successfully able to argue that they were not acting under color of statute and therefore their actions did not fall under the mandates of section 1983. In addition, courts narrowly construed the definition of "rights, privileges, or immunities."
But the Supreme Court decisions in Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), and Monell v. Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), finally recognized the full scope of Congress's original intent in enacting section 1983. The Supreme Court began accepting an expansive definition of rights, privileges, or immunities and held that the act does cover the actions of state and municipal officials, even if they had no authority under state statute to act as they did in violating someone's federal rights.
Jurisdiction
Federal courts are authorized to hear cases brought under section 1983 pursuant to two statutory provisions: 28 U.S.C.A. § 1343(3) (1948) and 28 U.S.C.A. § 1331 (1948). The former statute permits federal district courts to hear cases involving the deprivation of civil rights, and the latter statute permits federal courts to hear all cases involving a federal question or issue. Cases brought under section 1983 may therefore be heard in federal courts by application of both jurisdictional statutes.
State courts may also properly hear section 1983 cases pursuant to the Supremacy Clause of Article VI of the U.S. Constitution. The Supremacy Clause mandates that states must provide hospitable forums for federal claims and the vindication of federal rights. This point was solidified in the Supreme Court decision of Felder v. Casey, 487 U.S. 131, 108 S. Ct. 2302, 101 L. Ed. 2d 123 (1988). The Felder case involved an individual who was arrested in Wisconsin and later brought suit in state court against the police officers and city for violations of his federal rights. The state court dismissed the claim because the plaintiff failed to properly comply with a state procedural law. But the Supreme Court overturned the state decision, holding that the Wisconsin statute could not bar the individual's federal claim.
To bring an action under section 1983, the plaintiff does not have to begin in state court. However, if the plaintiff chooses to bring suit in state court, the defendant has the right to remove the case to federal court.
Elements of a Section 1983 Claim
To prevail in a claim under section 1983, the plaintiff must prove two critical issues: a person subjected the plaintiff to conduct that occurred under color of state law, and this conduct deprived the plaintiff of rights, privileges, or immunities guaranteed under federal law or the U.S. Constitution.
A state is not a "person" under section 1983, but a city is a person under the law (Will v. Michigan Department of State Police, 491 U.S. 58, 109 S. Ct. 2304, 105 L. Ed. 2d 45 [1989]). Similarly, state officials sued in their official capacities are not deemed persons under section 1983, but if sued in their personal capacities, they are considered to be persons. Thus if a plaintiff wants to bring a section 1983 claim against a state official, she or he must name the defendants in their personal capacity and not in their professional capacity. Like a state, a territory, such as the territory of Guam, is not considered to be a person for the purposes of section 1983.
The Supreme Court has broadly construed the provision "under color of any statute" to include virtually any state action including the exercise of power of one "possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law" (United States v. Classic, 313 U.S. 299, 61 S. Ct. 1031, 85 L. Ed. 1368 [1941]). Thus, the wrongdoer's employment by the government may indicate state action, although it does not conclusively prove it. Even if the wrongdoer did not act pursuant to a state statute, the plaintiff may still show that the defendant acted pursuant to a "custom or usage" that had the force of law in the state. In Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970), the plaintiff was able to prove that she was refused service in a restaurant due to her race because of a state-enforced custom of racial segregation, even though no state statute promoted racial segregation in restaurants.
A successful section 1983 claim also requires a showing of the deprivation of a constitutional or federal statutory "right." This showing is required because section 1983 creates a remedy when rights are violated but does not create any rights itself. It is not enough to show a violation of a federal law because all federal laws do not necessarily create federal rights. A violation of the Fourth Amendment's guarantee against unreasonable searches and seizures or a violation of the Commerce Clause are examples of federal constitutional rights that may be deprived. Deprivation of federal statutory rights is also actionable when it can be shown that the statute creates a federal right. To show that a federal statute creates a federal right, the plaintiff must demonstrate that the federal law was designed and clearly intended to benefit the plaintiff, resulting in the creation of a federal right. For example, the Supreme Court held that a person's entitlement to welfare benefits under the federal Social Security Act is a federal right stemming from a federal statute that can be protected by section 1983 (Maine v. Thiboutot, 448 U.S. 1, 100 S. Ct. 2502, 65 L. Ed. 2d 555 [1980]).
