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Tuesday, May 29, 2012

Class (of One) Conflict

A fascinating set of opinions has been released by the Seventh Circuit in a case dealing with the so-called "class-of-one" theory of equal protection.  Del Marcelle v. Brown County.  The case deals with a plaintiff's claim that the defendant county failed to respond to his claims of harassment by a motorcycle gang (if true, the gang's conduct is pretty serious).  The plaintiff claimed that county law enforcement refused to help, and, indeed, that some officers were in cahoots with the gang members.

The district court dismissed the claim, reasoning, based on cases such as DeShaney v. Winnebago County and Town of Castle Rock v. Gonzalez, that there was no due process right to police protection.  On appeal, the 7th Circuit panel noted that the complaint could be read to allege a claim that the county violated the plaintiff's equal protection rights under the class-of-one theory first accepted in Village of Willowbrook v. Olech.  Before deciding the case, the full court heard the case en banc.  The result, announced on May 17, was extremely interesting.

First, a very quick primer on the class-of-one theory.  Classic equal protection doctrine deals with groups -- discrimination based on race, sex, whether you rent your truck out for other's advertising or use it for you own, etc.  But in Olech the Court, in a short per curiam opinion joined in by all the justices except Justice Breyer, announced that individuals who suffered irrational discrimination could bring equal protection claims, even if they didn't claim discrimination based on a group characteristic.  Justice Breyer concurred, but, expressing the same concern that had occupied the lower court (coincidentally, the 7th Circuit, in an opinion written by Judge Posner), he argued that a class-of-one plaintiff should be required to prove not just irrational discrimination, but animus.  He worried, as did Judge Posner, that to rule otherwise would open the door for a limitless variety of lawsuits where unhappy citizens complained that government didn't give them something that they gave someone else (or, more likely, that the government burdened the plaintiff when not imposing similar burdens on similarly situated people).  It doesn't take much thought to realize how far this could go: if you're the lucky driver getting a speeding ticket when everyone else on the highway was also speeding, and if the policeman had no particular reason for singling you out, were you the victim of an equal protection violation?

This concern over gave rise to a decade's worth of cases where lower courts have struggled with the scope of the class-of-one theory.  That period was punctuated by the Court's decision in Engquist v. Ore. Dept of Agriculture, where the Court refused to apply the class-of-one theory to government employment claims, on the ground that government employment decisions, as inherently discretionary, were not suited to class-of-one challenges.  But this ruling was (at least formally) limited to the employment context, leaving lower courts to puzzle out how its analysis fit with the Court's broad endorsement of such challenges in Olech.

Enter the 7th Circuit.  The court split badly on the question how to approach such challenges.  Four judges, led by Judge Posner (who wrote the appellate opinion in Olech that insisted on animus as part of a plaintiff's claim), insisted that class-of-one claims had to include at least "some improper personal motive for the discriminatory treatment."  Maybe not animus -- although it's easy enough to slap the label "animus" on a finding that there was an "improper personal motive."  It's quite a performance: in earlier post-Olech cases he had all-but re-imposed the animus requirement the Supreme Court majority did not require.  Here he seems to even one step further.  His opinion (which controlled the result, given the separate concurrence of Judge Easterbrook) affirmed the trial court's dismissal, without leave to re-plead.

Five judges, led by Judge Wood, attempted to harmonize the Court's and the lower courts' thinking on class-of-one claims.  Judge Wood concluded that plaintiffs needed to allege "intentional and irrational" discrimination -- the key word here being "intentional."  Animus, she said, was not a requirement, though it would help establish discriminatory "intent."  These judges would have allowed the plaintiff to re-plead his complaint.

The opinions in this case are rich.  The class-one-theory, while seemingly a minor doctrinal corner, raises foundational questions about equal protection law.  What does it mean that equal protection is an individual right?  What is irrationality in the equal protection context?  What role does animus play?  Are there areas where government is allowed to single out people in ways that might be described as "irrational"?  I've written some about these issues (here and here), as have others.  For those of you who are interested in equality law and haven't given this theory a lot of thought, it's worth a look, especially now that the 7th Circuit has teed up what seems like an ideal vehicle for Supreme Court to consider the issue yet again.

Posted by Bill Araiza on May 29, 2012 at 04:40 PM in Constitutional thoughts | Permalink

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Although extremely few Attorneys have taken the time and mustered the courage to openly condemn the Doctrine of Unauthorized Deprivation in published articles, (see e.g., Time to Bury the Shocks the Conscience Test http://scholar.valpo.edu/law_fac_pubs/117/ by Rosalie Berger-Levinson Esq.) some Attorneys have written obscure Briefs and Memorandums of Law that describe and condemn the Doctrine, while asking various Courts to prevent the application or expansion of the Doctrine.

In this Attorney's Reply Brief http://www.scotusblog.com/movabletype/archives/Reply%20Brief%20(final).pdf in support of a Petition to the US Supreme Court (Cert. Denied), the attorney points out the ever-exanding Doctrine of Unauthorized Deprivations (referred to as the "Parratt-Hudson doctrime" but the Doctrine includes other cases including Sacramento County v. Lewis, Albright v. Oliver and many others) and correctly identifies some of the terrible consequences of the Doctrine:

Questions Presented:
"In Cleveland Board of Education v. Loudermill, 470 U532 (1985), this Court held that tenured state employees have a right under the Due Process Clause to notice and a hearing before they are terminated. The courts of appeals are divided over the following question: Does the failure to provide the pre-termination hearing required under Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), no longer violate the Due Process Clause if denial of the hearing also contravenes state law and state law provides a post-termination remedy?
Reply Brief:
"Finally, as described in the petition (at 15-28), the First Circuit’s decision effects a breathtaking, and erroneous, expansion of the Parratt-Hudson doctrine. The First Circuit rule prevents victims of even the most serious violations of the most basic due process rights from seeking a federal remedy whenever state law also prohibits the conduct and provides a post-deprivation remedy.
"This result is contrary to the basic purposes of the Due Process Clause and 42 U.S.C. 1983, both of which were enacted in large part as a response to the “random and unauthorized” actions of state officials who arbitrarily deprived newly freed slaves of their lives and property in the face of state laws that promised equal treatment and fair procedures. See, e.g., United States v. Price, 383 U.S. 787, 801 (1966); Monroe v. Pape, 365 U.S. 167, 174-76 (1961). The First Circuit’s reading of Parratt-Hudson completely undermines those purposes, withdrawing a federal forum from victims of even the most egregious violations of the Constitution’s most fundamental due process rights whenever the State happens to have incorporated those rights into state law as well. By the same token, the First Circuit permits a federal suit for less significant due process claims whenever a State has failed to incorporate federal due process standards into state law. Neither this Court, nor the framers of the Due Process Clause and Section 1983, could have intended to allocate access to federal remedies in such an arbitrary and haphazard manner."
http://www.scotusblog.com/movabletype/archives/Reply%20Brief%20(final).pdf

