Version 1.0
Edited by Build Freedom staff
(Applicable To The U.S.A.; Adaptable For Some Other Countries)
[with acknowledgments and credit to Allen Mathews and Rich Forest of Common Law Education Application and Research, for doing the legal research]
Published by Build Freedom
Common Law Copyright, 1995 Build Freedom Holdings, All Rights Reserved
[Editor's comments: In general, you are best off keeping your property private, by minimizing the amount of your property bureaucrats know about and therefore might be tempted to seize to fatten their coffers with ill-gotten gains. Minimizing the amount of information about your property that falls into the hands of bureaucrats is one excellent way to do this. Of course, any such actions should be done lawfully. See other materials from Build Freedom for various ideas on how to do this. For example, consider our Pure Trust Package (eleven reports for $49), Beat-the-IRS Package (8 reports for $49, most particularly Report TL16G - "The Reliance Defense Method" - which may be individually purchased for $15 - covers many of the "good-faith state-of-mind" issues important for lawful privacy protection). For offshore/international approaches to property protection & privacy, try our Report TL22 - "The Scope Report" for $2.
Disclaimer
This manual is intended purely as a communication of information in accordance with the
right of free speech. It does not constitute either general or specific legal advice.
Anyone seeking legal advice should consult a competent professional. Neither the author,
editor or publisher guarantee that using this information will result in success or
protect the reader from harm. The reader must accept that risk, and thoroughly study the
law before using any of this material. Readers must take full responsibility for the
consequences of any actions taken based on the contents of this manual. For most
readers, you may well be best off reading this as a sort of "adventure novel."
You can learn of some of the actual documents and procedures being used by many
freedom fighters. If you were to actually use these documents and procedures you would
probably be at substantial risk to change your life in very major ways, some of which may
be very unpleasant. The use of some of the procedures described in this manual is
EXTREMELY high-profile. For most readers, it may be advisable to use some of the
"lower-profile" applications of Freedom Technology. Generally, we think that
rather than fight existing systems it's much more productive, useful, and exciting to
create alternative new systems.
This disclaimer is especially important, because this is a relatively new strategy, and has not yet been subjected to a Supreme Court challenge. Until that takes place, the soundness of this strategy cannot be fully known. The strategy is still evolving, and new information is being discovered daily. If you use this strategy, who knows? Your name may be on a famous Supreme Court case! Whether that prospect thrills you or disturbs you depends upon your outlook.
These procedures should be treated with respect. We, at Build Freedom, do not advocate the use of these procedures against all government officials, nor to any official in particular. We honor the fact that there are many virtuous people in government offices, who are truly striving to harm no one and to benefit as many people in society as possible. The procedures described in this manual are not directed towards these harmless officials.
Scope and Purpose of Manual
This manual is an introduction and primer to the asset forfeiture procedures. It does not
pretend to be the final word on the subject. The authors and editors have synthesized
material from several sources. We have organized it into a form that should be
comprehensible to the average reader.
After reading this manual, you will know the fundamental principles of this strategy. This understanding, plus the group listings in the Appendix, will allow you to do further research on your own.
Some Notes on the Sample Briefs and Diskette
"Asset Forfeiture II: Ammunition" of this contains sample legal briefs, based
upon actual examples used by others. (These briefs are also available on diskette, which
you may order separately. The briefs on the diskette are in ASCII TXT format. This is a
"lowest common denominator" format, which practically all commercially-available
word processing packages can read or convert.)
You will have to reformat these briefs using your word processing software, and you MUST adapt them to your situation, and to the requirements of your state or locality. These are not and (in the nature of things) cannot be "fill-in-the-blank" forms.
Asset Forfeiture Strategy - Background
Faced with corrupt lawyers and judges, no litigant can expect to win in court by simply
playing defense. To beat them, you must be able to scare them. You must be able to make
them respect you, and that means you must be able to take the offense - attack them
personally.
Unfortunately, judges, lawyers, and other government officials enjoy various levels of personal immunity provided by both law and "professional courtesy." How do you sue a lawyer for malpractice? You hire another lawyer - if you can find one who'll take the case. How do you sue an IRS agent for violating your Constitutional rights? Only with great difficulty. How you sue a judge for railroading you in court? You don't.
As a practical matter, private citizens can't sue the President of the United States, a Governor, judge, or even an IRS agent for failing to obey or enforce the laws. If we try to sue in court to compel our government officials to obey the law and perform their lawful duties, the judges routinely ignore our petitions and laugh us out of court.
Because legal and de facto immunities shield government personnel from being sued for committing crimes against the People, the public is legally disarmed, unable to aggressively sue the government or its agents and compel them to obey the Law. As a result, the public's legal posture is fundamentally defensive: we try to duck, dodge, and hide in legal loopholes to defend ourselves against the government and the courts. We try to escape, evade, and avoid, but we seldom counterattack against our antagonists, largely because we think there are no lawful weapons to do so. However, it appears that a powerful offensive legal weapon may now have been discovered, tested, and proven for common Citizens - these asset forfeiture procedures. We don't try to sue a government official for failing to perform his lawful duties. Instead, we simply file a lien that encumbers the official's personal property and credit rating like a ton of bricks until he voluntarily satisfies our demand to perform his lawful duty, and we, in turn, voluntarily agree to excise the lien.
Know your common law rights and prevent your property from being unlawfully and unconstitutionally seized by state and federal government agencies without a trial by jury. Procedures and forms are provided to prosecute government criminals and to protect your Constitutional rights, along with relevant Supreme Court cases. Available expert assistance listed.
The Right Way L.A.W.
Before utilizing any of the procedures suggested in this manual, we strongly suggest that
you join an organization called "The Right Way ... L.A.W." They are experts on
legal and court procedures, as well as liens in general. They also have great expertise
regarding Title 42 (civil rights violation suits). For more details see Build Freedom Report
#LAW01 - The Right Way ... L.A.W.
The legal research for this manual was done by Allen Mathews and Rich Forest from Common Law Education Application and Research, c/o 211 S. State College #130, Anaheim, Calif. 92806. You can reach them at (714) 774-3655. The best time to call is after 8 p.m. They are available to provide expert assistance, should you want to apply the procedures suggested in this manual.
DISCLAIMER:
THIS MANUAL DOES NOT CONSTITUTE LEGAL ADVICE. IT IS COMMUNICATION IN ACCORDANCE WITH THE
RIGHT TO FREE SPEECH. ANYONE SEEKING LEGAL ADVICE SHOULD CONSULT A COMPETENT PROFESSIONAL.
SOME OF THE INFORMATION INCLUDED IN THIS MANUAL DEPICTS ACTUAL SITUATIONS AND ACTIONS PEOPLE HAVE TAKEN TO PROTECT THEIR COMMON LAW RIGHTS INVOLVING UNLAWFUL PROPERTY SEIZURES.
RICO: Threat or Weapon
RICO has become a threat to some groups and a weapon to others. The Racketeer Influenced
and Corrupt Organizations Act (RICO), passed by Congress in 1970, which was meant to bring
big-time, profit motivated crime organizations to their knees, has taken yet another
twist. In January, 1994, the Supreme Court widened the scope of RICO by ruling that
federal racketeering laws can apply when the motivation is social or political and not
just economic. In other words, RICO has now become a threat for those who engage in the
national tradition of social or political protest. That decision becomes spine-chilling to
those of us who value our freedom of speech and right to association.
RICO: WHAT ARE YOU DOING?
Is it true that government agencies in every state are profiteering at the expense of
innocent third parties by taking advantage of the federal R.I.C.O. laws? RICO is the
acronym for the Racketeer Influenced and Corrupt Organizations Act, a federal law passed
by Congress in 1970, and is commonly used to describe the legal process by which
government agencies take personal property away from individuals. And what can be taken
and who are the individuals?
RICO was initially proposed to target organized crime and the responsible individuals such as drug kingpins. The main purpose was to destroy the economic base necessary for the continuation of illegal enterprises and to attack the economic incentive to engage in organized criminal activity. In other words, RICO is reported as the legislative "highway" by which law enforcement officials travel to confiscate the operating capital or "front money" and seize all the assets that either aided in the furtherance of alleged crime and/or were obtained from the proceeds of the illegal acts. The inventory of what is seized or brought to forfeiture can include cash, cars, homes, businesses and even personal items such as wardrobe and photographs. In theory, this concept could feasibly eliminate the local dope dealer by seizing the Cadillac seen cruising the neighborhoods, strip him of his gold chains, take away his "party money" and put him out of business. Under these circumstances, the objective would be to seize all assets and personal property that could be even remotely connected with any part at all, in the act of carrying out the crime. But is RICO the "legal highway" or just plain "highway robbery"? Let's examine the record.
RICO appears to be a great success. The profits law enforcement agencies have acquired through the RICO laws are astronomical. Let's understand what is being called profits and from whom these agencies are profiteering.
Because the laws are so broad and vague, they rarely include or even target major criminals as originally intended. Instead they seem to encourage the filing of marginal cases, particularly those with potential for large cash seizures. With minimum controls over the process of asset seizure and property forfeiture, it is possible for law enforcement agencies to realize the financial benefits based on the value of the suspect's assets and property before an investment is ever warranted, let alone charges filed. The value of the seizure can be predetermined and provides an economic incentive for agency abuse, such as police putting money in their coffers instead of crooks in jail. "If you talk to law enforcement people on an informal basis ... they are more interested in money than they are in getting drugs off the street," was a quote from a special reprint that ran as a "public service" in the Mesa Tribune newspaper concerning an analysis of virtually every RICO case filed in Arizona, by nine local agencies from January, 1990 to November, 1993. The nine local agencies included the Arizona Attorney General's Office, the D.P.S. (Department of Public Safety), the Maricopa County Attorney's Office, and the police departments from the cities of Chandler, Gilbert, Mesa, Phoenix, Scottsdale, and Tempe. These were the reported findings:
So what happens if your assets are seized in a RICO case? Because RICO actions are civil and not criminal, you are guilty until proven innocent. To get your property back, you will quickly learn you must prove your innocence with a much higher standard of proof than the prosecution had to prove to make the seizure. The prosecutor only has to show probable cause to believe "it" (meaning your cash, car, home, etc.) was involved in a crime. Probable cause could be as simple as allegations made by a paid informant and your "word" against theirs has no relevance. To get your property back, you must prove with a "preponderance of evidence" that your assets and property are innocent of any part in the crime. Today it is possible for a paid informant to call anonymously and report that illegal activity was done on your property or that you gave a ride to a possible or potential criminal and probable cause is established. Could just about anyone be categorized as a possible or potential criminal?
So how do you prove you are an innocent bystander and that you did not knowingly participate, with any act or omission, in the alleged crime? Or what is the burden of proof required to vindicate your seized assets or forfeited property allegedly gained as the result of the illegal act or in furtherance of that act? The law establishes a four-part test for showing "innocent" ownership. These are the four components that must be met in order for your property to be returned to you:
It is reported that property owners can request a hearing within fifteen (15) days of a seizure providing they have paid a nonrefundable deposit of not less than ten (10) percent of the total net value seized. At that hearing, the prosecution has the burden of proof to show they had probable cause to take the property. As we have previously mentioned, that can be easily manipulated. If by fluke, the prosecution cannot meet the burden of proof, the property is returned, but the forfeiture case can proceed.
With seemingly unlimited RICO powers, police and law enforcement agencies are put in position to easily fall prey to the tremendous profits that can be obtained at the expense of innocent third parties. So an otherwise honest and moral cop is coerced into compromising situations. They may have to look the other way for job security. Current laws require that agencies only need to list the amount of money they received when they sell a property, not the full value. They can keep cars, boats and whatever else for their own use indefinitely without even reporting them. Reports have been stated of police seizing personal wardrobes and sentimental items such as photographs or items of no apparent value to anyone else. What could be the possible purpose of seizing someone's eyeglasses? Could it just be more evidence of the law enforcement "bully" tactics that are running rampant in America today?
It is obvious that the RICO laws are not operating as it was originally intended by Congress and literally every citizen is at risk. If you or your belongings are at the wrong place at the wrong time, well that's just the way the RICO ball bounces!