If the plaintiff can demonstrate that a federal law granted her a federal right that was then violated, the defendant can defeat the plaintiff's claim by demonstrating that Congress specifically foreclosed a remedy under section 1983 for the type of injury that the plaintiff is pleading. The Supreme Court has held that the defendant must prove that a section 1983 action would be inconsistent with the cautious and precise scheme of remedies provided by Congress. For example, if a federal law specifically provides for a means to privately enforce that law, or if the statute does not create "rights" within the meaning of section 1983, the defendant may prevail in showing that Congress did not intend a section 1983 remedy to apply in that circumstance. It is the defendant's burden to demonstrate congressional intent to prevent a remedy under section 1983.
Absolute and Qualified Immunities
Although section 1983 does not specifically provide for absolute immunity for any parties, the Supreme Court has deemed that some officials are immune. The Supreme Court reached this conclusion by applying the common-law principles of tort immunity that existed in the United States at the time section 1983 was enacted, assuming that Congress had intended those common-law immunities to apply without having to specifically so provide in the statute. State and regional legislators are absolutely immune, as long as they are engaged in traditional legislative functions. Although the Supreme Court has not had the opportunity to extend this rule to municipal legislators, lower courts have done so (Reed v. Village of Shorewood, 704 F.2d 943 [7th Cir. 1983]).
Judges have also been held to be absolutely immune from section 1983 actions, as long as they are performing adjudicative functions (Pierson v. Ray, 386 U.S. 547, 87 S. Ct. 1213, 18 L. Ed. 2d 288 [1967]; Stump v. Sparkman, 435 U.S. 349, 98 S. Ct. 1099, 55 L. Ed. 2d 331 [1978]). Judges are considered to be performing their adjudicative functions as long as they had jurisdiction over the subject matter at the time they acted and the action was a judicial act. A minority of lower courts have extended this absolute judicial immunity to quasi-judicial agencies, such as parole boards, when they have performed functions similar to those of judges (Johnson v. Wells, 566 F.2d 1016 [5th Cir. 1978]). Absolute judicial immunity has also been extended in some cases to those judicial employees who act under the direction of the judge, such as a law clerk, court administrator, paralegal, or court reporter (Lockhart v. Hoenstine, 411 F.2d 455 [3d Cir. 1969]).
State prosecuting attorneys who are acting within the scope of their duty in presenting the state's case are also absolutely immune from suits for damages under section 1983 claims but are not absolutely immune from suits seeking prospective relief (Imbler v. Pachtman, 424 U.S. 409, 96 S. Ct. 984, 47 L. Ed. 2d 128 [1976]). Other state officials who act in a prosecutorial role are similarly immune. The Supreme Court differentiated public defenders, however, in Polk County v. Dodson, 454 U.S. 312, 102 S. Ct. 445, 70 L. Ed. 2d 509 (1981), holding that they do not act under color of state law when performing their duties and therefore are not in need of immunity because their conduct is not covered by section 1983.
Witnesses who testify in court are absolutely immune from section 1983 actions for damages, even if the claim arises out of the wit- ness's perjured testimony (Briscoe v. LaHue, 460 U.S. 325, 103 S. Ct. 1108, 75 L. Ed. 2d 96 [1983]).
The Supreme Court has also recognized a qualified immunity defense to section 1983 actions in certain circumstances. Most state and local officials and employees, who do not enjoy absolute immunity, are entitled to qualified immunity. Thus, a prosecuting attorney who enjoys absolute immunity in performing her prosecutorial functions may also enjoy a qualified immunity in hiring and firing subordinates. The Supreme Court has held that school board members, state mental institution administrators, law enforcement officers, prison officials, and state and local executives have qualified immunity (Wood v. Strickland, 420 U.S. 308, 95 S. Ct. 992, 43 L. Ed. 2d 214 [1975]; O'Connor v. Donaldson, 422 U.S. 563, 95 S. Ct. 2486, 45 L. Ed. 2d 396 [1975]; Pierson v. Ray, 386 U.S. 547, 87 S. Ct. 1213, 18 L. Ed. 2d 288 [1967]; Procunier v. Navarette, 434 U.S. 555, 98 S. Ct. 855, 55 L. Ed. 2d 24 [1978]; Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 [1974]). Most federal circuit courts have deemed that parole board members and prison disciplinary committee members have qualified immunity (Fowler v. Cross, 635 F.2d 476 [5th Cir. 1981]; Thompson v. Burke, 556 F.2d 231 [3d Cir. 1977]). Lower courts have extended the defense of qualified immunity to a number of other officials, such as city managers, county health administrators, and state Department of Veterans' Affairs trust officers.