Basically, the Doctrine of Unauthorized Deprivation seeks to eradicate ALL Rules and Laws as controls upon the administration of State and Federal Government, and to reduce all persons to a complete subjection to the Arbitrary Will of the Masters insofar as whether an individual shall be allowed to enjoy the promised benefit and protection of any Law that exists on paper (even if that Law is a Law that expressly secures the previously-fundamental right to "Prior Notice and Meaningful Opportunity to be Heard"). The Doctrine does not only "prevent victims" from obtaining "a federal remedy", the Doctrine un-teaches a RULE of CONDUCT incorporated in the Executive's Constitutional Oath of Office, and THEREBY CAUSES Executive RULERS to DISREGARD THE LAW/CONSENT OF THE GOVERNED as a LIMITATION OF EXECUTIVE POWER. Thus, the DOCTRINE CAUSES VICTIMS TO BE SUBJECTED TO "the most serious violations of the most basic due process rights."

Ironically, although the facts of the particular case may not seem to be the "most egregious violation" of the Law, this case arose from "Plymouth County" Massachusetts (the defendant is the Sheriff) where the Mayflower Compact established "Just and Equal Laws" and the "Massachusetts Body of Liberties" (one of the first Bills of Rights written in America) ordained a Government of Laws and expressly stated the Rule of Conduct necessary for that form of Government.
"We do, therefore, this day religiously and unanimously decree and confirm these following rights, liberties, and privileges concerning our churches and civil state to be respectively, impartially, and inviolably enjoyed and observed throughout our jurisdiction forever.

1. No man's life shall be taken away, no man's honor or good name shall be stained, no man's person shall be arrested, restrained, banished, dismembered, nor any ways punished, no man shall be deprived of his wife or children, no man's goods or estate shall be taken away from him, nor any way indamaged under color of law or countenance of authority, unless it be by virtue or equity of some express law of the country warranting the same, established by a general court and sufficiently published, or in case of the defect of a law in any particular case by the word of God. And in capital cases, or in cases concerning dismembring or banishment, according to that word to be judged by the General Court.

2. Every person within this jurisdiction, whether inhabitant or foreigner, shall enjoy the same justice and law that is general for the plantation, which we constitute and execute one toward another without partiality or delay.

92. No man shall exercise any tyranny or cruelty toward any brute creature which are usually kept for man's use.

http://www.constitution.org/bcp/mabodlib.htm



Notice that, according to the Doctrine of Unauthorized Deprivation (e.g., Sacramento County v. Lewis) the only vestigial consitutional limitation existing as a restraint upon the Arbitrary Power of the Executive rulers of America is the "rule of conscience" prohibiting "brutal" beatings equivalent to rule ordained for the protection of Domesticated Beasts and Human Slaves under sections 91 and 92 of the Massachusetts Body of Liberties.

The irony of the Doctrine of Unauthorized Deprivations is that the Federal District Courts were CREATED after the first Civil War specifically to meet the increased responsibility that the United States had taken on for the protection of citizens of the United States in the several states and in future states (then-territories).

The 'Equal Protection Clause, found in section 1 of the Fourteenth Amendment, forbids any state to "deny to any person within its jurisdiction the equal protection of the laws." The American equality rule echoes the Ancient Greek constitutional provision described in Pericles' funeral oration: "If we look to the laws, they afford equal protection to all [citizens]". Except, the American equality rule extends the American citizen's right to the "equal protection of the law" to all "persons" without regard to their status as "citizens" (Yick Wo v. Hopkins, 118 U.S. 356 (1886), in accord with the "Rule of Law", "One Law" and "Golden Rule" principles of the Ancient Hebrews and of the Civil-War era American Christians who ratified the Fourteenth Amendment. The Equal PROTECTION Clause of Fourteenth Amendment was primarily a response to the objection by President Andrew Johnson in his Veto Message vetoing the Civil Rights Act of 1866 where he objected the Congress was asserting power to protect Negro Freemen from abuse by the southern states while not having and asserting a similar power to protect white citizens from encroachments of their fundamental rights by the southern states. President Johnson said he "cannot approve, consistently with my sense of duty to the whole people" the Civil Rights Act of 1866 because its provisions
"establish for the security of the colored race safeguards which go indefinitely beyond any that the General Government has ever provided for the white race. In fact, the distinction of race and color is by the bill made to operate in favor of the colored against the white race. The tendency of the bill must be to resuscitate the spirit of rebellion, and to arrest the progress of those influences which are more closely drawing around the States the bonds of union and peace. Entertaining these sentiments, it only remains for me to say that I will cheerfully co-operate with Congress in any measure that may be necessary for the preservation of civil rights of the freedmen, as well as those of all other classes of persons throughout the United States, by judicial process under equal and impartial laws, or conformably with the provisions of the Federal Constitution."
In BARTEMEYER v. IOWA, 85 U.S. 12 (1873), Justice Field explained how the Fourteenth Amendment OBVIATED this OBJECTION of President Andrew Johnson to the Civil Rights Act of 1866 and similar objections to other recent acts that protected only the black freedmen:
"Before this [Fourteenth] amendment and the thirteenth amendment were adopted, the States had supreme authority over all these matters, and the National government, except in a few particulars, could afford no protection to the individual against arbitrary and oppressive legislation. After the civil war had closed, the same authority was asserted, and, in the States recently in insurrection, was exercised to the oppression of the freedmen; and towards [white] citizens of the North seeking residence there, or [white] citizens resident there who had maintained their loyalty during the war for nationality, a feeling of jealousy and dislike existed which could not fail soon to fined expression in discriminating and hostile legislation. It was to prevent the possibility of such legislation in future, and its enforcement where already adopted, that the fourteenth amendment was directed. It grew out of the feeling that a union which had been maintained by such costly sacrifices was, after all, worthless if a [white] citizen could not be protected in all his fundamental rights everywhere—North and South, East and West throughout the limits of the Republic. The amendment was not, as held in the opinion of the majority, primarily intended to confer citizenship on the negro race. It had a much broader purpose; it was intended to justify legislation, extending the protection of the National government over the common rights of all [white] citizens of the United States, and thus obviate OBJECTIONS to the legislation adopted for the protection of the emancipated race. It was intended to make it possible for all persons, which necessarily included those of every race and color, to live in peace and security wherever the jurisdiction of the nation reached. It, therefore, recognized, if it did not create, a National citizenship, and made all persons citizens except those who preferred to remain under the protection of a foreign government; and declared that their privileges and immunities, which embrace the fundamental rights belonging to citizens of all free governments, should not be abridged by any State. This National citizenship is primary, and not secondary. It clothes its possessor, or would do so if not shorn of its efficiency by construction, with the right, when his privileges and immunities are invaded by partial and discriminating legislation, to appeal from his State to his Nation, and gives him the assurance that, for his protection, he can invoke the whole power of the government. This case was considered by the court in connection with the Slaughter-House Cases, although its decision has been so long delayed. I have felt, therefore, called upon to point out the distinction between this case and those cases, and as there has been some apparent misapprehension of the views of the dissenting judges, to restate the grounds of their dissent."
BARTEMEYER v. IOWA, 85 U.S. 12 (1873)