HOW BUREAUCRATS PRESUME YOU'RE "GUILTY"
This article appeared in a box on the FRONT PAGE of The Pittsburgh Press, Sunday, August 11, 1991:
"PRESUMED GUILTY
The Law's Victims in the War on Drugs
It's a strange twist of justice in the land of freedom. A law designed to give cops the
right to confiscate and keep the luxurious possessions of major drug dealers mostly
ensnares the modest homes, cars and cash of ordinary, law-abiding people. They step off a
plane or answer their front door and suddenly lose everything they've worked for. They are
not arrested or tried for any crime. But there is punishment, and it's severe.
This six-day series chronicles a frightening turn in the war on drugs. Ten months of research across the country reveals that seizure and forfeiture, the legal weapons meant to eradicate the enemy, have done enormous collateral damage to the innocent. The reporters reviewed 25,000 seizures made by the Drug Enforcement Administration. They interviewed 1,600 prosecutors, defense lawyers, cops, federal agents, and victims. They examined court documents from 510 cases. What they found defines a new standard of justice in America: "You are presumed guilty."
The main article appeared next to the above, also on the front page, and later pages.
"Government Seizures Victimize Innocent
By Andrew Schneider and Mary Pat Flaherty
Part One: The Overview
February 27, 1991. Willie Jones, a second-generation nursery man in his family's Nashville business, bundles up money from last year's profits and heads off to buy flowers and shrubs in Houston. He makes this trip twice a year using cash, which the small growers prefer.
But this time, as he waits at the American Airlines gate in Nashville Metro Airport, he's flanked by two police officers who escort him into a small office, search him and seize the $9,600 he's carrying. A ticket agent had alerted the officers that a large black man had paid for his ticket in bills, unusual these days. Because of the cash, and the fact that he fit a "profile" of what drug dealers supposedly look like, they believed he was buying or selling drugs. He's free to go, he's told. But they keep his money - his livelihood - and give him a receipt in its place.
No evidence of wrongdoing was ever produced. No charges were ever filed. As far as anyone knows, Willie Jones neither uses drugs, nor buys or sells them. He is a gardening contractor who bought an airplane ticket. Who lost his hard-earned money to the cops. And can't get it back.
That same day, an ocean away in Hawaii, federal drug agents arrive at the Maui home of retirees Joseph and Frances Lopes and claim it for the U.S. government. For 49 years, Lopes worked on a sugar plantation, living in its camp housing before buying a modest home for himself, his wife, and their adult, mentally disturbed son, Thomas.
For a while, Thomas grew marijuana in the back yard - and threatened to kill himself every time his parents tried to cut it down. In 1987, the police caught Thomas, then 28. He pleaded guilty, got probation for his first offense and was ordered to see a psychologist once a week. He has, and never again has grown dope or been arrested. The family thought this episode was behind them. But earlier this year, a detective scouring old arrest records for forfeiture opportunities realized the Lopes house could be taken away because they had admitted they knew about the marijuana. The police department stands to make a bundle. If the house is sold, the police get the proceeds.
Jones and the Lopes family are among the thousands of Americans each year victimized by the federal seizure law - a law meant to curb drugs by causing financial hardship to dealers. A 10-month study by The Pittsburgh Press shows the law has run amok. In their zeal to curb drugs and sometimes fill their coffers with the proceeds of what they take, local cops, federal agents and the courts have curbed innocent Americans' civil rights. From Maine to Hawaii, people who are never charged with a crime had cars, boats, money and homes taken away. In fact, 80 percent of the people who lost property to the federal government were never charged. And most of the seized items weren't the luxurious playthings of drug barons, but modest homes and simple cars and hard-earned savings of ordinary people.
But those goods generated $2 billion for the police departments that took them. The owners' only crimes in many of these cases: They "looked" like drug dealers. They were black, Hispanic or flashily dressed. Others, like the Lopeses, have been connected to a crime by circumstances beyond their control. Says Eric Sterling, who helped write the law a decade ago as a lawyer on a congressional committee: "The innocent-until-proven-guilty principle has been overturned."
The Law: Guilt Doesn't Matter.
Rooted in English common law, forfeiture has surfaced just twice in the United States
since colonial times. In 1862, Congress permitted the president to seize estates of
Confederate soldiers. Then, in 1970, it resurrected forfeiture for the civil war on drugs
with the passage of racketeering laws that targeted the assets of criminals.
In 1984, however, the nature of the law was radically changed to allow government to take possession without first charging - let alone convicting - the owner. That was done in an effort to make it easier to strike at the heart of the major drug dealers. Cops knew that drug dealers consider prison time an inevitable cost of doing business. It rarely deters them. Profits and playthings, though, are their passions. Losing them hurts. And there was a bonus in the law. The proceeds would flow back to law enforcement to finance more investigations. It was to be the ultimate poetic justice, with criminals financing their own undoing.
But eliminating the necessity of charging or proving a crime has moved most of the action to civil court, where the government accuses the item - not the owner - of being tainted by a crime. This oddity has court dockets looking like purchase orders: United States of America vs. 9.6 acres of land and lake; U.S. vs. 667 bottles of wine. But it's more than just a labeling change. Because money and property are at stake instead of life and liberty, the constitutional safeguards in criminal proceedings do not apply. The result is that "jury trials can be refused; illegal searches condoned; rules of evidence ignored," says Louisville, Ky. defense lawyer Donald Heavrin. The "frenzied quest for cash," he says, is "destroying the judicial system."
Every crime package passed since 1984 has expanded the uses of forfeiture, and now there are more than 100 statutes in place at the state and federal level. Not just for drug cases anymore, forfeiture covers the likes of money laundering, fraud, gambling, importing tainted meats and carrying intoxicants onto Indian land.
The White House, Justice Department and Drug Enforcement Administration say they've made the most of the expanded law in getting the big-time criminals, and they boast of seizing mansions, planes and millions in cash. But the Pittsburgh Press in just 10 months was able to document 510 current cases that involved innocent people - or those possessing a very small amount of drugs - who lost their possessions. And DEA's own database contradicts the official line. It showed that big-ticket items - valued at more than $50,000 - were only 17 percent of the total 25,297 items seized by DEA during the 18 months that ended last December.
"If you want to use that 'war on drugs' analogy, the forfeiture is like giving the troops permission to loot," says Thomas Lorenzi, president-elect of the Louisiana Association of Criminal Defense Lawyers. The near-obsession with forfeiture continues without any proof that it curbs drug crime - its original target. "The reality is, it's very difficult to tell what the impact of drug seizure is," says Stanley Morris, deputy director of the federal drug czar's office.
Police Forces Keep the Take
The "loot" that's coming back to police forces all over the nation has redefined
law-enforcement success. It now has a dollar sign in front of it.
For nearly eighteen months, undercover Arizona State Troopers worked as drug couriers driving nearly 13 tons of marijuana from the Mexican border to stash houses around Tucson. They hoped to catch the Mexican suppliers and distributors on the American side before the dope got on the streets. But they overestimated their ability to control the distribution. Almost every ounce was sold the minute they dropped it at the houses. Even though the troopers were responsible for tons of drugs getting loose in Tucson, the man who supervised the setup still believes it was worthwhile. It was "a success from a cost-benefit standpoint," says former assistant attorney-general John Davis. His reasoning: It netted 20 arrests and at least $3 million for the state forfeiture fund.
"That kind of thinking is what frightens me," says Steve Sherick, a Tucson attorney. "The government's thirst for dollars is overcoming any long-range view of what it is supposed to be doing, which is fighting crime." George Terwilliger III, associate deputy attorney general in charge of the U.S. Justice Department's program emphasizes that forfeiture does fight crime, and "we're not at all apologetic about the fact that we do benefit (financially) from it." In fact, Terwilliger wrote about how the forfeiture program financially benefits police departments in the "1991 Police Buyer's Guide" of Police Chief Magazine.
Between 1986 and 1990, the U.S. Justice Department generated $1.5 billion from forfeiture and estimates that it will take in $500 million this year, five times the amount it collected in 1986. District attorney's offices throughout Pennsylvania handled $4.5 million in forfeitures last year; Allegheny County (ED: Pittsburgh is in Allegheny County) $218,000, and the city of Pittsburgh, $191,000 - up from $9,000 four years ago. Forfeiture pads the smallest towns' coffers. In Lexana, Kan, a Kansas City suburb of 29,000, "we've got about $250,000 moving in court right now," says narcotic detective Don Crohn. Despite the huge amounts flowing to police departments, there are few public accounting procedures. Police who get a cut of the federal forfeiture funds must sign a form saying merely they will use it for "law enforcement purposes."
To Philadelphia police that meant new air conditioning. In Warren County, N.J., it meant use of a forfeited yellow Corvette for the chief assistant prosecutor.
[At this point in the article there is a picture of three people in an empty apartment, with the following caption: "Judy Mulford, 31, and her 13-year old twins, Chris, left, and Jason, are down to essentials in their Lake Park, Fla., home, which the government took in 1989 after claiming her husband, Joseph, stored cocaine there. Neither parent has been criminally charged, but in April a forfeiture jury said Mrs. Mulford must forfeit the house she bought herself with an insurance settlement. The Mulfords have divorced, and she has sold most of her belongings to cover legal bills. She's asked for a new trial and lives in the near-empty house pending a decision.]
'Looking' Like a Criminal
Ethel Hylton of New York City has yet to regain her financial independence after losing
$39,110 in a search nearly three years ago in Hobby Airport in Houston. Shortly after she
arrived from New York, a Houston officer and Drug Enforcement Administration agent stopped
the 46-year-old woman in the baggage area and told her she was under arrest because a drug
dog had scratched at her luggage. The dog wasn't with them, and when Miss Hylton asked to
see it, the officers refused to bring it out. The agents searched her bags, and ordered a
strip search of Miss Hylton, but found no contraband. In her purse they found the cash
Miss Hylton carried because she planned to buy a house to escape the New York winters
which exasperated her diabetes. It was the settlement from an insurance claim, and her
life's savings, gathered through more than 20 years of work as a hotel housekeeper and
hospital night janitor.
The police seized all but $10 of the cash and sent Miss Hylton on her way, keeping the money because of its alleged drug connection. But they never charged her with a crime. The Pittsburgh Press verified her jobs, reviewed her bank statements and substantiated her claim she had $18,000 from an insurance settlement. It also found no criminal record for her in New York City. With the mix of outrage and resignation voiced by other victims of searches, she says: "The money they took was mine. I'm allowed to have it. I earned it."
Miss Hylton became a U.S. citizen six years ago. She asks, "Why did they stop me? Is it because I'm black or because I'm Jamaican?" Probably, both - although Houston police haven't said.
Drug teams interviewed in dozens of airports, train stations and bus terminals and along other major highways repeatedly said they didn't stop travellers based on race. But a Pittsburgh Press examination of 121 travellers' cases in which police found no dope, made no arrest, but seized money anyway showed that 77 percent of the people stopped were black, Hispanic, or Asian.
In April, 1989, deputies from Jefferson Davis Parish, Louisiana, seized $23,000 from Johnny Sotello, a Mexican-American whose truck overheated on a highway. They offered help, he accepted. They asked to search his truck. He agreed. They asked if he was carrying cash. He said he was carrying it because he was scouting heavy equipment auctions.
They then pulled a door panel from the truck, said the space behind it could have hidden drugs, and seized the money and the truck, court records show. Police did not arrest Sotello but told him he would have to go to court to recover his property. Sotello sent auctioneer's receipts to police which showed he was a licensed buyer. The sheriff offered to settle the case, and with his legal bills mounting after two years, Sotello accepted. In a deal cut last March, he got his truck, but only half his money. The cops kept $11,500. "I was more afraid of the banks than anything - that's one reason I carry cash," says Sotello. "But a lot of places won't take checks, only cash, or cashier's checks for the exact amount. I never heard of anybody saying you couldn't carry cash."
Affidavits show the same deputy who stopped Sotello routinely stopped the cars or black and Hispanic drivers, exacting "donations" from some. After another of the deputy's stops, two black men from Atlanta handed over $1,000 for a "drug fund" after being detained for hours, according to a handwritten receipt reviewed by the Pittsburgh Press. The driver got a ticket for "following to (sic) close." Back home, they got a lawyer. Their attorney, in a letter to the Sheriff's department, said deputies had made the men "fear for their safety, and in direct exploitation of that fear a purported donation of $1000 was extracted ... " If they "were kind enough to give the money to the sheriff's office," the letter said, "then you can be kind enough to give it back." If they gave the money "under other circumstances, then give the money back so we can avoid litigation." Six days later, the sheriff's department mailed the men a $1,000 check.