If the defendant can raise the defense of absolute or qualified immunity, then it is his duty to plead it (Gomez v. Toledo, 446 U.S. 635, 100 S. Ct. 1920, 64 L. Ed. 2d 572 [1980]).
Remedies
The Supreme Court has held that section 1983 creates "a species of tort liability" (Imbler v. Pachtman, 424 U.S. 409, 96 S. Ct. 984, 47 L. Ed. 2d 128 [1976]). Thus, the Supreme Court has held that, as in tort law, a section 1983 plaintiff is entitled to receive only nominal damages, not to exceed one dollar, unless she or he can prove actual damages (Carey v. Piphus, 435 U.S. 247, 98 S. Ct. 1042, 55 L. Ed. 2d 252 [1978]). The jury is not entitled to place a monetary value on the constitutional rights of which the plaintiff was deprived (Memphis Community School District v. Stachura, 477 U.S. 299, 106 S. Ct. 2537, 91 L. Ed. 2d 249 [1986]). Plaintiffs bear the burden, therefore, of presenting evidence of all expenses incurred, such as medical or psychiatric expenses, lost wages, and any damages due to pain and suffering, emotional distress, or damage to reputation. The plaintiff is also under a burden to mitigate his damages, and the award of damages may be reduced to the extent that the plaintiff failed to do so.
A section 1983 plaintiff is also required to prove that a federal right was violated and, similar to tort law, that the alleged violation was a proximate or legal cause of the damages that the plaintiff suffered (Arnold v. IBM Corp., 637 F.2d 1350 [9th Cir. 1981]).
The Supreme Court has also held that, similar to tort law, punitive damages are available under section 1983 (Smith v. Wade, 461 U.S. 30, 103 S. Ct. 1625, 75 L. Ed. 2d 632 [1983]). A plaintiff is entitled to punitive damages if the jury finds that the defendant's conduct was reckless or callously indifferent to the federally protected rights of others, or if the defendant was motivated by an evil intent. The jury has the duty to assess the amount of punitive damages. Because the purpose of punitive damages is to punish the wrongdoer, such damages may be awarded even if the plaintiff cannot show actual damages (Basista v. Weir, 340 F.2d 74 [3d Cir. 1965]). As in tort law, the judge has the right to overturn a jury verdict if the jury awards what the judge considers to be excessive punitive damages.
Courts also have broad power to grant equitable relief to plaintiffs in section 1983 actions. Equitable remedies that courts have provided in the past include school desegregation, restructuring of state mental health facilities, and restructuring of prisons (United States v. City of Yonkers, 96 F. 3d 600 [2nd Cir. 1996]; Wyatt v. Stickney, 344 F. Supp. 373 [M.D. Ala. 1972]; Hutto v. Finney, 437 U.S. 678, 98 S. Ct. 2565, 57 L. Ed. 2d 522 [1978]). When the court does provide equitable relief, it usually also provides ongoing evaluation and supervision of the enforcement of its orders.
The Civil Rights Attorney's Fee Awards Act of 1976 (42 U.S.C.A. § 1988[b]) allows for the award of reasonable attorneys' fees to the prevailing party in cases brought under various federal civil rights laws, including section 1983. This provision applies whether or not compensatory damages were awarded. This provision also applies whether the plaintiff or the defendant prevails. However, if the defendant is the prevailing party, attorneys' fees have been held to be appropriate only where the lawsuit was "vexatious, frivolous, or brought to harass or embarrass the defendant" (Hensley v. Eckerhart, 461 U.S. 424, 103 S. Ct. 1933, 76 L. Ed. 2d 40 [1983]). In addition, section 1988 does not require that the attorneys' fees awarded be in proportion to the amount of damages recovered (City of Riverside v. Rivera, 477 U.S. 561, 106 S. Ct. 2686, 91 L. Ed. 2d 466 [1986]).