See also Monroe v. Pape, footnote 38 where the 42nd Congress passing the April 21, 1871 "Act to Enforce the Provisions of the Fourteenth Amendment" rejected a proposed narrow bill that would punish those rulers who caused or allowed violence against persons "by reason of his race, color, or previous condition of servitude" in favor of enacting current 42 U.S.C. § § 1985(2)& (3) providing a civil remedy against persons acting to intimidate a witness or otherwise conspiring "for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws." 365 U.S. 167 (1960). See also Collins v. Hardyman, 341 U.S. 651 (1951) acknowledging that the 1871 Act To Enforce the Equal Protection Provisions of the Fourteenth Amendment (42 USC § 1985(3)) is available to protect white citizens from state-sponsored private violence. (But see the influence of the NAACP Brief in the Court's decision in Griffin v. Breckenridge, 403 US 88 (1971) wherein this Act to Enforce the Equal Protection Clause of Fourteenth Amendment was suddenly deemed to be intended by Congress only to protect blacks from physical violence)

The Supreme Court has explained that the Equal Protection of the Laws Clause "is often associated in the [Fourteenth] amendment with the due process [of law] clause and it is customary to consider them together. It may be that they OVERLAP, that a violation of one may at times involve the violation of the other.... The due process clause requires that every man shall have ... the benefit of the general law, ... so that every citizen shall hold his life, liberty and property and immunities under the protection of the general rules which govern society. It of course tends to secure equality." Truax v. Corrigan, 257 US 312, 331, 338 (1921).

The Supreme Court recognized that the "Due Process Clause of the Fifth Amendment, later incorporated into the Fourteenth Amendment, was intended to give Americans at least the protection against governmental power that they had enjoyed as Englishmen against the power of the Crown." Ingraham v. Write, 430 U.S. 651, 672-3 (1976) And, that "Magna Charta ... is the origin of the provision, embodied in the Fifth Amendment of the Constitution of the United States, that no man shall be deprived of life, liberty, or property without due process of law." United States v. Lee, 106 U.S. 196, 228 (1882) (dissenting opinion); Accord Twinning v. New Jersey, 211 U.S. 78, 102, 29 S. Ct. 14 (1908).

The American Colonists' claim of right to the Equal Protection of the Law was embodied in the promise of Magna Carta that no free man would be put "Out" of the protection of the "Law" but by operation of the general law of the land.

"These principles grow out of the proposition universally accepted by American courts on the authority of Coke, that the words `due process of law' are equivalent in meaning to the words `law of the land,' contained in that chapter of Magna Charta, which provides that 'no freeman shall be taken, or imprisoned, or disseised [of his property], or OUTLAWED, or exiled, or anywise destroyed, ... but by ... the law of the land.'" Twinning v. New Jersey, 211 U.S. 78 (1908).

"The equal protection of the laws is a pledge of the protection of equal laws" Yick Wo v. Hopkins, 118 U.S. 356 (1886) "Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and adminis-tered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution." Yick Wo v. Hopkins, 118 U.S. 356 (1886)

"Fairly construed [the Fourteenth Amendment] may be said to rise to the dignity of a new Magna Carta. Every word employed has an established signification. 'Due process of law' is the application of the Law as it exists, in the fair and regular course of administrative procedure. 'The equal protection of the laws' places all upon a footing of legal equality and gives the same protection to all for the preservation of life, liberty, and property, and the pursuit of happiness." Supreme Court Justice Swayne J, The Slaughter-House Cases, 83 U.S. 36, 125-27 (1872) (Swayne J., Dissenting).

"The Fourteenth Amendment, in declaring that no State 'shall deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws,' undoubtedly intended . . . that equal protection and security should be given to all [and] they should have like access to the courts of the country for the PROTECTION of their persons and property, the PREVENTION and redress of wrongs." Barbier v. Connolly, 113 U.S. 27 (1885)

See e.g., Dwares v. City of New York, 985 F.3d 94 (2d Cir. 1993) (due process clause may be violated when the police affirmatively create or increase the risk of theft or private violence, such as when they aid or abet the private actor's violence against someone else). Accord Collins v. Hardyman, 341 U.S. 651 (1951) (physical violence by favored persons against persons because they have been disfavored by the state violates right to equal protection); Accord Okin v. Vill. of Cornwall-on-Hudson Police Dep't, 577 F.3d 415, 427 (2d Cir. 2009) ("explicit facilitation" of private violence not required. "the affirmative conduct of a government official may give rise to an actionable due process violation if it communicates, explicitly or implicitly, official sanction of private violence" against a particular disfavored person)

In Truax, the Supreme Court further explained, that "Our whole system of law is predicated on the general fundamental principle of equality of application of the law. `All men are equal before the law,' `this is a government of laws and not of men.' `No man is above the law,' were all maxims showing the spirit in which legislatures, executives, and courts are expected to make, execute and apply laws. But the framers and adopters of the [fourteenth] amendment were not content to depend on a mere minimum secured by the due process clause, or upon the spirit of equality which might not be insisted on by local [government]. Therefore they embodied that spirit in a specific guaranty. The guaranty [of equal protection of the laws] was aimed at undue favor and individual or class privilege, on the one hand, and at hostile discrimination or the oppression of inequality on the other. It sought equality of treatment of all persons ... similarly situated. .... It means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in the same place and under like circumstances." Truax v. Corrigan, 257 US 312, 331, 338 (1921).

The Equal Protection of the Laws Clause "prohibits any State to deny to any individual the equal protection of the laws." Cotting v. Kansas City Stock Yards Co Etc. 183 US 79, 110 (1902). "Equal protection of the laws requires equal operation of the laws upon all persons in like circumstances." Maxwell v. Bugbee, 250 US 525, 541 (1919). It "means that the rights of all persons must rest upon the same rule under similar circumstances ... so that all persons similarly circumstanced shall be treated alike." Louisville Gas Co. v. Coleman, 227 US 32, 37, 38 (1928).