Last year, the 72 deputies of Jefferson Davis Parish led the state in forfeitures, gathering $1 million - more than their colleagues in New Orleans, a city 17 times larger than the parish. Like most states, Louisiana returns the money to law enforcement agencies, but it has one of the more unusual distributions: 60 percent goes to the police bringing a case, 20 percent to the district attorney's office prosecuting it and 20 percent to the court fund of the judge signing the forfeiture order. "The highway stops aren't much different from a smash-and-grab ring," says Lorenzi, of the Louisiana Defense Lawyers association.
Paying For Your Innocence
The Justice Department's Terwilliger says that in some cases "dumb judgement"
may occasionally cause problems, but he believes there is an adequate solution.
"That's why we have courts." But the notion that courts are a safeguard for
citizens wrongly accused "is way off," says Thomas Kerner, a forfeiture lawyer
in Boston. "Compared to forfeiture, David and Goliath was a fair fight."
Starting from the moment that the government serves notice that it intends to take an
item, until any court challenge is completed, "the government gets all the
breaks," says Kerner. The government need only show probable cause for a seizure, a
standard no greater than what is needed to get a search warrant. The lower standard means
the government can take a home without any more evidence than it normally needs to take a
look inside. Clients who challenge the government, says attorney Edward Hinson of
Charlotte, N.C., "have the choice of fighting the full resources of the U.S. Treasury
or caving in."
Barry Kolin caved in. Kolin watched Portland, Ore., police padlock the doors of Harvey's, his bar and restaurant for bookmaking on March 2. Earlier that day, eight police officers and Amy Holmes Hehn, the Multnomah County deputy district attorney, had swept into the bar, shooed out waitresses and customers and arrested Mike Kolin, Barry's brother and bartender, on suspicion of bookmaking. Nothing in the police documents mentioned Barry Kolin, and so the 40-year-old was stunned when authorities took his business, saying they believe he knew about the betting. He denied it.
Hehn concedes she did not have the evidence to press a criminal case against Barry Kolin, "so we seized the business civilly." During a recess in a hearing on the seizures weeks later, "the deputy DA says if I paid them $30,000 I could open up again," Kolin recalls. When the deal dropped to $10,000, Kolin took it. Kolin's lawyer, Jenny Cooke, calls the seizure "extortion." She says: "There is no difference between what the police did to Barry Kolin or what Al Capone did in Chicago when he walked in and said, 'This is a nice little bar and it's mine.' The only difference is today they call this civil forfeiture."
Minor Crimes, Major Penalties
Forfeiture's tremendous clout helps make it "one of the most effective tools that we
have," says Terwilliger. The clout, though, puts property owners at risk of losing
more under forfeiture than they would in a criminal case under the same circumstances.
Criminal charges in federal and many state courts carry maximum sentences. But there's no
dollar cap on forfeiture, leaving citizens open to punishment that far exceeds the crime.
Robert Brewer of Irwin, Idaho, is dying of prostate cancer, and uses marijuana to ease the pain and nausea that comes with radiation treatments. Last Oct. 10, a dozen deputies and Idaho tax agents walked into the Brewer's living room with guns drawn and said they had a warrant to search. The Brewers, Robert, 61, and Bonita, 44, both retired form the postal service, moved from Kansas City, Mo., to the tranquil, wooded valley of Irwin in 1989. Six months later, he was diagnosed. According to police reports, an informant told authorities Brewer ran a major marijuana operation. The drug SWAT team found eight plants in the basement under a grow light and a half-pound of marijuana. The Brewers were charged with two felony narcotics counts and two charges for failing to buy state tax stamps for the dope. "I didn't like the idea of the marijuana, but it was the only thing that controlled his pain," Mrs. Brewer says. The government seized the couple's five-year-old Ford van that allowed him to lie down during his twice-a-month trips for cancer treatment at a Salt Lake City hospital, 270 miles away. Now they must go by car.
"That's a long painful ride for him. ... He needed that van, and the government took it," Mrs. Brewer says. "It looks like they can punish people any way they see fit."
The Brewers know nothing about the informant who turned them in, but informants play a big role in forfeiture. Many of them are paid, targeting property in return for a cut of anything that is taken. The Justice Department's asset forfeiture fund paid $24 mil. to informants in 1990 and has $22 million allocated this year. Private citizens who snitch for a fee are everywhere. Some airline counter clerks receive cash awards for alerting drug agents to "suspicious" travellers. The practice netted Melissa Furtner, a Continental Airlines clerk in Denver, at least $5,800 between 1989 and 1990, photocopies of checks show.
Increased surveillance, recruitment of citizen-cops, and expansion of forfeiture sweeps are all part of a take-now, litigate-later syndrome that builds prosecutors careers, says a former federal prosecutor. "Federal law enforcement people are the most ambitious I've ever met, and to get ahead they need visible results. Visible results are convictions, and, now, forfeitures," says Don Lewis of Meadville, Crawford County. (ED: a Pennsylvania county north of Pittsburgh by two counties.)
Lewis spent 17 years as a prosecutor, serving as an assistant U.S. Attorney in Tampa as recently as 1988. He left the Tampa Job - and became a defense lawyer - when "I found myself tempted to do things I wouldn't have thought about doing years ago." Terwilliger insists U.S. Attorneys would never be evaluated on "something as unprofessional as dollars." Which is not to say Justice doesn't watch the bottom line. Cary Copeland, director of the department's Executive Office for Asset Forfeiture, says they tried to "squeeze the pipeline" in 1990 when the amount forfeited lagged behind Justice's budget projections. He said this was done by speeding up the process, not by doing "whole lot of seizures."
Ending the Abuse
While defense lawyers talk of reforming the law, agencies that initiate forfeiture
scarcely talk at all. DEA headquarters makes a spectacle of busts like the seizure of
fraternity houses at the University of Virginia in March. But it refuses to supply
detailed information on the small cases that account for most of its activity. Local
prosecutors are just as tight-lipped. Thomas Corbett, U.S. Attorney for Western
Pennsylvania, seals court documents on forfeitures because "there are just some
things I don't want to publicize. The person whose assets we seize will eventually know,
and who else has to?"
Although some investigations need to be protected, there is an "inappropriate secrecy" spreading throughout the country, says Jeffrey Weiner, president-elect of the 25,000 member National Association of Criminal Defense Lawyers. "The Justice Department boasts of the few big fish they catch. But they throw a cloak of secrecy over the information on how many innocent people are getting swept up in the same seizure net, so no one can see the enormity of the atrocity." Terwilliger says the net catches the right people: "bad guys" as he calls them. But a 1990 Justice report on drug task forces in 15 states found they stayed away from the in-depth financial investigations needed to cripple major traffickers. Instead, "they're going for the easy stuff," says James "Chip" Coldren, Jr., executive director of the Bureau of Justice Assistance, a research arm of the federal Justice Department.
Lawyers who say the law needs to be changed start with the basics: The government shouldn't be allowed to take property until after it proves the owner guilty of a crime. But they go on to list other improvements, including having police abide by their state laws, which often don't give police as much latitude as the federal law. Now they can use federal courts to circumvent the state.
Mr. Tracy Thomas is caught in that very bind. A jurisprudence version of the shell game hides roughly $13,000 taken from Thomas, a resident of Chester, near Philadelphia. Thomas was visiting in his godson's home on Memorial Day, 1990, when local police entered looking for drugs allegedly sold by the godson. They found none and didn't file a criminal charge in the incident. But they seized $13,000 from Thomas, who works as a $70,000-a-year engineer, says his attorney, Clinton Johnson. The cash was left over from a Sheriff's sale he'd attended a few days before, court records show. The sale required cash - much like the government's own auctions.
During a hearing over the seized money, Thomas presented a withdrawal slip showing he'd removed money from his credit union shortly before the trip and a receipt showing how much he had paid for the property he'd bought at the sale. The balance was $13,000. On June 22, 1990, a state judge ordered Chester police to return Thomas' cash. They haven't. Just before the court order was issued, the police turned over the cash to the DEA for processing as a federal case, forcing Thomas to fight another level of government. Thomas is now suing the Chester police, the arresting officer, and the DEA. "When DEA took over that money, what they in effect told a local police department is that it's OK to break the law," says Clinton Johnson, attorney for Thomas.
Police manipulate the courts not only to make it harder on owners to recover property, but to make it easier for police to get a hefty share of any forfeited goods. In federal court, local police are guaranteed up to 80 percent of the take - a percentage that may be more than they'd receive under state law. Pennsylvania's leading police agency - the state police - and the state's lead prosecutor - the Attorney General - bickered for two years over state police taking cases to federal court, an arrangement that cut the Attorney General out of the sharing. The two state agencies now have a written agreement on how to divvy the take. The same debate is heard around the nation. The hallways outside Cleveland courtrooms ring with arguments over who will get what, says Jay Milano, a Cleveland criminal defense attorney.
THE BUREAUCRATS' FEEDING FRENZY
The Asset Forfeiture Manual is a part of the solution to the problems that Jarret
Wollstein so grimly points out in the following two articles. The need for this area of
research to continue is highly documented by the public record. The reports are in:
Americans need protection from the law enforcement agencies.
RED ALERT:
The Rising American Police State
By Jarret Wollstein
[Reprinted from I.S.I.L. Bulletin, International Society for Individual Liberty, 1800 Market Street, San Francisco, CA 94102. (415) 864-0952. $20 per year. Jarret Wollstein is a Director of ISIL and the author of 300 published articles.]
During the last few decades, a tidal wave of authoritarian legislation has been battering America. Little by little, our freedom and our economic security are being destroyed. Here are just a few examples:
Another particularly disturbing trend is the rapid expansion of local, state and federal civil asset forfeiture laws. In complete defiance of the Bill of Rights, these laws enable government agencies to confiscate cash, cars, homes and businesses without indictment, trial or conviction. Totally innocent people and others accused of minor offenses, are losing everything they own. In the last three years, police in Volusia County, Florida (near Disney World) have seized over $8 million in cash and property from motorists stopped for minor traffic violations (Orlando Sentinel, 8/12/92). In New York City alone, 10,000 cars a year are seized and sold by the city, which keeps the revenue. Nationwide, government seizures are now doubling every year. Over $644 million in property was seized in 1991, and over $1.2 billion will be seized this year. Once property is seized by the government, it is virtually impossible to get it back.
Every Constitutional defense against asset forfeiture is being abolished. Recently the "Justice" Department has taken the position that once an illegal act occurs on some property (for example, if someone sells drugs in an apartment building, hotel or restaurant), that property belongs to the government from the moment of the illegal act, even if the owners knew nothing about it and had no involvement with the "crime" (U.S. v. 92 Buena Vista Avenue, Rumson, NJ. No. 91-781).
The rate at which totalitarian legislation is being introduced and passed is truly mind-boggling. Pending federal laws include:
Laws now being passed in the U.S. closely parallel those enacted by Adolph Hitler during the early years of his rule: Banning of firearms, confiscation of property without due process, and the establishment of "shock incarceration centers." With millions of laws now on the books, there is not a single person in America who hasn't broken some of them. In 1991 alone, the Federal Register published 67,715 pages of new federal laws and regulations each of us is required to obey. This is in addition to over one million pages of laws and regulations already enacted. (Remember, ignorance of the law is no excuse!) Anyone in the U.S. can now be legally accused of a crime, "detained" in jail for months or years without trial, and have all of their property summarily confiscated by the government based upon mere accusation.
While politicians argue about details, the great majority of our political "leaders" support the substance of these authoritarian laws - including George Bush, Bill Clinton, Ross Perot, and most members of Congress and state legislatures. Totalitarian legislation is also supported by most federal judges, 80% of whom were appointed by Reagan or Bush. So regardless of who wins in November, we can expect legislatures to pass and courts to uphold more and more authoritarian laws.