Rule 68 of the Federal Rules of Civil Procedure can lead to the adjustment of the amount of damages awarded by a jury in a section 1983 case. Enacted to encourage parties to settle their matters out of court, rule 68 provides that if the plaintiff rejected a settlement offer made by the defendant before trial that is better than the award the plaintiff ultimately received in the trial, the defendant is not liable for plaintiff's attorneys' fees incurred after the time the defendant made the settlement offer (Marek v. Chesny, 473 U.S. 1, 105 S. Ct. 3012, 87 L. Ed. 2d 1 [1985]). Under rule 68, section 1983 plaintiffs need to carefully consider any settlement offers made by the defendants.
Bars to Relief
Section 1983 does not provide a specific statute of limitations, which is a time limit in which a claim must be brought after the alleged violation occurred. But 42 U.S.C.A. § 1988 (1976) states that where the federal law does not provide a statute of limitations, state law shall apply. In determining which state statute of limitations to apply in a section 1983 case, the Supreme Court has held that in the interests of national uniformity and predictability, all section 1983 claims shall be treated as tort claims for the recovery of personal injuries (Wilson v. Garcia, 471 U.S. 261, 105 S. Ct. 1938, 85 L. Ed. 2d 254 [1985]). If the state has various statutes of limitations for different intentional torts, the Supreme Court mandates that the state's general or residual personal injury statute of limitations should apply (Owens v. Okure, 488 U.S. 235, 109 S. Ct. 573, 102 L. Ed. 2d 594 [1989]).
The Supreme Court has also held that state tolling statutes, which provide a plaintiff with an additional period of time in which to bring a lawsuit equal to the period of time in which the plaintiff was legally disabled, apply to section 1983 cases (Board of Regents v. Tomanio, 446 U.S. 478, 100 S. Ct. 1790, 64 L. Ed. 2d 440 [1980]).
Under section 1983, the statute of limitations does not begin to run until the cause of action accrues. The cause of action accrues when "the plaintiff knows or has reason to know of the injury which is the basis of the action" (Cox v. Stanton, 529 F.2d 47 [4th Cir. 1975]). However, in employment law cases, the Supreme Court has held that the cause of action accrues when the discriminatory act occurs (Delaware State College v. Ricks, 449 U.S. 250, 101 S. Ct. 498, 66 L. Ed. 2d 431 [1980]). Thus, if an employee is being terminated for reasons that violate section 1983, the statute of limitations begins on the day that the employee learns of the termination, not when the termination actually begins (Chardon v. Fernandez, 454 U.S. 6, 102 S. Ct. 28, 70 L. Ed. 2d 6 [1981]).
The legal rules of res judicata (claim preclusion) and collateral estoppel (issue preclusion) apply to section 1983 claims. This means that federal courts must give state court judgments the same preclusive effect that the law of the state in which the judgment was rendered would give. Plaintiffs need to be careful to raise all potential federal claims in cases brought in state court because they will not be allowed to bring those claims later in federal court after the state court has rendered a decision on the issues before it.
A plaintiff may waive his or her right to sue under section 1983, but such a waiver may be deemed unenforceable if "the interest in its enforcement is outweighed in the circumstances by a public policy harmed by enforcement of the agreement" (Town of Newton v. Rumery, 480 U.S. 386, 107 S. Ct. 1187, 94 L. Ed. 2d 405 [1987]).
Section 1983 of title 42 of the U.S. Code is part of the Civil Rights Act of 1871. This provision was formerly enacted as part of the Ku Klux Klan Act of 1871 and was originally designed to combat post-Civil War racial violence in the Southern states. Reenacted as part of the Civil Rights Act, section 1983 is today the primary means of enforcing all constitutional rights.
Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
On March 23, 1871, President Ulysses S. Grant sent an urgent message to Congress calling for national legislation that could combat the alarming increase in racial unrest and violence in the South. Congress reacted swiftly to this request, proposing a bill just five days later. The primary objective of the bill was to provide a means for individuals and states to enforce, in the federal or state courts, the provisions of the Fourteenth Amendment. The proposed bill created heated debate lasting several weeks but was eventually passed on April 20, 1871.
During the first ninety years of the act, few causes of action were brought due to the narrow and restrictive way that the U.S. Supreme Court interpreted the act. For example, the phrase "person … [acting] under color of any statute" was not interpreted to include those wrongdoers who happened to be state or municipal officials acting within the scope of their employment but not in accordance with the state or municipal laws. Those officials were successfully able to argue that they were not acting under color of statute and therefore their actions did not fall under the mandates of section 1983. In addition, courts narrowly construed the definition of "rights, privileges, or immunities."
But the Supreme Court decisions in Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), and Monell v. Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), finally recognized the full scope of Congress's original intent in enacting section 1983. The Supreme Court began accepting an expansive definition of rights, privileges, or immunities and held that the act does cover the actions of state and municipal officials, even if they had no authority under state statute to act as they did in violating someone's federal rights.
Jurisdiction
Federal courts are authorized to hear cases brought under section 1983 pursuant to two statutory provisions: 28 U.S.C.A. § 1343(3) (1948) and 28 U.S.C.A. § 1331 (1948). The former statute permits federal district courts to hear cases involving the deprivation of civil rights, and the latter statute permits federal courts to hear all cases involving a federal question or issue. Cases brought under section 1983 may therefore be heard in federal courts by application of both jurisdictional statutes.
State courts may also properly hear section 1983 cases pursuant to the Supremacy Clause of Article VI of the U.S. Constitution. The Supremacy Clause mandates that states must provide hospitable forums for federal claims and the vindication of federal rights. This point was solidified in the Supreme Court decision of Felder v. Casey, 487 U.S. 131, 108 S. Ct. 2302, 101 L. Ed. 2d 123 (1988). The Felder case involved an individual who was arrested in Wisconsin and later brought suit in state court against the police officers and city for violations of his federal rights. The state court dismissed the claim because the plaintiff failed to properly comply with a state procedural law. But the Supreme Court overturned the state decision, holding that the Wisconsin statute could not bar the individual's federal claim.
To bring an action under section 1983, the plaintiff does not have to begin in state court. However, if the plaintiff chooses to bring suit in state court, the defendant has the right to remove the case to federal court.
Elements of a Section 1983 Claim
To prevail in a claim under section 1983, the plaintiff must prove two critical issues: a person subjected the plaintiff to conduct that occurred under color of state law, and this conduct deprived the plaintiff of rights, privileges, or immunities guaranteed under federal law or the U.S. Constitution.
A state is not a "person" under section 1983, but a city is a person under the law (Will v. Michigan Department of State Police, 491 U.S. 58, 109 S. Ct. 2304, 105 L. Ed. 2d 45 [1989]). Similarly, state officials sued in their official capacities are not deemed persons under section 1983, but if sued in their personal capacities, they are considered to be persons. Thus if a plaintiff wants to bring a section 1983 claim against a state official, she or he must name the defendants in their personal capacity and not in their professional capacity. Like a state, a territory, such as the territory of Guam, is not considered to be a person for the purposes of section 1983.
The Supreme Court has broadly construed the provision "under color of any statute" to include virtually any state action including the exercise of power of one "possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law" (United States v. Classic, 313 U.S. 299, 61 S. Ct. 1031, 85 L. Ed. 1368 [1941]). Thus, the wrongdoer's employment by the government may indicate state action, although it does not conclusively prove it. Even if the wrongdoer did not act pursuant to a state statute, the plaintiff may still show that the defendant acted pursuant to a "custom or usage" that had the force of law in the state. In Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970), the plaintiff was able to prove that she was refused service in a restaurant due to her race because of a state-enforced custom of racial segregation, even though no state statute promoted racial segregation in restaurants.