Thus, the Equal Protection Clause includes a "specific guarantee" that no person shall be intentionally put out of the "protection of the laws". Thus, a state violates the Equal Protection Clause when it denies to one person the protection of a rule (i.e. Law) that provides protection to other persons in the same class (i.e., the same circumstances). ALLEGHENY PITTSBURGH COAL v. WEBSTER COUNTY, 488 U.S. 336 (1989); Snowden v. Hughes, 321 US 1 (1944); Collins v. Hardyman, 341 U.S. 651 (1951) Such a violation may occur for example when an executive official intentionally violates or misinterprets a state Law with a purpose to deny a particular person or persons the due protection of the established rule that is applied to others in the same circumstances. Id. BURT v. CITY OF NEW YORK, 156 F.2d 791 (2d Cir. 1946); SELZER v. BERKOWITZ, 477 F.Supp. 686 (1979); Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir.1993)

Unconstitutional "discrimination is most often found in the class-based context (after all, most equal protection claims are grounded in allegedly discriminatory statutes or ordinances — which by their very nature create classifications — rather than complaining of the unequal enforcement of statutes or ordinances fair on their face). But if purposeful and invidious discrimination rears its head by making an individual an outlaw, intentionally deprived of the protection the law affords all others, this Court will not hold that individual unsheltered by the Equal Protection Clause in contravention of its literal language."
OSSLER v. VILLAGE OF NORRIDGE, 557 F. Supp. 219 (Milton Shadur J., N.D. Ill. 1983)

"The safeguards of 'due process of law' and 'the equal protection of the laws' summarize the history of the English-speaking peoples running back to Magna Charta and reflected in the constitutional development of our people." Malinski v. New York, 324 U.S. 401, 413-14 (1945) (separate opinion of Frankfurter, J.).

"When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power. [L]aw is the definition and limitation of power. It is, indeed, quite true that there must always be lodged somewhere, and in some person or body, the authority of final decision; and in many cases of mere administration, the responsibility is purely political, no appeal lying except to the ultimate tribunal of the public judgment, exercised either in the pressure of opinion, or by means of the suffrage. But the fundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in securing to men the blessings of civilization under the reign of just and equal laws, so that, in the famous language of the Massachusetts bill of rights, the government of the commonwealth 'may be a government of laws and not of men.' For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself."
YICK WO v. HOPKINS, 118 U.S. 356 (1886)

I noticed a while ago before her confirmation to the Supreme Court that Sotomayor is a willing disciple of the Doctrine of Unauthorized Deprivation.
"His appointee Sotomayer is a proponent of the Doctrine of Unauthorized Deprivation:
"Judge Sotomayor first explained that Rivera-Powell's due process claim failed. She noted that the "Due Process Clause does not protect against all deprivations of constitutionally protected interests in life, liberty, or property, only against deprivations 'without due process of law'." In fact, the key to determining "whether a constitutional violation has occurred is to ask [not What Law has been established to define and limit the power of the executive, but] what process the State provided [to decide afterwards whether the official's criminal conduct was legal or illegal]." .... Judge Sotomayor considered whether Rivera-Powell's [deprivaton] resulted from 'random and unauthorized' conduct or established state [laws].
http://epic.org/privacy/sotomayor/

https://groups.google.com/forum/#!topic/constitutional-compliance/mhtBJgdoJtU
Sotomayor will no doubt extend it further, and probably she personally practices "unauthorized deprivations" in her judicial work involving the little people.

Essentially, the Doctrine of Unauthorized Deprivation is a direct repudiation of the principle of the Declaration of Independence that the powers of executive rulers is limited by the law/consent of the governed, and according to the Hudson case, it is also a revocation of the Rights of Englishmen to the protections of Magna Carta that colonial Americans claimed under the Colonial Charters. In the Hudson case, the Supreme Court explained:
"We granted certiorari in No. 82-1630 to decide whether a prison inmate has a reasonable expectation of privacy in his prison cell entitling him to the protection of the Fourth Amendment against unreasonable searches and seizures. We also granted certiorari in No. 82-6695, the cross-petition, to determine whether our decision in Parratt v. Taylor, 451 U. S. 527 (1981), which held that a negligent deprivation of property by state officials does not violate the Fourteenth Amendment if ... should extend to intentional deprivations of property."
The Hudson case established the idea that executive officials have no duty under their Oath of Office "to refrain" from abusing their powers to intentionally STEAL property, life, or liberty from incarcerated slaves; and no executive or judicial agent of the government witnessing such a crime in progress has any duty to resist or restrain a lawless ruler from stealing life, liberty or property. The Court also gave helpful practical advice to help executive criminals "bent" on stealing property to evade interception: "one bent on intentionally depriving a person of his property might well take affirmative steps to avoid signalling his intent." The false premise of Hudson is the false idea that "without Due Process of Law" refers to something other than a "process of Law" authorizing a deprivation. (The "Law" and its process does not regulate illegal/unauthorized acts, Law regulates only legal/authorized acts.) No amount of "process" can bring a deprivation within "due ... law" if the deprivation is entirely unauthorized/theft. But, no one paid attention to the revocation of Magna Carta in the Hudson case, because traditionally and expressly, the rights of Magna Carta are only secured to "free men", not to incarcerated slaves. So, taking the rights of free men secured by Magna Carta away from an incarcerated slave did not attract attention to the subversive precedent set in Hudson. It was easy, like taking crack away from a crack whore bound in handcuffs: no one understood that it was meant to be a precedent to enable gangs of police officers to steal entire houses, cars, guns, food, medicine, jewels, cash, papers, photos and other personal effects from free men. (E.g., a house seized and stolen by police officers in http://www.leagle.com/decision/2000829212F3d617_1768.xml/CRUZ-ERAZO%20v.%20RIVERA-MONTA%C3%91EZ ] In the Hudson case, the Judges specifically approved of the misuse of executive power to "intentionally" committing "unauthorized deprivations" of "legal papers" and "things irreplacable [sic], and incompensable". So, it may be fairly said that the Doctrine revokes the Fourth Amendment promise that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable ... seizures, shall not be violated," That promise was derived from Magna Carta, so it had to go. That Fourth Amendment Promise is Gone, since the Supreme Court Doctrine teaches police that they may seize and move into any house that the officers covet, and can summarily sell or dispose of all the home-owners's personal possessions, photographs, legal papers, and other effects, and may share the spoils with Judges, all without violating their Constitutional Oath of Office. [In my opinion, people who refuse to discuss the second amendment right and the right of physical self-defense in view of this overt subversion of the fundamental rights of free men, are moral cowards and are unworthy of citizenship.]