Incredibly most Americans remain totally unaware of how government has destroyed their economic security, and how few rights they have left. (The establishment media and government schools certainly don't tell them!) And when most Americans become aware, they feel too isolated, weak, or afraid even to protest, much less to effectively fight back.
If the modern libertarian movement is to serve any serious purpose in this century, we have to get very busy and very serious right now about stopping the emerging American police state. So long as you live in the U.S. you really only have three options: You can join the oppressors or try to become one of their buddies. You can meekly submit and hope you don't get unlucky or offend anyone in power. Or you can fight back. [Editor: In Build Freedom, we emphasize a vibrant option different from any of these: create your own new alternatives and systems. Generally, you'll find this approach to be superior to the other three just mentioned.]
I have these suggestions for everyone who wants to fight for freedom:
FIRST: Educate yourself about new and pending laws. Even I found it hard to believe
how vicious and totalitarian some of the new laws are. Newsletters published by the ACLU,
People for the American Way, the Criminal Justice Policy Foundation, FEAR (Forfeiture
Endangers American Rights), Families Against Mandatory Minimums, The Drug Policy
Foundation, and other groups clearly report new and pending laws. (The addresses for some
of these groups are listed in the Appendix).
SECOND: Inform others. Start with issues on which you will get substantial public support. The vast majority of Americans don't endorse confiscation of the assets of innocent people, banning independently manufactured auto replacement parts, and prohibiting doctors from performing tests in their offices. Each of us can make a tremendous difference by talking to our friends, writing and faxing legislators (state legislators in particular usually cet very little mail), getting on local talk shows, starting letter-writing clubs, and so forth.
Finally, provide all the support you can for groups like the Libertarian Party, ISIL (International Society for Individual Liberty), and FEAR (Forfeiture Endangers American Rights). These groups are doing vitally important work and are worthy of your support.
Americans today are very upset about rising crime and our failing economy. They are disgusted by politics as usual and are searching for answers to our social problems - but they don't know which way to turn. This creates a tremendous opportunity for libertarians. Libertarians have the answers, but lamentably we frequently offend rather than persuade. To create a popular movement for liberty, we must quickly learn how to communicate with and befriend our neighbors. The very survival of this country and our liberty depend upon our becoming effective salesmen for liberty very quickly.
Consider this article your Red Alert, a call to arms for patriots of the new American freedom movement. We must stop the emerging American police state NOW, before it is too late.
THE LOOTING OF AMERICA:
Civil Asset Forfeiture
By Jarret Wollstein
[Reprinted from I.S.I.L. Educational Pamphlet Series, International Society for Individual Liberty, 1800 Market Street, San Francisco, CA 94102. (415) 864-0952. Jarret Wollstein is a Director of ISIL and the author of 300 published articles.]
"A police dog scratched at your luggage, so we're confiscating your life savings and you'll never get it back." In 1989, police stopped 49-year-old Ethel Hylton at Houston's Hobby Airport and told her she was under arrest because a drug dog had scratched at her luggage. Agents searched her bags and strip-searched her, but they found no drugs. They did find $39,110 in cash, money she had received from an insurance settlement and her life savings; accumulated through over 20 years of work as a hotel housekeeper and hospital janitor. Ethel Hylton completely documented where she got the money and was never charged with a crime. But the police kept her mojey anyway. Nearly four years later, she is still trying to get her money back.
Ethel Hylton is just one of a large and growing list of Americans - now numbering in the hundreds of thousands - who have been victimized by civil asset forfeiture. Under civil asset forfeiture, everything you own can be legally taken away even if you are never indicted, tried or convicted of a crime.
Suspicion of offenses which, if proven in court, might result in a $200 fine or probation, are being used to justify seizure of tens or even hundreds of thousands of dollars worth of property. Totally innocent Americans are losing their cars, homes and businesses, based on the claims of anonymous informants that illegal transactions took place on their property. Once property is seized, it is virtually impossible to get it back.
Property is now being seized in every state and from every class of Americans. Seizures include pocket money confiscated from public housing residents in Florida; cars taken away from men suspected of soliciting prostitutes in Oregon; and homes taken away from ordinary, middle-class Americans whose teenage children are accused of selling a few joints of marijuana. No person and no property is immune from seizure. You could be the next victim. Here are some examples:
The incentive for government agencies to expand forfeiture is enormous. Agencies can easily seize property and they usually keep what they take. According to the Pittsburgh Press, 80% of seizure victims are never even charged with a crime. Law enforcement agencies often keep the best seized cars, watches and TVs for their "departments," and sell the rest.
How extensive are seizures in America today? In April 1990, The Washington Post reported that the U.S. Marshals Service alone had an inventory of over $1.4 billion in seized assets, including over 30,000 cars, boats, home and businesses. Federal and state agencies seizing property now include the FBI, the DEA, the U.S. Marshals Service, the Coast Guard, the IRS, local police, highway patrol, the Department of Housing and Urban Development, FDA, and the Bureau of Land Management. Asset forfeiture is a growth industry. Seizures have increased from $27 million in 1986, to over $644 million in 1991. In 1992, seizures may exceed $1 billion.
Civil asset forfeiture defines a new standard of justice in America; or more precisely, a new standard of injustice. Under civil seizure, property, not an individual is charged with an offense. Even if you are a totally innocent owner, the government can still confiscate your "guilty" property.
If government agents seize your property under civil asset forfeiture, you can forget about being innocent until proven guilty, due process of law, the right to an attorney, or even the right to trial. All these rights only exist of you are charged with a criminal offense; that is, with an offense which could result in your imprisonment. If you (or your property) are accused of a civil offense (offenses which could not result in your imprisonment), the Supreme Court has ruled that you have no presumption of innocence, no right to an attorney, and no protection from double jeopardy.
Seizure occurs when government takes away your property. Forfeiture is when legal title is permanently transferred to the state. To get seized property returned, you have to fight the full resources of your state or the federal government; sometimes both! You have to prove your property's "innocence" by documenting how you earned every cent used to pay for it. You have to prove that neither you nor any of your family members ever committed an illegal act involving the property. [Editor: How do you prove the absence of a negative?]
To get a trial, you have to post a nonrefundable "bond" of 10% of the value of your property. You have to pay attorney fees - ranging from $5,000 to over $100,000 - out of your own pocket. Money you pay your attorney is also subject to seizure (either before or after the trial) if the government alleges that those funds were "tainted." And you may be forced through trial after trial, because under civil seizure the Constitutional protection against "double jeopardy" doesn't apply. Once your property is seized, expect to spend years fighting government agencies and expect to be impoverished by legal fees - with no guarantee of winning - while the government keeps your car, home and bank account.
As bad as current asset forfeiture laws are, far worse is just ahead. Hundreds of expanded asset forfeiture bills are pending before Congress and state legislatures. The 1991 Omnibus Crime Bill (passed by Congress, but vetoed by President Bush for being "too soft" on crime), increases from six months to six-and-one-half years the time officials have to return "improperly seized" property to its rightful owners.
The 1992 Omnibus Crime Bill extends civil asset forfeiture to political dissent. Under this Bill, if "violence" occurs during a political activity, the assets of the sponsoring organization are subject to forfeiture. If a fist fight broke out during a union picket, all of the union's assets could be seized. Even before this Bill has passed, cars belonging to Operation Rescue demonstrators are being confiscated.
Civil asset forfeiture is the beginning of the end of justice in America. Current and pending laws give government agencies the legal right to loot at will. The threat of asset forfeiture can be used to intimidate businesses, silence dissent, and destroy families.
Some people are fighting back. A New Jersey-based group, Forfeiture Endangers American Rights (FEAR), is lobbying Congress and creating a national network of forfeiture defense attorneys. The Drug Policy Foundation and the Criminal Justice Policy Foundation are fighting existing and proposed asset forfeiture laws. And the Citizens for the Bill of Rights is engaging in grass roots education and organizing opposition on a state level. These groups need your help to succeed.
The fight against civil asset forfeiture is a battle against tyranny in America. If forfeiture squads continue to expand, liberty and justice in America will become a fading memory. We must stop government looters and restore the rule of law now. Tomorrow will be too late.
You're Best Off Keeping Your Property Private
[Editor's comments: In general, you are best off keeping your property private,
by minimizing the amount of your property bureaucrats know about and therefore
might be tempted to seize to fatten their coffers with ill-gotten gains. Minimizing the
amount of information about your property that falls into the hands of bureaucrats
is one excellent way to do this. Of course, any such actions should be done lawfully. See
other materials from Build Freedom for various ideas on how to do this. For example,
consider our Pure Trust Package (about 8 or 9 reports for $49), Beat-the-IRS Package (8
reports for $49, most particularly Report TL16G - "The Reliance Defense Method"
- which may be individually purchased for $15 - covers many of the "good-faith
state-of-mind" issues important for lawful privacy protection). For
offshore/international approaches to property protection & privacy, try our Report
TL22 - "The Scope Report" for $2.
You're probably fighting a losing battle to use "conventional" legal means to fight an unlawful property seizure. You're usually best off if they don't know much about your property in the first place. If the bureaucrats DO know about some of your property, where to find it, and how to find it, you have the option available under common law right to sue to get your property back after they've seized it. Some of the following documents you could consider using in this manner, if they apply to your particular situation.
Keep in mind that if you DO use any of the procedures implied the following documents, you need to know what you're doing. You may wish to consider expert common-law paralegal or legal services. Certainly the use of any of the following common-law legal actions needs to be done in good faith (an example of using the documents "in bad faith" might be if the seized property actually in fact was used in connection with a common-law crime!).
Printed here are documents tailored to three of the possible seizure situations: "Federal" seizure, "State" seizure, and "State of California" seizure. You may be able to use the "State" seizure form in almost any state, but you may wish to do a bit of research to customize it for your state. Perhaps one or more of the common-law services listed elsewhere in this manual might be willing to assist you with this. This "customization" may not be necessary. At the very least, of course, you'll need to fill in the name of the state, as applicable. For residents of Louisiana: keep in mind that Louisiana is not a "common-law" state; proper procedures in Louisiana may be vastly different from the procedures outlined in these documents. Procedures may also be quite different for residents of D.C., Puerto Rico, and other U.S. possessions.
Notes on Law Freedomries
It would probably benefit you to become familiar with law freedomries. Many non-attorneys
are afraid to enter a law freedomry for fear of appearing unknowledgeable about what to do.
This fear is unfounded.
All you have to do is find a good county law freedomry. Most county law freedomries are open to the public. Some may officially restrict access to residents of that particular county, but few probably ask for ID so if you don't make a big deal about it you can probably get the help you need from the freedomrian and never have the question of ID come up.
You can simply walk up to the desk and explain to a staff member that you are not an attorney and you're new to law freedomries. As long as you're patient so they can attend to other duties and help other customers too, you should get competent help. It may take several visits and many hours to become functionally familiar with using a law freedomry.
Some universities with law schools often have law freedomries that are open to the public. Often the resources at university law freedomries are superior to the resources of county law freedomries. However, often there's the additional restriction of "open to students only." If a particular university law freedomry you wish to use is open to the public, clearly there's no problem - just walk up to the desk, or learn on your own (or both!). If ID is officially required, you could try being low-key and just learn on your own.
GENERAL PROCEDURES TO CONSIDER: Step-by-Step
Asset forfeiture is simple: If a police officer believes (or simply claims) you're a drug dealer, he will take nearly anything you own. Even after determining they can prove nothing against you in a court of law, authorities have a nasty habit of keeping what they have confiscated when you follow the regular procedure for getting back your property. No crime is required. By current wisdom, no evidence (drugs) need be found, no arrest is necessary to allow permanent confiscation of your property. The State presumes that if you have cash at your house over whatever figure the police think is appropriate, then it must be drug money. Every day the State confiscates harmless property and gives hapless seizure victims "due process" by letting them plead with a tight-fisted district attorney for its return. If you have an unconvincing or undocumented explanation of where you got it, it's gone; the government rationale is "you have to prove you didn't get the money from dealing drugs."
Police have powerful incentive to seize your property. When your assets are confiscated the district attorney gets 13.5%, the police get 76.5%, and the state gets 10%. Official abuse of this law is documented in the media regularly. Defense attorneys report seeing an unusual number of clients who have lost cash and property but have not been charged with a crime.