A successful section 1983 claim also requires a showing of the deprivation of a constitutional or federal statutory "right." This showing is required because section 1983 creates a remedy when rights are violated but does not create any rights itself. It is not enough to show a violation of a federal law because all federal laws do not necessarily create federal rights. A violation of the Fourth Amendment's guarantee against unreasonable searches and seizures or a violation of the Commerce Clause are examples of federal constitutional rights that may be deprived. Deprivation of federal statutory rights is also actionable when it can be shown that the statute creates a federal right. To show that a federal statute creates a federal right, the plaintiff must demonstrate that the federal law was designed and clearly intended to benefit the plaintiff, resulting in the creation of a federal right. For example, the Supreme Court held that a person's entitlement to welfare benefits under the federal Social Security Act is a federal right stemming from a federal statute that can be protected by section 1983 (Maine v. Thiboutot, 448 U.S. 1, 100 S. Ct. 2502, 65 L. Ed. 2d 555 [1980]).
If the plaintiff can demonstrate that a federal law granted her a federal right that was then violated, the defendant can defeat the plaintiff's claim by demonstrating that Congress specifically foreclosed a remedy under section 1983 for the type of injury that the plaintiff is pleading. The Supreme Court has held that the defendant must prove that a section 1983 action would be inconsistent with the cautious and precise scheme of remedies provided by Congress. For example, if a federal law specifically provides for a means to privately enforce that law, or if the statute does not create "rights" within the meaning of section 1983, the defendant may prevail in showing that Congress did not intend a section 1983 remedy to apply in that circumstance. It is the defendant's burden to demonstrate congressional intent to prevent a remedy under section 1983.
Absolute and Qualified Immunities
Although section 1983 does not specifically provide for absolute immunity for any parties, the Supreme Court has deemed that some officials are immune. The Supreme Court reached this conclusion by applying the common-law principles of tort immunity that existed in the United States at the time section 1983 was enacted, assuming that Congress had intended those common-law immunities to apply without having to specifically so provide in the statute. State and regional legislators are absolutely immune, as long as they are engaged in traditional legislative functions. Although the Supreme Court has not had the opportunity to extend this rule to municipal legislators, lower courts have done so (Reed v. Village of Shorewood, 704 F.2d 943 [7th Cir. 1983]).
Judges have also been held to be absolutely immune from section 1983 actions, as long as they are performing adjudicative functions (Pierson v. Ray, 386 U.S. 547, 87 S. Ct. 1213, 18 L. Ed. 2d 288 [1967]; Stump v. Sparkman, 435 U.S. 349, 98 S. Ct. 1099, 55 L. Ed. 2d 331 [1978]). Judges are considered to be performing their adjudicative functions as long as they had jurisdiction over the subject matter at the time they acted and the action was a judicial act. A minority of lower courts have extended this absolute judicial immunity to quasi-judicial agencies, such as parole boards, when they have performed functions similar to those of judges (Johnson v. Wells, 566 F.2d 1016 [5th Cir. 1978]). Absolute judicial immunity has also been extended in some cases to those judicial employees who act under the direction of the judge, such as a law clerk, court administrator, paralegal, or court reporter (Lockhart v. Hoenstine, 411 F.2d 455 [3d Cir. 1969]).
State prosecuting attorneys who are acting within the scope of their duty in presenting the state's case are also absolutely immune from suits for damages under section 1983 claims but are not absolutely immune from suits seeking prospective relief (Imbler v. Pachtman, 424 U.S. 409, 96 S. Ct. 984, 47 L. Ed. 2d 128 [1976]). Other state officials who act in a prosecutorial role are similarly immune. The Supreme Court differentiated public defenders, however, in Polk County v. Dodson, 454 U.S. 312, 102 S. Ct. 445, 70 L. Ed. 2d 509 (1981), holding that they do not act under color of state law when performing their duties and therefore are not in need of immunity because their conduct is not covered by section 1983.
Witnesses who testify in court are absolutely immune from section 1983 actions for damages, even if the claim arises out of the wit- ness's perjured testimony (Briscoe v. LaHue, 460 U.S. 325, 103 S. Ct. 1108, 75 L. Ed. 2d 96 [1983]).