Thus, the Doctrine is essentially a counter-revolution by American Judges that places all Americans into the position of subjection to an Arbitrary form of Government that they feared they would be enslaved to if they had lost the Revolutionary War. The Doctrine holds that slaves (e.g., incarcerated prisoners like Mr. Taylor in the Parratt case, and Mr. Hudson in the Hudson case) are not entitled to the protection of the US Constitution and Federal Courts from their lawless Masters; and, all persons whether incarcerated or not are deemed slaves of their ruling masters, who are free to take life, liberty and property at will for their own enrichment or pleasure, except insofar they do so in such a "brutal" manner that would "shock the conscience" of our federal masters. Essentially, it is a simple restatement of the Modern Law of Master-and-Slave that existed in the Southern states prior to the first civil war, except that the rule is extended to the enslavement of men and women of all races and of all conditions.

And, there are racial overtones to the Doctrine, because of the Mythology that the Fourteenth Amendment was adopted for the special protection of the emancipated (black) race: Because the Supreme Court judges announced the Doctrine of Unauthorized Deprivation in the context of two prisoner cases Parratt and Hudson, (the premise being that incarcerated SLAVES are not entitled to the protection of the Federal Courts from their MASTERS; the same exact reasoning that was adopted by the Supreme Court in the notorious black-slave case of Dred Scott v. Sandford), the Doctrine is supported as a reaction to the presence of freed blacks in America with high proportions of them being in American prisons (the Doctrine was predicted a hundred years earlier and and assumes that if white peoples are declaring themselves to be equal to blacks, then whites also are no longer worthy of any respect from the elite Federal Judges for their rights of life, liberty or property). [In much the same way that Planned Parenthood was established by Margaret Sanger, and Roe v. Wade was decided, with a thought about trying to mitigate the high fertility rate of unmarried black women. According to Sanger's expert opinions as a nurse and educator, all blacks are feral "human weeds,' 'reckless breeders,' 'spawning... human beings who never should have been born.", but of course, this was before the discovery of DNA and the revelations made possible by gentic studies. However, whatever her misconceptions, the self-selection she made possible was approximately the same with the selection result that would be obtained by selection practiced in accordance with DNA science.] The Doctrine of Unauthorized Deprivation empowers all police officers to perform intentional and selective killing of unborn babies, and to expressly threaten to kill babies, as long as they practice the approved terrorism/shoving method performed in the Cruz-Erazo case to kill the baby http://www.leagle.com/decision/2000829212F3d617_1768.xml/CRUZ-ERAZO%20v.%20RIVERA-MONTA%C3%91EZ

Now, do you understand, from reading this and the links in the email below, what the Supreme Court's "DOCTRINE of UNAUTHORIZED DEPRIVATION" is? (And what it is not? It is often pretended that it is an Abstention doctrine for the reduction of the caseload Federal Courts, or an interpretation of 42 USC section "1983". Hudson. But, that is not what it is)

Are you able to describe the Doctrine in your own words?

It exists as a Doctrine (spanning many decisions of the Supreme Court linked by one basic unAmerican philosophy: that the Law/Consent of the Governed simply does not matter, and is no limitation upon executive power). There is a need to make people aware of the Doctrine, and of its promotors, and of its manifestations, which can be summarized as "EVIL-Lawless government" as illustrated in the Cruz-Erazo case:
http://www.leagle.com/decision/2000829212F3d617_1768.xml/CRUZ-ERAZO%20v.%20RIVERA-MONTA%C3%91EZ

How do you "Feel" about what happened to the Cruz-Erazo family in accordance with the Doctrine?

How do you "Feel" about the Doctrine of Unauthorized Deprivation? [How do you feel bout the idea that you, like Dred Scott, are not worthy of the protection of the Federal Courts as against the mere will of your rapacious Masters?]

If you have children, do you feel that the Doctrine of Unauthorized Deprivation establishes the appropriate form of government for them to live under (as slaves, subject to unauthorized deprivations of life, liberty and property)?

The Chinese people are strugging also, but the Chinese are moving slowly towards establishing a Government of Laws while the United States moves away from a Government of Laws.

I noticed a while ago before her confirmation to the Supreme Court that Sotomayor is a willing disciple of the Doctrine of Unauthorized Deprivation.
"His appointee Sotomayer is a proponent of the Doctrine of Unauthorized Deprivation:
"Judge Sotomayor first explained that Rivera-Powell's due process claim failed. She noted that the "Due Process Clause does not protect against all deprivations of constitutionally protected interests in life, liberty, or property, only against deprivations 'without due process of law'." In fact, the key to determining "whether a constitutional violation has occurred is to ask [not What Law has been established to define and limit the power of the executive, but] what process the State provided [to decide afterwards whether the official's criminal conduct was legal or illegal]." .... Judge Sotomayor considered whether Rivera-Powell's [deprivaton] resulted from 'random and unauthorized' conduct or established state [laws].
http://epic.org/privacy/sotomayor/

https://groups.google.com/forum/#!topic/constitutional-compliance/mhtBJgdoJtU
Sotomayor will no doubt extend it further, and probably she personally practices "unauthorized deprivations" in her judicial work involving the little people.