Anyone with a grudge can phone a false tip that can change your life. Suspicion, hearsay, a police vendetta can cost you your car, your cash, your house, your toys, and the clothes in your closet - even though you are guilty of no crime. Such incidents are accelerating throughout the state right now under the "Asset Forfeiture Laws" written by the State Legislature that are enthusiastically endorsed by numerous police agencies. You are now seen as a wonderful source of windfall revenue.
It's time to turn the tables. You have a powerful remedy. Government officials' seizing your property in this manner is itself a cause of action against them. You have a right to the possession of your property. These so-called "Asset Forfeiture Laws" violate the fundamental rules of due process under our State Constitution and you can take advantage of this. In California, no combination of government officials can deprive you of life, liberty, or property prior to the approval of a jury. [Procedures for states other than California are also included, as is information covering "Federal."]
These instructions are written so you can: take advantage of this "Asset Forfeiture Relief" packet; get relief for yourself; obtain the return of your lawful property; put the screws to the acquisitive authorities; and bring an end to this travesty of justice. This remedy is powerful - constitutionally protected under the Common Law. Read all the material in this packet before you consider proceeding.
"Notice" to the "Federal" Bureaucrats Responsible for Unlawfully Seizing Your Property that They Face Further Action Under Common Law if They Fail to Promptly Return the Unlawfully Seized Property to You.
[date] From: [name of Plaintiff] [name of trespasser] [street address of Plaintiff] [city], [state] [city], [state] a Republic [zip] a Republic [zip]
BY DECLARATION
TO WHOM IT MAY CONCERN
and Legal Offices of Representation:
FINAL NOTICE AND REQUEST TO RETURN CONFISCATED PROPERTY
YOU ARE HEREBY & HEREIN NOTICED THAT the undersigned continues to ATTEST AND AFFIRM, under penalty of perjury in the state of [state], a Republic, that your offices under the "color of official office," "color of Law," by arbitrarily and capriciously confiscating my non-contraband property without benefit of a jury trial, have committed the following injurious and damaging acts:
Bluntly, you owe me a jury trial prior to property deprivation under fundamental law, whether you claim your jurisdiction is civil or criminal; see the Supreme Court in United States v. Lovett, 323 U.S. 303, 315-318 (1945); FRCivP Rule 38; Amendments 5 & 6 , United States Constitution. You have already committed an actionable offense against me; this notice is required to afford you opportunity to correct yourself before I take action against you. The undersigned herein states that this is a FINAL NOTICE AND REQUEST TO RETURN CONFISCATED PROPERTY against continued "malum in se" actions "under color of law" damaging me through permanent conversion of my property.
This notice fully informs you of the unlawfulness of your actions. This notice constitutes actual notice providing sufficient facts to put a prudent man of ordinary intelligence upon reasonable inquiry as to the above stated facts. It creates the same legal effect as your having actual knowledge; see California Civil Code § 19; Dolch v. Ramsey, 57 C.A.2d 99,105 [2] (1943). For this reason, this notice nullifies "objectively reasonable reliance on the law" as a defense on your part. In any action against you, this notice will be a prominent exhibit displayed to the jury.
Should the property you have unlawfully confiscated from my possession not be returned ON OR BEFORE____________________ 19____, request for investigations shall be instigated with the District Grand Jury offices in, and/or District Civil Remedies shall be sought against you in your individual capacity in the Courts with trial by Jury under the Common Law.
FURTHER SAYETH NAUGHT
Declarant, of legal age and sovereign capability to act in his/her behalf, has read the
foregoing FINAL NOTICE AND REQUEST TO RETURN CONFISCATED PROPERY and has heard the
foregoing statements and brief, and states under penalty of perjury under the laws of the
United States of America that the facts and law stated therein are true and correct to the
best of his/her knowledge, information, and belief.
Dated:__________________________ Signed:__________________________
Declarant
JURAT
STATE OF [STATE] )
)
)
COUNTY OF )
On this, _______day of__________________, 19____, before me, the undersigned Notary Public in and for the State of [state], County______________________ , [name of Plaintiff] personally appeared and proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the above verification to the above FINAL NOTICE AND REQUEST TO RETURN CONFISCATED PROPERTY and acknowledged to me that he executed the same in his individual capacity, and that by his signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the verification.
Witness my hand and official seal
Signature of Notary My commission expires
"Complaint at Law" that Commences Formal Action Against Those Who Unlawfully Seized Your Property and Failed to Return the Property Promptly After Being Given Due Notice to do so.
[name of Plaintiff]
[street address]
[name of City], [state]
a Republic [zip]
[phone # of Plaintiff]
As a Sovereign American, in pro per
Plaintiff(s) for (WE THE PEOPLE)
UNITED STATES OF AMERICA, DISTRICT
COURT OF COMMON LAW PLEADINGS,
[street address and city of court][state],
in and for the___________ District of the
REPUBLIC OF THE state of [state],
County of______________________,
s/REPUBLIC OF [state]
FOR THE COUNTY OF__________________
WE THE PEOPLE OF THE ) CASE NO.
UNITED STATES OF AMERICA )
BY [name of Plaintiff] )
Plaintiff(s) ) COMPLAINT AT LAW
)
vs. )
)
[names of Defendants with their ) ACTION IN TRESPASS and
official capacities] ) SPECIAL ASSUMPSIT
)
) Demand for Trial
) by Jury at Common Law
John Does x through 4999 )
)
All Defendants in ) MEMORANDUM OF LAW
their individual capacities )
)
DEFENDANT(S) )
BY DECLARATION:
PARTIES AND VENUE
FIRST CAUSE OF ACTION
TRESPASS
SECOND CAUSE OF ACTION
BREACH OF CONTRACT
WHEREAS Defendants, individually and through the official authority of office did conspire individually and collectively and did TRESPASS upon the Sovereign rights immediately, directly, and by implied force thereby causing injury to Plaintiff's sovereign rights; and WHEREAS Defendants appearing individually through "Color of office" TRESPASS through acts of "malum in se" plaintiff has been damaged as follows:
WHEREFORE Plaintiff, the premises considered, requests and prays the court try, ascertain, the TRESPASS and violation of contract perpetrated by Defendants, individually, through their official capacities and representations exercising "malum in se" with total disregard for Plaintiff's inviolate Sovereign rights; and to adjudicate such Trespass quantitatively and qualitatively through determination from Trial by Jury.
Jury Trial Demand
Affirmed and respectfully submitted this______ day of__________________, 19____
Signed:____________________________.
[name of Plaintiff], in pro per
as a Sovereign American
FURTHER SAYETH NAUGHT
"Memorandum of Law" that Gives Additional Support for the Legal Basis on Which the "Complaint at Law" was Filed
[name of Plaintiff]
[street address]
[name of City], [state]
a Republic [zip]
[phone # of Plaintiff]
As a Sovereign American, in pro per
Plaintiff(s) for (WE THE PEOPLE)
UNITED STATES OF AMERICA, DISTRICT
COURT OF COMMON LAW PLEADINGS,
[street address and city of court] [state], in
and for the__________________ District of the
of the REPUBLIC OF THE state of [state],
County of____________________, s/
REPUBLIC OF THE state of [state], County of
___________________, s/ REPUBLIC OF [state]
FOR THE COUNTY OF________________
WE THE PEOPLE OF THE ) CASE NO.
UNITED STATES OF AMERICA )
BY [name of Plaintiff] )
PLAINTIFF(S) )
vs. ) MEMORANDUM OF LAW
) in support of
[names of Defendants with their ) ACTION IN TRESPASS and
official capacities] ) SPECIAL ASSUMPSIT
)
John Does x through 4999 )
)
All Defendants in )
their individual capacities )
)
DEFENDANT(S) )
"No Bill of Attainder or ex post facto Law shall be passed." - Article 1, Section 9, United States Constitution
No legislature, State or Federal, may pass a Bill of Attainder. See U.S. Const. Art. I, §§ 9-10. F.O.P. Lodge No. 121 v. City of Hobart, 864 F.2d 551, 556 (7th Cir., 1988)
A bill of attainder may affect the life of an individual, or may confiscate his property, or may do both.
In this form the power of the legislature over the lives and fortunes of individuals is expressly restrained...
Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 138, 3 L.Ed. 162,178 (1810
...In 1810 , Chief Justice Marshall, speaking for the Court in Fletcher v. Peck, 6 Cranch 87, 138, stated that "[a] bill of attainder may affect the life of an individual, or may confiscate his property, or may do both." This means, of course, that what were known at common law as bills of pains and penalties are outlawed by the Bill of Attainder Clause. The Court's pronouncement therefore served notice that the Bill of Attainder Clause was not to be given a narrow historical reading (which would exclude bills of pains and penalties), but was instead to be read in light of the evil the Framers had sought to bar: Legislative punishment, of any form or severity, of specifically designated persons or groups. See also Ogden v. Sauders, 12 Wheat. 213, 286. United States v. Brown, 381 U.S. 437, 447 (1964
A bill of attainder is a legislative act which inflicts a punishment without a judicial trial.
If the punishment be less than death, the act is termed a bill of pain and penalties. Within the meaning of the Constitution, bills of attainder include bills of pains and penalties. In these cases the legislative body, in addition to its legitimate functions, exercises the powers and office of judge; it assumes, in the language of the text books, judicial magistracy; it pronounces upon the guilt of the party, without any of the forms or safeguards of trial; it determines the sufficiency of the proofs produced, whether conformable to the rules of evidence or otherwise; and it fixes the degree of punishment in accordance with its own notions of the enormity of the offense.
"Bills of this sort," says Mr. Justice Story, "have been most usually passed in England in times of rebellion, or gross subserviency to the Crown, or of violent political excitement; periods in which all nations are most liable (as well the free as the enslaved) to forget their duties, and to trample upon the rights and liberties of others." Story, Com. § 1344. Cummings v Missouri, (1867) 71 U.S. 277, 323
...On the same day the Cummings case was decided, the Court, in Ex parte Garland, 4 Wall, 333, also held invalid on the same grounds an Act of Congress which required attorneys practicing before this court to take a similar oath. Neither of these cases has ever been overruled. They stand for the proposition that legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are either bills of attainder prohibited by the Constitution....
Those who wrote our Constitution well knew the danger inherent in special legislative acts which take away the life, liberty, or property of particular named persons because the legislature thinks them guilty of conduct which deserves punishment. They intended to safeguard the people of this country from punishment without trial by duly constituted courts. See Duncan v. Kahanamoku, 327 U.S. 304. And even the courts to which this important function was entrusted were commanded to stay their hands until and unless certain tested safeguards were observed. An accused in court must be tried by an impartial jury [emphasis added], has a right to be represented by counsel, he must be clearly informed of the charge against him, the law which he is charged with violating must have been passed before he committed the act charged, he must be confronted by the witnesses against him, he must not be compelled to incriminate himself, he cannot twice be put in jeopardy for the same offense, and even after conviction no cruel and unusual punishment can be inflicted upon him. See Chambers v. Florida, 309 U.S. 227, 235-238. When our Constitution and Bill of Rights were written, our ancestors had ample reason to know that legislative trials and punishments were too dangerous to liberty to exist in the nation of free men they envisioned. And so they proscribed bills of attainder... United States v. Lovett, 328 U.S. 303, 315-319 (1946
The District Court held that § 12(f) falls within the category of congressional actions that Art. I, § 9, cl. 3, of the Constitution bars by providing that "[N]o Bill of Attainder...shall be passed." A bill of attainder was most recently described by this court as "a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial." Nixon v. Administrator of General Services, 433 U.S. 425, 468 (1977); see United States v. O'Brien, 391 U.S. 367, 383, n. 30 (1968); United States v. Lovett, 328 U.S. 303, 315 (1946). Appellants argue that § 12(f) does not satisfy any of these three requirements, i.e., specification of the affected persons, punishment, and lack of a judicial trial. [We agree with appellants that the statute does not single out an identifiable group that the denial of Title IV aid does not constitute punishment. Appellants also argue that § 12(f) does not dispense with a judicial trial, noting that a hearing is provided in the event of disagreement between the applicant and the Secretary about whether the applicant has registered, §12(f)(4), and that the decision made at that hearing is subject to judicial review. Appellants' argument is meritless. Congress has not provided a judicial trial to those affected by the statute [emphasis added]. Selective Service v. Minn. Public Int. Research Group, 468 U.S. 841, 846, 847 (1983).]