The Supreme Court has also recognized a qualified immunity defense to section 1983 actions in certain circumstances. Most state and local officials and employees, who do not enjoy absolute immunity, are entitled to qualified immunity. Thus, a prosecuting attorney who enjoys absolute immunity in performing her prosecutorial functions may also enjoy a qualified immunity in hiring and firing subordinates. The Supreme Court has held that school board members, state mental institution administrators, law enforcement officers, prison officials, and state and local executives have qualified immunity (Wood v. Strickland, 420 U.S. 308, 95 S. Ct. 992, 43 L. Ed. 2d 214 [1975]; O'Connor v. Donaldson, 422 U.S. 563, 95 S. Ct. 2486, 45 L. Ed. 2d 396 [1975]; Pierson v. Ray, 386 U.S. 547, 87 S. Ct. 1213, 18 L. Ed. 2d 288 [1967]; Procunier v. Navarette, 434 U.S. 555, 98 S. Ct. 855, 55 L. Ed. 2d 24 [1978]; Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 [1974]). Most federal circuit courts have deemed that parole board members and prison disciplinary committee members have qualified immunity (Fowler v. Cross, 635 F.2d 476 [5th Cir. 1981]; Thompson v. Burke, 556 F.2d 231 [3d Cir. 1977]). Lower courts have extended the defense of qualified immunity to a number of other officials, such as city managers, county health administrators, and state Department of Veterans' Affairs trust officers.
If the defendant can raise the defense of absolute or qualified immunity, then it is his duty to plead it (Gomez v. Toledo, 446 U.S. 635, 100 S. Ct. 1920, 64 L. Ed. 2d 572 [1980]).
Remedies
The Supreme Court has held that section 1983 creates "a species of tort liability" (Imbler v. Pachtman, 424 U.S. 409, 96 S. Ct. 984, 47 L. Ed. 2d 128 [1976]). Thus, the Supreme Court has held that, as in tort law, a section 1983 plaintiff is entitled to receive only nominal damages, not to exceed one dollar, unless she or he can prove actual damages (Carey v. Piphus, 435 U.S. 247, 98 S. Ct. 1042, 55 L. Ed. 2d 252 [1978]). The jury is not entitled to place a monetary value on the constitutional rights of which the plaintiff was deprived (Memphis Community School District v. Stachura, 477 U.S. 299, 106 S. Ct. 2537, 91 L. Ed. 2d 249 [1986]). Plaintiffs bear the burden, therefore, of presenting evidence of all expenses incurred, such as medical or psychiatric expenses, lost wages, and any damages due to pain and suffering, emotional distress, or damage to reputation. The plaintiff is also under a burden to mitigate his damages, and the award of damages may be reduced to the extent that the plaintiff failed to do so.
A section 1983 plaintiff is also required to prove that a federal right was violated and, similar to tort law, that the alleged violation was a proximate or legal cause of the damages that the plaintiff suffered (Arnold v. IBM Corp., 637 F.2d 1350 [9th Cir. 1981]).
The Supreme Court has also held that, similar to tort law, punitive damages are available under section 1983 (Smith v. Wade, 461 U.S. 30, 103 S. Ct. 1625, 75 L. Ed. 2d 632 [1983]). A plaintiff is entitled to punitive damages if the jury finds that the defendant's conduct was reckless or callously indifferent to the federally protected rights of others, or if the defendant was motivated by an evil intent. The jury has the duty to assess the amount of punitive damages. Because the purpose of punitive damages is to punish the wrongdoer, such damages may be awarded even if the plaintiff cannot show actual damages (Basista v. Weir, 340 F.2d 74 [3d Cir. 1965]). As in tort law, the judge has the right to overturn a jury verdict if the jury awards what the judge considers to be excessive punitive damages.
Courts also have broad power to grant equitable relief to plaintiffs in section 1983 actions. Equitable remedies that courts have provided in the past include school desegregation, restructuring of state mental health facilities, and restructuring of prisons (United States v. City of Yonkers, 96 F. 3d 600 [2nd Cir. 1996]; Wyatt v. Stickney, 344 F. Supp. 373 [M.D. Ala. 1972]; Hutto v. Finney, 437 U.S. 678, 98 S. Ct. 2565, 57 L. Ed. 2d 522 [1978]). When the court does provide equitable relief, it usually also provides ongoing evaluation and supervision of the enforcement of its orders.