Essentially, the Doctrine of Unauthorized Deprivation is a direct repudiation of the principle of the Declaration of Independence that the powers of executive rulers is limited by the law/consent of the governed, and according to the Hudson case, it is also a revocation of the Rights of Englishmen to the protections of Magna Carta that colonial Americans claimed under the Colonial Charters. In the Hudson case, the Supreme Court explained:
"We granted certiorari in No. 82-1630 to decide whether a prison inmate has a reasonable expectation of privacy in his prison cell entitling him to the protection of the Fourth Amendment against unreasonable searches and seizures. We also granted certiorari in No. 82-6695, the cross-petition, to determine whether our decision in Parratt v. Taylor, 451 U. S. 527 (1981), which held that a negligent deprivation of property by state officials does not violate the Fourteenth Amendment if ... should extend to intentional deprivations of property."
The Hudson case established the idea that executive officials have no duty under their Oath of Office "to refrain" from abusing their powers to intentionally STEAL property, life, or liberty from incarcerated slaves; and no executive or judicial agent of the government witnessing such a crime in progress has any duty to resist or restrain a lawless ruler from stealing life, liberty or property. The Court also gave helpful practical advice to help executive criminals "bent" on stealing property to evade interception: "one bent on intentionally depriving a person of his property might well take affirmative steps to avoid signalling his intent." The false premise of Hudson is the false idea that "without Due Process of Law" refers to something other than a "process of Law" authorizing a deprivation. (The "Law" and its process does not regulate illegal/unauthorized acts, Law regulates only legal/authorized acts.) No amount of "process" can bring a deprivation within "due ... law" if the deprivation is entirely unauthorized/theft. But, no one paid attention to the revocation of Magna Carta in the Hudson case, because traditionally and expressly, the rights of Magna Carta are only secured to "free men", not to incarcerated slaves. So, taking the rights of free men secured by Magna Carta away from an incarcerated slave did not attract attention to the subversive precedent set in Hudson. It was easy, like taking crack away from a crack whore bound in handcuffs: no one understood that it was meant to be a precedent to enable gangs of police officers to steal entire houses, cars, guns, food, medicine, jewels, cash, papers, photos and other personal effects from free men. (E.g., a house seized and stolen by police officers in http://www.leagle.com/decision/2000829212F3d617_1768.xml/CRUZ-ERAZO%20v.%20RIVERA-MONTA%C3%91EZ ] In the Hudson case, the Judges specifically approved of the misuse of executive power to "intentionally" committing "unauthorized deprivations" of "legal papers" and "things irreplacable [sic], and incompensable". So, it may be fairly said that the Doctrine revokes the Fourth Amendment promise that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable ... seizures, shall not be violated," That promise was derived from Magna Carta, so it had to go. That Fourth Amendment Promise is Gone, since the Supreme Court Doctrine teaches police that they may seize and move into any house that the officers covet, and can summarily sell or dispose of all the home-owners's personal possessions, photographs, legal papers, and other effects, and may share the spoils with Judges, all without violating their Constitutional Oath of Office. [In my opinion, people who refuse to discuss the second amendment right and the right of physical self-defense in view of this overt subversion of the fundamental rights of free men, are moral cowards and are unworthy of citizenship.]

Thus, the Doctrine is essentially a counter-revolution by American Judges that places all Americans into the position of subjection to an Arbitrary form of Government that they feared they would be enslaved to if they had lost the Revolutionary War. The Doctrine holds that slaves (e.g., incarcerated prisoners like Mr. Taylor in the Parratt case, and Mr. Hudson in the Hudson case) are not entitled to the protection of the US Constitution and Federal Courts from their lawless Masters; and, all persons whether incarcerated or not are deemed slaves of their ruling masters, who are free to take life, liberty and property at will for their own enrichment or pleasure, except insofar they do so in such a "brutal" manner that would "shock the conscience" of our federal masters. Essentially, it is a simple restatement of the Modern Law of Master-and-Slave that existed in the Southern states prior to the first civil war, except that the rule is extended to the enslavement of men and women of all races and of all conditions.

And, there are racial overtones to the Doctrine, because of the Mythology that the Fourteenth Amendment was adopted for the special protection of the emancipated (black) race: Because the Supreme Court judges announced the Doctrine of Unauthorized Deprivation in the context of two prisoner cases Parratt and Hudson, (the premise being that incarcerated SLAVES are not entitled to the protection of the Federal Courts from their MASTERS; the same exact reasoning that was adopted by the Supreme Court in the notorious black-slave case of Dred Scott v. Sandford), the Doctrine is supported as a reaction to the presence of freed blacks in America with high proportions of them being in American prisons (the Doctrine was predicted a hundred years earlier and and assumes that if white peoples are declaring themselves to be equal to blacks, then whites also are no longer worthy of any respect from the elite Federal Judges for their rights of life, liberty or property). [In much the same way that Planned Parenthood was established by Margaret Sanger, and Roe v. Wade was decided, with a thought about trying to mitigate the high fertility rate of unmarried black women. According to Sanger's expert opinions as a nurse and educator, all blacks are feral "human weeds,' 'reckless breeders,' 'spawning... human beings who never should have been born.", but of course, this was before the discovery of DNA and the revelations made possible by gentic studies. However, whatever her misconceptions, the self-selection she made possible was approximately the same with the selection result that would be obtained by selection practiced in accordance with DNA science.] The Doctrine of Unauthorized Deprivation empowers all police officers to perform intentional and selective killing of unborn babies, and to expressly threaten to kill babies, as long as they practice the approved terrorism/shoving method performed in the Cruz-Erazo case to kill the baby http://www.leagle.com/decision/2000829212F3d617_1768.xml/CRUZ-ERAZO%20v.%20RIVERA-MONTA%C3%91EZ

Now, do you understand, from reading this and the links in the email below, what the Supreme Court's "DOCTRINE of UNAUTHORIZED DEPRIVATION" is? (And what it is not? It is often pretended that it is an Abstention doctrine for the reduction of the caseload Federal Courts, or an interpretation of 42 USC section "1983". Hudson. But, that is not what it is)

Are you able to describe the Doctrine in your own words?

It exists as a Doctrine (spanning many decisions of the Supreme Court linked by one basic unAmerican philosophy: that the Law/Consent of the Governed simply does not matter, and is no limitation upon executive power). There is a need to make people aware of the Doctrine, and of its promotors, and of its manifestations, which can be summarized as "EVIL-Lawless government" as illustrated in the Cruz-Erazo case:
http://www.leagle.com/decision/2000829212F3d617_1768.xml/CRUZ-ERAZO%20v.%20RIVERA-MONTA%C3%91EZ

How do you "Feel" about what happened to the Cruz-Erazo family in accordance with the Doctrine?

How do you "Feel" about the Doctrine of Unauthorized Deprivation? [How do you feel bout the idea that you, like Dred Scott, are not worthy of the protection of the Federal Courts as against the mere will of your rapacious Masters?]

If you have children, do you feel that the Doctrine of Unauthorized Deprivation establishes the appropriate form of government for them to live under (as slaves, subject to unauthorized deprivations of life, liberty and property)?

The Chinese people are strugging also, but the Chinese are moving slowly towards establishing a Government of Laws while the United States moves away from a Government of Laws.