Where Rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them. Miranda v. Arizona, 384 U.S. 436, 491 (1965
Those terms "law of the land" do not mean merely an act of the general assembly. If they did, every restriction upon the legislative authority would be at once abrogated. For what more can the citizen suffer than to be "taken, imprisoned, deprived of his freehold, liberties, and privileges, be outlawed, exiled, and destroyed, and be deprived of his property, his liberty, and his life," without crime? Yet all this may he may suffer if an act of the assembly simply denouncing those penalties upon particular persons, or a particular class of persons, be in itself a law of the land within the sense of the constitution; for what is, in that sense, the law of the land, must be duly observed by all, and upheld and enforced by the courts.
In reference to the infliction of punishment and divesting of the rights of property, it has been repeatedly held in this state, and it is believed in every other of the union, that there are limitations upon the legislative power, notwithstanding those words; and that the clause itself means that such legislative acts as profess in themselves directly to punish persons, or to deprive the citizen of his property, without trial before the judicial tribunals, and a decision upon the matter of right, as determined by the laws under which it is vested, according to the course, mode, and usages of the common law, as derived from our forefathers, are not effectually "laws of the land," for those purposes. Hoke v. Henderson, 25 Am. Dec. 677, 688, 689 (1833) Supreme Court of North Carolina
"...While property kept in violation of law which is incapable of lawful use and declared to be a nuisance per se may be forfeited without a trial by jury under the police power, it does not follow that property ordinarily used for lawful purposes - innocent property - may be forfeited without a trial by jury where an issue of fact is joined as to whether the property was being used for an unlawful purpose or is to be taken from innocent owner. There is no general constitutional right to a jury trial in actions for the seizure and forfeiture of contraband articles. But property is not contraband or a public nuisance merely because it was instrumental in the commission of a public offense.
"[5] It is argued that this proceeding for the forfeiture of property used in violation of law is a special proceeding, equitable in nature... The right to a trial by jury cannot be avoided by merely calling an action a special proceeding or equitable in nature. If that could be done, the Legislature, by providing new remedies and new judgments and decrees in form equitable, could in all cases dispense with jury trials, and thus entirely defeat the provision of the Constitution. The legislature cannot convert a legal right into an equitable one so as to infringe upon the right of trial by jury. The provision of the Constitution does not permit the legislature to confer on the courts the power of trying according to the course of chancery any question which has always been triable according to the course of the common law by a jury. If the action has to deal with ordinary common-law rights cognizable in courts of law, it is to that extent an action at law. In determining whether the action was one triable by a jury at common law, the court is not bound by the form of the action but rather by the nature of the rights involved and the facts of the particular case - the gist of the action. A jury trial must be granted where the gist of the action is legal, where the action is in reality cognizable at law...
"[6]... The constitutional right of trial by jury is not to be narrowly construed. It is not limited strictly to those cases in which it existed before the adoption of the Constitution but is extended to cases of like nature as may afterwards arise. It embraces cases of the same class thereafter arising. At common law, prior to the adoption of the Constitution, a party against whom the forfeiture of property used in violation of law (then a carriage, wagon, horse or mule, now usually an automobile), was sought to be enforced was entitled to a trial by jury. Consequently such rights exists now. The introduction of a new subject into a class renders it amenable to its general rules, not to its exceptions.
"[7] There were petty offenses against statutes or municipal ordinances which were not triable by jury at the time the Constitution was adopted. As to them, the right of trial by jury has never existed; and, hence they were triable without a jury when the Constitution was adopted; they are now triable without a jury. Blackstone gives a number of illustrations. In none of the illustrations given by Blackstone was the power sanctioned or upheld to enforce, in a summary proceeding, without a jury, the forfeiture of property which may be, and ordinarily is, used for lawful purposes...
"[8] We conclude that this forfeiture proceeding by the State is the type of action which was cognizable in a common-law court, and triable by a jury in the Court of Exchequer, according to the course of the common law; that trial by jury was recognized as a right in the trial of actions for the forfeiture or property seized because used in violation of law at common law at the time of the adoption of the Constitution of California, and that appellant had a constitutional right to a trial by jury of the issues of fact in this case.
"[9] The denial of a trial by jury to one constitutionally entitled thereto constitutes a miscarriage of justice and requires a reversal of the judgment. (Cowlin v. Pringle, 46 Cal.App.2d 472, 476 [116 P.2d 109].)" People v. One 1941 Chevrolet Coupe, 37 C.2d 283, 299, 300 (1951
"A decision is arbitrary or capricious when it is not supported by evidence or when there is no reasonable justification for the decision." Canty v. Board of Education, City of New York, 312 F. Sup. 254, 256 [5] (S.D.N.Y., 1970)
"[3]... While the plaintiff in a personal-capacity suit need not establish a connection to governmental "policy or custom," Officials sued in their personal capacities, unlike those sued in their official capacities, may assert personal immunity defense such as objectively reasonable reliance on existing law. Id., at 166-167, 105 S.Ct., at 3105-3106." Hafer v. Melo, 113 S.Ct. 358, 362 (1991
"This Court has long assumed that actions to recover land, like actions for damages to a person or property, are action at law triable to a jury. In Whitehead v. Shattuck, 138 U.S. 146, 151, for example, we recognized that 'it would be difficult, and perhaps impossible, to state any general rule which would determine, in all cases, what should be deemed a suit in equity as distinguished from an action at law...; but this may be said, that, where an action is simply for the recovery and possession of specific real or personal property, or for recovery of a money judgment, the action is one at law." "The distinction between 'title to and possession of property, of course, was well recognized at common law. But however relevant it was for certain purposes, it had no bearing on the right to jury trial. The various forms of action which the common law developed for the recovery of real property were also actions at law in which trial by jury was afforded." Pernell v. Southall Realty, 416 U.S. 363
The Phrase 'common law' found in this clause, is used in contradistinction to equity, and admiralty, and maritime jurisprudence. Parsons v. Bedford, 3 Peter 433, 447 (1830)
If the common law can try the cause and give full redress, that alone takes away the admiralty jurisdiction. Ramsey v. Allegrie, 25 U.S. (12 Wheaton) 611, 631 (1827
A complaint may not be dismissed on motion if it states some sort of claim, baseless though it may prove to be and inartistically as the complaint may be drawn. This is particularly true where the plaintiff is not represented by counsel. Brooks v. Pennsylvania R. Co., 91 F. Supp. 101 (1950
"A person may not have actual knowledge of certain facts, but if he has knowledge of sufficient facts to cause a reasonably prudent person of ordinary intelligence to make inquiry, the law will impute knowledge of those facts which may be easily ascertained by reasonable inquiry. When the law imputes knowledge, it has the same legal effect as though there was actual knowledge." Dolch v Ramsey, 57 C.A.2d 99, 105 [2] (1943
"The Trial of all Crimes [emphasis added], except in Cases of Impeachment, shall be by Jury." Article 3, Section 2, United States Constitution
"... Nor shall private property be taken for public use, without just compensation." U.S. Constitution, Amendment 5
" In all criminal prosecutions [emphasis added], the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense." U.S. Constitution, Amendment 6
DATE:________________________
x:____________________________
"Notice" to the "State" Bureaucrats Responsible for Unlawfully Seizing Your Property that They Face Further Action Under Common Law if They Fail to Promptly Return the Unlawfully Seized Property to You.
[date] From: [name of Plaintiff] [name of trespasser] [street address of Plaintiff] [address of trespasser] [city], [state] [city], [state] a Republic [zip] a Republic [zip
BY DECLARATION
To [State agent] and Legal Offices of Representation:
FINAL NOTICE AND REQUEST TO RETURN CONFISCATED PROPERTY
YOU ARE HEREBY & HEREIN NOTICED THAT the undersigned continues to ATTEST AND AFFIRM, under penalty of perjury in the state of [state], a Republic, that your offices under the "color of official office," "color of Law," by arbitrarily and capriciously confiscating my non-contraband property without benefit of a jury trial, have committed the following injurious and damaging acts:
Bluntly, you owe me a jury trial prior to property deprivation under fundamental law, whether you claim your jurisdiction is civil or criminal; see the Supreme Court in United States v. Lovett, 323 U.S. 303, 315-318 (1945); FRCivP Rule 38; Amendments 5 & 6 , United States Constitution. You have already committed an actionable offense against me; this notice is required to afford you opportunity to correct yourself before I take action against you. The undersigned herein states that this is a FINAL NOTICE AND REQUEST TO RETURN CONFISCATED PROPERY against continued "malum in se" actions "under color of law" damaging me through permanent conversion of my property.
This notice fully informs you of the unlawfulness of your actions. This notice constitutes actual notice providing sufficient facts to put a prudent man of ordinary intelligence upon reasonable inquiry as to the above stated facts. It creates the same legal effect as your having actual knowledge; see California Civil Code § 19; Dolch v. Ramsey, 57 C.A.2d 99,105 [2] (1943). For this reason, this notice nullifies "objectively reasonable reliance on the law" as a defense on your part. In any action against you, this notice will be a prominent exhibit displayed to the jury.
Should the property you have unlawfully confiscated from my possession not be returned ON OR BEFORE____________, 199____, request for investigations shall be instigated with the District Grand Jury offices in, and/or District Civil Remedies shall be sought against you in your individual capacity in the Courts with trial by Jury under the Common Law.
FURTHER SAYETH NAUGHT
Declarant, of legal age and sovereign capability to act in his/her behalf, has read the foregoing FINAL NOTICE AND REQUEST TO RETURN CONFISCATED PROPERY and has heard the foregoing statements and brief, and states under penalty of perjury under the laws of the United States of America that the facts and law stated therein are true and correct to the best of his/her knowledge, information, and belief.
Dated:________________________
Signed:_______________________
Declarant
JURAT
STATE OF [STATE] )
)
)
COUNTY OF )
On this ______ day of _________________ , 199____, before me, the undersigned Notary Public in and for the State of [state], County of _________________ [name of Plaintiff] personally appeared and proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the above verification to the above FINAL NOTICE AND REQUEST TO RETURN CONFISCATED PROPERTY and acknowledged to me that he executed the same in his individual capacity, and that by his signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the verification.
Witness my hand and official seal
Signature of Notary__________________
My commission expires_______________
"Complaint at Law" that Commences Formal Action Against Those Who Unlawfully Seized Your Property and Failed to Return the Property Promptly After Being Given Due Notice to do so.
[name of Plaintiff]
[street address]
[name of City], [state]
a Republic [zip]
[phone # of Plaintiff]
As a Sovereign American, in pro per
Plaintiff(s) for (WE THE PEOPLE)
UNITED STATES OF AMERICA, DISTRICT
COURT OF COMMON LAW PLEADINGS,
[street address and city of court] [state], in
and for the_________________ District of the
REPUBLIC OF THE state of [state], County of
______________________, s/REPUBLIC OF [state]
FOR THE COUNTY OF_______________________
THE PEOPLE OF THE ) CASE NO.
STATE OF [STATE] )
BY [name of Plaintiff] )
PLAINTIFF(S) ) COMPLAINT AT LAW
)
vs. )
)
[names of Defendants with their ) ACTION IN TRESPASS and
official capacities] ) SPECIAL ASSUMPSIT
)
) Demand for
) Trial by Jury at Common Law
John Does x through 4999 )
)
All Defendants in ) MEMORANDUM OF LAW
their individual capacities )
)
DEFENDANT(S) )
BY DECLARATION:
PARTIES AND VENUE
FIRST CAUSE OF ACTION
TRESPASS
SECOND CAUSE OF ACTION
BREACH OF CONTRACT
WHEREAS Defendants, individually and through the official authority of office did conspire individually and collectively and did TRESPASS upon the Sovereign rights immediately, directly, and by implied force thereby causing injury to Plaintiff's sovereign rights; and WHEREAS Defendants appearing individually through "Color of office" TRESPASS through acts of "malum in se" plaintiff has been damaged as follows:
WHEREFORE Plaintiff, the premises considered, requests and prays the court try, ascertain, the TRESPASS and violation of contract perpetrated by Defendants, individually, through their official capacities and representations exercising "malum in se" with total disregard for Plaintiff's inviolate Sovereign rights; and to adjudicate such Trespass quantitatively and qualitatively through determination from Trial by Jury.