The Civil Rights Attorney's Fee Awards Act of 1976 (42 U.S.C.A. § 1988[b]) allows for the award of reasonable attorneys' fees to the prevailing party in cases brought under various federal civil rights laws, including section 1983. This provision applies whether or not compensatory damages were awarded. This provision also applies whether the plaintiff or the defendant prevails. However, if the defendant is the prevailing party, attorneys' fees have been held to be appropriate only where the lawsuit was "vexatious, frivolous, or brought to harass or embarrass the defendant" (Hensley v. Eckerhart, 461 U.S. 424, 103 S. Ct. 1933, 76 L. Ed. 2d 40 [1983]). In addition, section 1988 does not require that the attorneys' fees awarded be in proportion to the amount of damages recovered (City of Riverside v. Rivera, 477 U.S. 561, 106 S. Ct. 2686, 91 L. Ed. 2d 466 [1986]).
Rule 68 of the Federal Rules of Civil Procedure can lead to the adjustment of the amount of damages awarded by a jury in a section 1983 case. Enacted to encourage parties to settle their matters out of court, rule 68 provides that if the plaintiff rejected a settlement offer made by the defendant before trial that is better than the award the plaintiff ultimately received in the trial, the defendant is not liable for plaintiff's attorneys' fees incurred after the time the defendant made the settlement offer (Marek v. Chesny, 473 U.S. 1, 105 S. Ct. 3012, 87 L. Ed. 2d 1 [1985]). Under rule 68, section 1983 plaintiffs need to carefully consider any settlement offers made by the defendants.
Bars to Relief
Section 1983 does not provide a specific statute of limitations, which is a time limit in which a claim must be brought after the alleged violation occurred. But 42 U.S.C.A. § 1988 (1976) states that where the federal law does not provide a statute of limitations, state law shall apply. In determining which state statute of limitations to apply in a section 1983 case, the Supreme Court has held that in the interests of national uniformity and predictability, all section 1983 claims shall be treated as tort claims for the recovery of personal injuries (Wilson v. Garcia, 471 U.S. 261, 105 S. Ct. 1938, 85 L. Ed. 2d 254 [1985]). If the state has various statutes of limitations for different intentional torts, the Supreme Court mandates that the state's general or residual personal injury statute of limitations should apply (Owens v. Okure, 488 U.S. 235, 109 S. Ct. 573, 102 L. Ed. 2d 594 [1989]).
The Supreme Court has also held that state tolling statutes, which provide a plaintiff with an additional period of time in which to bring a lawsuit equal to the period of time in which the plaintiff was legally disabled, apply to section 1983 cases (Board of Regents v. Tomanio, 446 U.S. 478, 100 S. Ct. 1790, 64 L. Ed. 2d 440 [1980]).
Under section 1983, the statute of limitations does not begin to run until the cause of action accrues. The cause of action accrues when "the plaintiff knows or has reason to know of the injury which is the basis of the action" (Cox v. Stanton, 529 F.2d 47 [4th Cir. 1975]). However, in employment law cases, the Supreme Court has held that the cause of action accrues when the discriminatory act occurs (Delaware State College v. Ricks, 449 U.S. 250, 101 S. Ct. 498, 66 L. Ed. 2d 431 [1980]). Thus, if an employee is being terminated for reasons that violate section 1983, the statute of limitations begins on the day that the employee learns of the termination, not when the termination actually begins (Chardon v. Fernandez, 454 U.S. 6, 102 S. Ct. 28, 70 L. Ed. 2d 6 [1981]).
The legal rules of res judicata (claim preclusion) and collateral estoppel (issue preclusion) apply to section 1983 claims. This means that federal courts must give state court judgments the same preclusive effect that the law of the state in which the judgment was rendered would give. Plaintiffs need to be careful to raise all potential federal claims in cases brought in state court because they will not be allowed to bring those claims later in federal court after the state court has rendered a decision on the issues before it.
A plaintiff may waive his or her right to sue under section 1983, but such a waiver may be deemed unenforceable if "the interest in its enforcement is outweighed in the circumstances by a public policy harmed by enforcement of the agreement" (Town of Newton v. Rumery, 480 U.S. 386, 107 S. Ct. 1187, 94 L. Ed. 2d 405 [1987]).
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