Posted by: Mark R. Ferran | Oct 9, 2014 8:39:40 PM

The reason that we have Judges and Clerks who tamper with the Random-Assignment system http://en.wikipedia.org/wiki/Gerald_Garson to throw cases, Judges who flagrantly LIE "Extremely-troubling-allegations-of-lying-by-judges-in-NY.pdf" http://www.orlytaitzesq.com/wp-content/uploads/2014/04/Extremely-troubling-allegations-of-lying-by-judges-in-NY.pdf) (e.g., lie about the written contents of Affidavits, photographs, papers) (e.g., lie about the content of a party's legal theory, pleadings, motions, and arguments), and who intentionally violate the Right to Be Heard (refusing to Read of consider Pleadings, Witness-Affidavits, papers), and disregard or simply ignore the existing substantive Laws or precedents relied upon, as necessary to throw cases in favor of the favored party (e.g., criminally deviant agents of the Government who have transcended the limits of their lawful authority), is because MOST JUDGES No longer even intend to protect the people from "the violence of public agents transcending the limits of lawful authority" because they do not believe that the Law/Consent of the People is a constitutional limitation upon the powers or actions of rulers.
billstclair.com/ferran/markferran2.html
billstclair.com/ferran/markferran1.html
www.givemeliberty.org/spotlights/archive/march1999/markferran.htm

Rather, the Judges of America now allow all (executive and judicial) public agents to transcend the limits of lawful authority (even to "steal" Houses and other private property for their personal use and enrichment ( Cruz-Erazo ) , to file knowingly-false charges (Albright v. Oliver) to coerce surrender of property or of the liberty to perform lawful acts, commit oppression, extortion, trespass and iniquity (Wilkie v. Robbins ) to steal property on behalf of the Government without Just Compensation, and Perjury) as long as the deviant conduct does not offend the mythical "conscience" of the Judges.

See e.g., the Cruz-Erazo decision http://www.leagle.com/decision/2000829212F3d617_1768.xml/CRUZ-ERAZO%20v.%20RIVERA-MONTA%C3%91EZ ),

Most Federal Judges clearly believe that our rulers have the unlimited power to allow or coerce persons to commit crimes against other persons, and even the power to compel public servants to commit crimes (e.g., Perjury) against citizens. See http://dccircuitreview.com/2011/10/31/the-d-c-circuit-did-not-use-tweezers-it-used-a-sledgehammer/

In the Jackler case, the Second Circuit Court of Appeals purported to find a First Amendment exception to the otherwise-unlimitted power of our rulers to compel people to commit crimes against others.

Compare The DC Federal Court Judges "sledgehammer" view that there is not even a narrow First Amendment exception to the supposedly unlimitted power of our rulers to compel subordinate public servants to commit crimes against us, with this analysis:

"We also think it clear that Jackler's refusal to accede to defendants' demands that he falsely exculpate [Officer] Metakes has a civilian analogue. As indicated by the authorities discussed above, a citizen has a First Amendment right to decide what to say and what not to say, and, accordingly, the right to reject governmental efforts to require him to make statements he believes are false. Thus, a citizen who has truthfully reported a crime has the indisputable right to reject pressure from the police to have him rescind his accusation and falsely exculpate the accused. And, as indicated by laws such as the statutory provisions described in Part II.B. above, a civilian who acceded to such pressure would subject himself to criminal liability, as would a police officer. Of course a police officer has a duty not to substitute a falsehood for the truth, i.e., a duty to tell “nothing but the truth”; but he plainly has that duty as a citizen as well.

http://caselaw.findlaw.com/us-2nd-circuit/1575103.html#sthash.ruMoSSuP.dpuf


In my opinion, the overt claim by our Judges that our rulers have an unlimitted power to coerce us to commit crimes against others, and the unlimitted power to coerce or allow others to commit Perjury and other crimes against us, is belum flagrante against the People and against their Constitution. See, "US Supreme Court Permits "Unauthorized Deprivations" and thereby Declares War Against God and Against The People of the United States" billstclair.com/ferran

In my opinion, the "right to reject pressure" includes the individual Due Process "right to resist"/"right to self-defense" confirmed in the Second Amendment and implicit the Fourth Amendment. http://billstclair.com/ferran/markferran2.html

But, most people, even most attorneys, do not understand that there is a DIFFERENCE beteen lawless "oppression" on one hand, and "the necessary exercise of lawful authority" on the other hand. Rather, the majority focus only upon the superficialities, such as the official title or uniform of the actor, and ignore the question of legality/consent of the governed. George Washington said:
"Knowledge is, in every country, the surest basis of public happiness. ... To the security of a free constitution it [knowledge] contributes in various ways: by convincing those who are entrusted with the public administration, that every valuable end of government is best answered by the [Laws/Consent/Conscience] of the people ; and by teaching the people themselves to know and to value their own rights; to discern and provide against invasions of them; to distinguish between oppression and the necessary exercise of lawful authority; between burthens proceeding from a disregard [of the Laws/Consent/Conscience of the people], and those resulting from the inevitable exigencies of society; to discriminate the spirit of liberty from that of licentiousness—cherishing the first, avoiding the last; and uniting a speedy, but temperate vigilance against encroachments, with an inviolable respect to the laws.
http://teachingamericanhistory.org/library/document/first-annual-message-to-congress/

In early times, the Supreme Court acknowledged that "the essence of slavery" is the "idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life -e.g., property] at the mere will of another":

"When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power. Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but, in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. It is, indeed, quite true that there must always be lodged somewhere, and in some person or body, the authority of final decision, and in many cases of mere administration, the responsibility is purely political, no appeal lying except to the ultimate tribunal of the public judgment, exercised either in the pressure of opinion or by means of the suffrage. But the fundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in securing to men the blessings of civilization under the reign of just and equal laws, so that, in the famous language of the Massachusetts Bill of Rights, the government of the commonwealth "may be a government of laws, and not of men." For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life at the mere will of another seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself."
Yick Wo v. Hopkins, 118 U.S. 356 (1886) http://www.law.cornell.edu/supremecourt/text/118/356

The Supreme Court has explained that the Equal Protection of the Laws Clause

"is often associated in the [Fourteenth] amendment with the due process [of law] clause and it is customary to consider them together. It may be that they overlap, that a violation of one may at times involve the violation of the other.... The due process clause requires that every man shall have ... the benefit of the general law, ... so that every citizen shall hold his life, liberty and property and immunities under the protection of the general rules which govern society. It of course tends to secure equality.... Our whole system of law is predicated on the general fundamental principle of equality of application of the law. `All men are equal before the law,' `this is a government of laws and not of men.' `No man is above the law,' were all maxims showing the spirit in which legislatures, executives, and courts are expected to make, execute and apply laws. But the framers and adopters of the [fourteenth] amendment were not content to depend on a mere minimum secured by the due process clause, or upon the spirit of equality which might not be insisted on by local [government]. Therefore they embodied that spirit in a specific guaranty. The guaranty [of equal protection of the laws] was aimed at undue favor and individual or class privilege, on the one hand, and at hostile discrimination or the oppression of inequality on the other. It sought equality of treatment of all persons ... similarly situated. .... It means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in the same place and under like circumstances."

Truax v. Corrigan, 257 US 312, 331, 338 (1921).