JURY TRIAL DEMAND
Affirmed and respectfully submitted this_______ day of__________________, 199__
Signed:__________________________________
[name of Plaintiff], in pro per as a Sovereign American
FURTHER SAYETH NAUGHT
"Memorandum of Law" that Gives Additional Support for the Legal Basis on Which the "Complaint at Law" was Filed
[name of Plaintiff]
[street address]
[name of City], [state]
a Republic [zip]
[phone # of Plaintiff]
As a Sovereign American, in pro per
Plaintiff(s) for (WE THE PEOPLE
UNITED STATES OF AMERICA, DISTRICT
COURT OF COMMON LAW PLEADINGS,
[street address and city of court] [state], in
and for the____________________ District of the
of the REPUBLIC OF THE state of [state],
County of__________________________ , s/
REPUBLIC OF THE state of [state], County of
____________________, s/ REPUBLIC OF [state]
FOR THE COUNTY OF_____________________
WE THE PEOPLE OF THE ) CASE NO.
UNITED STATES OF AMERICA )
BY [name of Plaintiff] )
PLAINTIFF(S) )
vs. ) MEMORANDUM OF LAW
) in support of
[names of Defendants with their ) ACTION IN TRESPASS and
official capacities] ) SPECIAL ASSUMPSIT
)
John Does x through 4999 )
)
All Defendants in )
their individual capacities )
)
DEFENDANT(S) )
"No Bill of Attainder or ex post facto Law shall be passed." - Article 1, Section 9, United States Constitution
No legislature, State or Federal, may pass a Bill of Attainder. See U.S. Const. Art. I, §§ 9-10. F.O.P. Lodge No. 121 v. City of Hobart, 864 F.2d 551, 556 (7th Cir., 1988)
A bill of attainder may affect the life of an individual, or may confiscate his property, or may do both. In this form the power of the legislature over the lives and fortunes of individuals is expressly restrained... Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 138, 3 L.Ed. 162,178 (1810)
...In 1810 , Chief Justice Marshall, speaking for the Court in Fletcher v. Peck, 6 Cranch 87, 138, stated that "[a] bill of attainder may affect the life of an individual, or may confiscate his property, or may do both." This means, of course, that what were known at common law as bills of pains and penalties are outlawed by the Bill of Attainder Clause. The Court's pronouncement therefore served notice that the Bill of Attainder Clause was not to be given a narrow historical reading (which would exclude bills of pains and penalties), but was instead to be read in light of the evil the Framers had sought to bar: Legislative punishment, of any form or severity, of specifically designated persons or groups. See also Ogden v. Sauders, 12 Wheat. 213, 286. United States v. Brown, 381 U.S. 437, 447 (1964
A bill of attainder is a legislative act which inflicts a punishment without a judicial trial.
If the punishment be less than death, the act is termed a bill of pain and penalties. Within the meaning of the Constitution, bills of attainder include bills of pains and penalties. In these cases the legislative body, in addition to its legitimate functions, exercises the powers and office of judge; it assumes, in the language of the text books, judicial magistracy; it pronounces upon the guilt of the party, without any of the forms or safeguards of trial; it determines the sufficiency of the proofs produced, whether conformable to the rules of evidence or otherwise; and it fixes the degree of punishment in accordance with its own notions of the enormity of the offense.
"Bills of this sort," says Mr. Justice Story, "have been most usually passed in England in times of rebellion, or gross subserviency to the Crown, or of violent political excitement; periods in which all nations are most liable (as well the free as the enslaved) to forget their duties, and to trample upon the rights and liberties of others." Story, Com. § 1344. Cummings v Missouri, (1867) 71 U.S. 277, 323
...On the same day the Cummings case was decided, the Court, in Ex parte Garland, 4 Wall, 333, also held invalid on the same grounds an Act of Congress which required attorneys practicing before this court to take a similar oath. Neither of these cases has ever been overruled. They stand for the proposition that legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are either bills of attainder prohibited by the Constitution....
Those who wrote our Constitution well knew the danger inherent in special legislative acts which take away the life, liberty, or property of particular named persons because the legislature thinks them guilty of conduct which deserves punishment. They intended to safeguard the people of this country from punishment without trial by duly-constituted courts. See Duncan v. Kahanamoku, 327 U.S. 304. And even the courts to which this important function was entrusted were commanded to stay their hands until and unless certain tested safeguards were observed. An accused in court must be tried by an impartial jury [emphasis added], has a right to be represented by counsel, he must be clearly informed of the charge against him, the law which he is charged with violating must have been passed before he committed the act charged, he must be confronted by the witnesses against him, he must not be compelled to incriminate himself, he cannot twice be put in jeopardy for the same offense, and even after conviction no cruel and unusual punishment can be inflicted upon him. See Chambers v. Florida, 309 U.S. 227, 235-238. When our Constitution and Bill of Rights were written, our ancestors had ample reason to know that legislative trials and punishments were too dangerous to liberty to exist in the nation of free men they envisioned. And so they proscribed bills of attainder... United States v. Lovett, 328 U.S. 303, 315-319 (1946
The District Court held that § 12(f) falls within the category of congressional actions that Art. I, § 9, cl. 3, of the Constitution bars by providing that "[N]o Bill of Attainder...shall be passed." A bill of attainder was most recently described by this court as "a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial." Nixon v. Administrator of General Services, 433 U.S. 425, 468 (1977); see United States v. O'Brien, 391 U.S. 367, 383, n. 30 (1968); United States v. Lovett, 328 U.S. 303, 315 (1946). Appellants argue that § 12(f) does not satisfy any of these three requirements, i.e., specification of the affected persons, punishment, and lack of a judicial trial. [We agree with appellants that the statute does not single out an identifiable group that the denial of Title IV aid does not constitute punishment. Appellants also argue that § 12(f) does not dispense with a judicial trial, noting that a hearing is provided in the event of disagreement between the applicant and the Secretary about whether the applicant has registered, §12(f)(4), and that the decision made at that hearing is subject to judicial review. Appellants' argument is meritless. Congress has not provided a judicial trial to those affected by the statute [emphasis added]. Selective Service v. Minn. Public Int. Research Group, 468 U.S. 841, 846, 847 (1983).]
Where Rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them. Miranda v. Arizona, 384 U.S. 436, 491 (1965
"...While property kept in violation of law which is incapable of lawful use and declared to be a nuisance per se may be forfeited without a trial by jury under the police power, it does not follow that property ordinarily used for lawful purposes - innocent property - may be forfeited without a trial by jury where an issue of fact is joined as to whether the property was being used for an unlawful purpose or is to be taken from innocent owner. There is no general constitutional right to a jury trial in actions for the seizure and forfeiture of contraband articles. But property is not contraband or a public nuisance merely because it was instrumental in the commission of a public offense.
"[5] It is argued that this proceeding for the forfeiture of property used in violation of law is a special proceeding, equitable in nature... The right to a trial by jury cannot be avoided by merely calling an action a special proceeding or equitable in nature. If that could be done, the Legislature, by providing new remedies and new judgments and decrees in form equitable, could in all cases dispense with jury trials, and thus entirely defeat the provision of the Constitution. The legislature cannot convert a legal right into an equitable one so as to infringe upon the right of trial by jury. The provision of the Constitution does not permit the legislature to confer on the courts the power of trying according to the course of chancery any question which has always been triable according to the course of the common law by a jury. If the action has to deal with ordinary common-law rights cognizable in courts of law, it is to that extent an action at law. In determining whether the action was one triable by a jury at common law, the court is not bound by the form of the action but rather by the nature of the rights involved and the facts of the particular case - the gist of the action. A jury trial must be granted where the gist of the action is legal, where the action is in reality cognizable at law...
"[6]... The constitutional right of trial by jury is not to be narrowly construed. It is not limited strictly to those cases in which it existed before the adoption of the Constitution but is extended to cases of like nature as may afterwards arise. It embraces cases of the same class thereafter arising. At common law, prior to the adoption of the Constitution, a party against whom the forfeiture of property used in violation of law (then a carriage, wagon, horse or mule, now usually an automobile), was sought to be enforced was entitled to a trial by jury. Consequently such rights exists now. The introduction of a new subject into a class renders it amenable to its general rules, not to its exceptions.
"[7] There were petty offenses against statutes or municipal ordinances which were not triable by jury at the time the Constitution was adopted. As to them, the right of trial by jury has never existed; and, hence they were triable without a jury when the Constitution was adopted, they are not triable without a jury. Blackstone gives a number of illustrations. In none of the illustrations given by Blackstone was the power sanctioned or upheld to enforce, in a summary proceeding, without a jury, the forfeiture of property which may be, and ordinarily is, used for lawful purposes...
"[8] We conclude that this forfeiture proceeding by the State is the type of action which was cognizable in a common-law court, and triable by a jury in the Court of Exchequer, according to the course of the common law; that trial by jury was recognized as a right in the trial of actions for the forfeiture of property seized because used in violation of law at common law at the time of the adoption of the Constitution of California, and that appellant had a constitutional right to a trial by jury of the issues of fact in this case.
"[9] The denial of a trial by jury to one constitutionally entitled thereto constitutes a miscarriage of justice and requires a reversal of the judgment. (Cowlin v. Pringle, 46 Cal. App.2d 472, 476 [116 P.2d 109].)" People v. One 1941 Chevrolet Coupe, 37 C.2d 283, 299, 300 (1951
"The legislature is without power to expropriate one's property by a mere legislative enactment." Equitable Savings & Loan Ass'n v. Superior Court, 230 P.2d 119 127 [13-16], District Court of Appeal, Second District Division 2, California (1951) Charner v. Rose, 70 C. 189, 191 (1886)
"Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct may be changed at will ... of the legislature, unless prevented by constitutional limitations [emphasis added]." Western Indemnity Co. v. Pillsbury,170 Cal. 686, 696 (1915
"Thus there is recognized the incontestable proposition that the exercise of the police power, though an essential attribute of sovereignty for public welfare and arbitrary in its nature, cannot extend beyond the necessities of the case and made a cloak to destroy constitutional rights as to the inviolateness of private property." House v. L.A. County Flood Control Dist., 25 C.2d 384, 388, 389 (1944
"[3] ... While the plaintiff in a personal-capacity suit need not establish a connection to governmental "policy or custom," officials sued in their personal capacities, unlike those sued in their official capacities, may assert personal immunity defenses such as objectively reasonable reliance on existing law. Id., at 166-167, 105 S.Ct., at 3105-3106." Hafer v. Melo,113 S.Ct. 358, 362 (1991
"This Court has long assumed that actions to recover land, like actions for damages to a person or property, are actions at law triable to a jury. In Whitehead v. Shattuck, 138 U.S. 146, 151, for example, we recognized that 'it would be difficult, and perhaps impossible, to state any general rule which would determine, in all cases, what should be deemed a suit in equity as distinguished from an action at law... ; but this may be said, that, where an action is simply for the recovery and possession of specific real or personal property, or for recovery of a money judgment, the action is one at law." "The distinction between 'title to and possession of property, of course, was well recognized at common law. But however relevant it was for certain purposes, it had no bearing on the right to a jury trial. The various forms of action which the common law developed for the recovery of real property were also actions at law in which trial by jury was afforded." Pernell v. Southall Realty, 416 U.S. 363.
The Phrase 'common law' found in this clause, is used in contradistinction to equity, and admiralty, and maritime jurisprudence. Parsons v. Bedford, 3 Peter 433, 446.
By common law, they (framers of the Seventh Amendment) meant what the constitution denominated in the third article 'law,' not merely suits which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered; or where, as in the admiralty, mixture of public law and of maritime law and equity was often found in the same suit. Parsons v. Bedford, 3 Peter 433, 447 (1830).