"It will suffice to quote a paragraph from Louisville Gas & Electric Company v. Coleman, Auditor, 277 U.S. 32, 37, 38, 48 S.Ct. 423, 425, 72 L.Ed. 770: 'The equal protection clause, like the due process of law clause, is not susceptible of exact delimitation. ... Certain general principles, however, have been established, in the light of which the cases as they arise are to be considered. In the first place, it may be said generally that the equal protection clause means that the rights of all persons must rest upon the same rule under similar circumstances, Kentucky Railroad Tax Cases, 115 U.S. 321, 337, 6 S.Ct. 57, 29 L.Ed. 414; Magoun v. Illinois Trust & Savings Bank, 170 U.S. 283, 293, 18 S.Ct. 594, 42 L.Ed. 1037, and that it applies to the exercise of all the powers of the state which can affect the individual or his property ..."

HARTFORD STEAM BOILER INSPECTION & INS. CO. v. HARRISON, 301 U.S. 459 (1937) https://bulk.resource.org/courts.gov/c/US/301/301.US.459.355.html

The Supreme Court and other Judges no longer say such things. And, Federal Judges will never quote such statements. And sadly, "Constitutional Law" Professors never quote or teach such statements to their students.

Most Attorneys refuse to even acknowledge that the Doctrine of Unauthorized Deprivation is WRONG, refuse to type even a single sentence questioning the Doctrine of Unauthorized Deprivation or the ugly consequences of its various applications. Very few attorneys have written anything amounting to a Challenge to the Doctrine. See e.g., Rosalie Berger Levinson "Time to Bury the Shocks-the-Conscience Test" http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1551391 (citing at footnote # 175 one of my early section 1983 case attempting to have the Federal Courts condemn lawless seizure/trespass/theft of real property by Town officials: "Ferran v. Nassau, 471 F.3d 363, 369–70 (2d Cir. 2006) (holding that although town‘s use of a landowner‘s parcel as a turnaround for its snow plows and its paving of a road that encroached on the property was -incorrect and ill-advised, it was not the type of conscience-shocking, outrageous behavior that implicates substantive due process)."

See also Ferran v. Town of Poestenkill:
"The Federal District Court decided:
"As far as Plaintiff Nadia Ferran's second parcel of land at issue, the Cropsey Road property, it is apparent that during the summer of 1990 a culvert running underneath the public highway adjacent to plaintiff's land was in fact constructed ... which ... resulted in damage to a section of the stone fence located on one side of the Cropsey Road Property. In addition, Plaintiffs have further produced evidence that a three foot wide, approximately three feet deep, and thirtyseven feet long channel or trench was constructed through Plaintiff Nadia Ferran's land from the end of the culvert at issue to the beginning of another stone fence on Plaintiff's land. At the location where the channel or trench ends, a ten feet by four feet section of a second stone fence has been displayed and damaged. Defendants deny responsibility for the Cropsey Road property culvert, channel or trench, and damage to both stone fences. ... This Court finds that Defendants were in fact responsible ...."
"The Town defendants made no attempt to prove that they had obtained lawful authority by complying with the conditions and regulations prescribed by Highway Law sections 147 and 148 before entering and destroying and depriving her of her property. Instead they acted stealthily, and unlawfully, like common thieves. Therefore, these government agents clearly deviated from or acted outside of Due Process of Law because they failed or refused to "keep within the authority conferred, and observe every regulation which the act makes for the protection or in the interest of the property owner." Chicago, Burlington &c. R'd v. Chicago, 166 U.S. 226, 241 (1896). These defendants certainly did not keep within any "process due according to the law of the land."
"The District Court concluded:

"Let this Court be clear. There is merit to Plaintiff's claim that Henderson Way is their private property and that the Town constructed the Cropsey Road culvert and accompanying trench at issue. Because, however, Plaintiffs have not availed themselves of State procedures to obtain Just Compensation for the Town's actions involving both the Henderson Way property and Cropsey Road property, their TAKINGS claims must fail.. . because their takings claims are premature and must ... be dismissed."

Federal District Court, Ferran v. Town of Poestenkill, (NDNY, No. 91-CV-1090, March 14, 1999).


"Despite the clear facts and the Court's incontrovertible findings that these defendants had deprived us of our property outside of any process of Law, and even though the District Court had determined that the Town's entries, appropriations, and claims to our private property were unlawful and outside of and beyond any law purporting to legalize deprivations, the District Court failed and refused to vindicate and enforce our Constitutional Right to enjoy and possess our property without unlawful and unauthorized governmental interference. After the District Court determined that the defendants had deprived us of our property outside of any process of law, the Court absurdly purported to "dismiss" our case on the grossly erroneous grounds that our constitutional rights were not violated. The Trial Court's decision strangely failed to cite or take notice of the controlling precedent in Ferran v. Town of Nassau, 11 F.3d 21 (2d Cir. 1993). Instead, the District Court cites an unpublished opinion of the other local District Judge,Scullin, whose persistent confusion of the rights of "Due Process" with "Just Compensation" was condemned and repudiated by the Federal Court of Appeals in Ferran v. Town of Nassau, 11 F.3d 21 (2d Cir 1993)

"Before deciding to sue these officials, my mother [Nadia Ferran] complained of this obvious illegality to the Town Supervisor, and asked him to make the Town leave her property alone. She said to him: "You are not supposed to take my property without due process of law." His response to her objection is typical of the mentality of virtually every government official in the County of Rensselaer, N Y, and other places. He replied:

"YOU AND YOUR DUE PROCESS OF LAW!"

Town Supervisor, Richard Amadon, Town of Poestenkill, Rensselaer County, New York, United States. 1988.

http://www.givemeliberty.org/spotlights/archive/march1999/markferran.htm

Some Judges still pretend that New York has a "rules-based court system" Born to Build LLC v. Saleh, 36 Misc 3d 590 (Sup.Ct. Nassau Co. 2012)(DeStefano, J.) (allowing defendant to Lie (make two contradictory affidavits "would gravely prejudice New York’s rules-based court system)

But many Attorneys are aware that this alleged "system" and its "rules" is/are suspended when the party benefiting from deviation from the "rules" is the judge-favored party (such as when the judge-favored party is a member of the same Democrat Machine that puts Judges into office, and/or when the case threatens the operation of the Democrat Machine). E.g., "Extremely-troubling-allegations-of-lying-by-judges-in-NY.pdf" http://www.orlytaitzesq.com/wp-content/uploads/2014/04/Extremely-troubling-allegations-of-lying-by-judges-in-NY.pdf

Posted by: Mark R. Ferran | Oct 9, 2014 8:53:33 PM

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