If the common law can try the cause and give full redress, that alone takes away the admiralty jurisdiction. Brooks v. Pennsylvania R. Co., 91 F. Supp. 101 (1959
" A person may not have actual knowledge of certain facts, but if he has knowledge of sufficient facts to cause a reasonably prudent person of ordinary intelligence to make inquiry, the law will impute knowledge of those facts which may be easily ascertained by reasonable inquiry. When the law imputes knowledge, it has the same legal effect as though there was actual knowledge." Dolch v. Ramsey, 57 C.A.2d 99, 105 [2] (1943
Those terms "law of the land" do not mean merely an act of the general assembly. If they did, every restriction upon the legislative authority would be at once abrogated. For what more can the citizen suffer than to be "taken, imprisoned, deprived of his freehold, liberties, and privileges, be outlawed, exiled, and destroyed, and be deprived of his property, his liberty, and his life," without crime? Yet all this may he may suffer if an act of the assembly simply denouncing those penalties upon particular persons, or a particular class of persons, be in itself a law of the land within the sense of the constitution: for what is, in that sense, the law of the land, must be duly observed by all, and upheld and enforced by the courts.
In reference to the infliction of punishment and divesting of the rights of property, it has been repeatedly held in this state, and it is believed in every other of the union, that there are limitations upon the legislative power, notwithstanding those words; and that the clause itself means that such legislative acts as profess in themselves directly to punish persons, or to deprive the citizen of his property, without trial before the judicial tribunals, and a decision upon the matter of rights, as determined by the laws under which it is vested, according to the course, mode, and usages of the common law, as derived from our forefathers, are not effectually "laws of the land," for those purposes. Hoke v. Henderson, 25 Am, Dec. 677, 688, 689 (1833) Supreme Court of North Carolina
DATE:________________________
X:____________________________
[name of Plaintiff]
[Street address of Plaintiff]
[city], [state]
a Republic [zip]
[Plaintiff's phone #]
As a Sovereign American, in pro per
Plaintiff(s) for (WE THE PEOPLE
UNITED STATES OF AMERICA, DISTRICT
COURT OF COMMON LAW PLEADINGS,
[street address and city of court] [state], in
and for the___________________ District of the
REPUBLIC OF THE state of [state], County of
_______________________, s/REPUBLIC OF [state]
FOR THE COUNTY OF__________________
WE THE PEOPLE OF THE ) CASE NO.
STATE OF [STATE] )
BY [name of plaintiff] )
PLAINTIFF(S) ) Notice of Written Interrogatories
) and
v. ) Notice to produce documents
)
[names of Defendants with their )
official capacities] )
)
John Does x through 4999 )
)
All Defendants in )
their individual capacities )
)
DEFENDANT(S) )
PLEASE TAKE NOTICE that the Plaintiff, [name of plaintiff], requests the following interrogatories be answered and copies of documents produced and mailed or delivered to the Plaintiff's address at: [Plaintiff's address]. This request is made pursuant to discovery rights under Federal rules. Thank you for your cooperation.
DATE:__________________ X:__________________
Notice to Produce Documents
"Notice" to the "California State" Bureaucrats Responsible for Unlawfully Seizing Your Property that They Face Further Action Under Common Law if They Fail to Promptly Return the Unlawfully Seized Property to You.
[date] From: [name of Plaintiff] [name of trespasser] [street address of Plaintiff] [address of trespasser] [city], California [city], California a Republic [zip] a Republic [zip]
TO WHOM IT MAY CONCERN
and Legal Offices of Representation:
FINAL NOTICE AND REQUEST TO RETURN CONFISCATED PROPERTY
YOUR ARE HEREBY & HEREIN NOTICED THAT the undersigned continues to ATTEST AND AFFIRM, under penalty of perjury in the state of California, a Republic, that your offices under the "color of official office," "color of Law" have committed the following injurious and damaging acts:
Bluntly , your owe me a jury trial prior to property deprivation under California's fundamental law; see the California Supreme Court in People v. One 1941 Chevrolet Coupe, 37 C.2d 283 (1951) on in rem seizure actions against property ordinarily used for lawful purposes. You have already committed an actionable offense against me; this notice is required to afford you opportunity to correct yourself before I take action against you. The undersigned herein states that this is a FINAL NOTICE AND REQUEST TO RETURN CONFISCATED PROPERTY against continued "malum in se" actions "under color of law" damaging me through permanent conversion of my property. This notice nullifies "objectively reasonable reliance on the law" as a defense on your part.
Should the property you have unlawfully confiscated from my possession not be returned ON OR BEFORE__________________, 199____, request for investigations shall be instigated with the District Grand Jury offices in__________________ County, California, and/or District Civil Remedies shall be sought against you in your individual capacity in the Courts with trial by Jury under the Common Law.
FURTHER SAYETH NAUGHT
JURAT
Plaintiff, of legal age and sovereign capability to act in his/her behalf, has read the foregoing FINAL NOTICE AND REQUEST TO RETURN CONFISCATED PROPERY and has heard the foregoing statements and brief, and states under penalty of perjury, that the facts and law state therein are true and correct to the best of his/her knowledge, information, and belief.
DATED:_______________
Signed:________________
[name of Plaintiff]
STATE OF CALIFORNIA )
)
)
)
COUNTY OF )
On this_____ day of__________________ 199____, before me, the undersigned Notary Public in and for the State of California, County of________________, [name of Plaintiff] personally appeared and proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the above verification to the above FINAL NOTICE AND REQUEST TO RETURN CONFISCATED PROPERTY and acknowledged to me that he executed the same in his individual capacity, and that by his signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the verification.
Witness my hand and official seal
Signature of Notary____________________
Date of Document________________
"Complaint at Law" that Commences Formal Action Against Those Who Unlawfully Seized Your Property and Failed to Return the Property Promptly After Being Given Due Notice to do so.
[name of Plaintiff]
[street address]
[name of City], California
a Republic [zip]
[phone # of Plaintiff]
As a Sovereign American, in pro per
Plaintiff(s) for (WE THE PEOPLE)
SUPERIOR COURT OF COMMON LAW PLEADINGS
[street address and city of court] California, in
and for the REPUBLIC OF THE state of California,
County of___________________, s/REPUBLIC OF California
WE THE PEOPLE OF THE ) CASE NO.
STATE OF CALIFORNIA )
BY [name of Plaintiff] )
PLAINTIFF(S) ) COMPLAINT AT LAW
vs. )
)
[names of Defendants with their ) ACTION IN TRESPASS and
official capacities] ) SPECIAL ASSUMPSIT
)
) Demand for
) Trail by Jury at Common Law
John Does x through 4999 )
)
All Defendants in ) MEMORANDUM OF LAW
their individual capacities )
) NOTICE OF LIEN
) CCP 700. 015
DEFENDANT(S) ) CCP 699.540
BY DECLARATION:
PARTIES AND VENUE
FIRST CAUSE OF ACTION
TRESPASS
SECOND CAUSE OF ACTION
BREACH OF CONTRACT
WHEREAS Defendants, individually and through the official authority of office did conspire individually and collectively and did TRESPASS upon the Sovereign rights immediately, directly, and by implied force thereby causing injury to Plaintiff's sovereign rights; and WHEREAS Defendants appearing individually through "Color of office" TRESPASS through acts of"malum in se" plaintiff has been damaged as follows:
WHEREFORE Plaintiff, the premises considered, requests and prays the court try, ascertain, the TRESPASS and violation of contract perpetrated by Defendants, individually, through their official capacities and representations exercising "malum in se" with total disregard for Plaintiff's inviolate Sovereign rights; and to adjudicate such Trespass quantitatively and qualitatively through determination from Trial by Jury.
Affirmed and respectfully submitted this_______ day of____________, 199___
Signed:___________________________
[name of Plaintiff], in pro per as a Sovereign American
FURTHER SAYETH NAUGHT
VERIFICATION
I, [name of Plaintiff], am the Plaintiff/Declarant in this action, and am of legal age, of sovereign capability to act in his behalf, and have read the foregoing ACTION IN TRESPASS, SPECIAL ASSUMPSIT, Demand for Jury Trial at Common Law, and know the contents thereof. The same is true as to my knowledge, except as to those materials which are therein alleged on information and belief, and as to those matters, I believe them to be true.
I declare under penalty of perjury that the forgoing is true and correct and that this declaration was executed on __________________ 199__, at_________________, California Republic
_____________________________________
[name of Plaintiff], in pro per
as a Sovereign American
"Memorandum of Law" that Gives Additional Support for the Legal Basis on Which the "Complaint at Law" was Filed
[name of Plaintiff]
[street address]
[name of City], California
a Republic [zip]
[phone # of Plaintiff]
As a Sovereign American, in pro per
Plaintiff(s) for (WE THE PEOPLE)
SUPERIOR COURT OF COMMON LAW PLEADINGS
[street address and city of court] California, in
and for the REPUBLIC OF THE state of California,
County of______________, s/REPUBLIC OF California
WE THE PEOPLE OF THE ) CASE NO.
STATE OF CALIFORNIA )
BY [name of Plaintiff] )
PLAINTIFF(S) )
)
vs. ) MEMORANDUM OF LAW
) in support of
[names of Defendants with their ) ACTION IN TRESPASS and
official capacities] ) SPECIAL ASSUMPSIT
)
)
)
John Does x through 4999 )
)
All Defendants in )
their individual capacities )
)
)
DEFENDANT(S) )
"All men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty; acquiring, possessing and protecting property [emphasis added]; and pursuing and obtaining safety and happiness." California State Constitution, Article 1, Section 1.
This inalienable right has been established in the due course of law under the
provisions of our State Constitution:
"Where a right to trial by jury has been established under state law, the state
cannot deny a particular accused that right without violating even the minimal standards
of the due process clause. See Irvin v. Dowd, 366 U.S. 717, 81 S.Ct 1639, 6.L.Ed.2d
751 (1961); Berrier v. Egeler, 583 F.2d 515, 522 (6th Cir. 1978); Wolfs v.
Britton, 509 F.2d 304 (8th Cir. 1975)...; Braley v. Gladden, 403 F.2d 858,
860-861 (9th Cir. 1968)." Klimas v. Mabry, 519 F.2d 842 848 (8th Cir. 1979
"England, from whom the Western World has largely taken its concepts of individual liberty and of the dignity and worth of every man, has bequeathed to us safeguards for their preservation, the most priceless of which is that of trial by jury. This right has become as much American as it was once the most English. Although this Court has said that the Fourteenth Amendment does not demand the use of jury trials in a State's criminal procedure, Fay v. New York, 332 U.S. 261; Palko v. Connecticut, 302 U.S. 319, every State has constitutionally provided trial by jury. See Columbia University Legislative Drafting Research Fund, Index Digest of State Constitutions, 578-579 (1959). In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, "indifferent" jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process [emphasis added]. In re Oliver, 333 U.S. 257; Tumey v. Ohio, 273 U.S. 510. "A fair trial in a fair tribunal is a basic requirement of due process." In re Murchison, 349 U.S. 133, 136." Irvin v. Dowd, 366 U.S. 717, 721-722 (1960
"The right of trial by jury shall be secured to all [emphasis added], and remain inviolate forever; but a jury trial may be waived by the parties, in all civil cases, in manner to be prescribed by law." Article 1, Section 3, California Constitution 1849, Declaration of Rights
"A person may not by deprived of life, liberty, or property without due process of law [emphasis added] ..." Article 1, §§ 7, 15, California State Constitution
"Trial by jury is an inviolate right and shall be secured to all [emphasis added], but in a civil cause three-fourths of the jury may render a verdict." Article 1, Section 16, California State Constitution
" ... While property kept in violation of law which is incapable of lawful use and declared to be a nuisance per se may be forfeited without a trial by jury under the police power, it does not follow that property ordinarily used for lawful purposes - innocent property - may be forfeited without a trial by jury where an issue of fact is joined as to whether the property was being used for an unlawful purpose or is to be taken from an innocent owner. There is no general constitutional right to a jury trial in actions for the seizure and forfeiture of contraband or a public nuisance merely because it was instrumental in the commission of a public offense.
"[5] It is argued that this proceeding for the forfeiture of property used in violation of law is a special proceeding, equitable in nature ...The right to a trial by jury cannot be avoided by merely calling and action a special proceeding or equitable in nature. If that could be done, the Legislature, by providing new remedies and new judgments and decrees in form equitable, could in all cases dispense with jury trials, and thus entirely defeat the provision of the Constitution. The legislature cannot convert a legal right into an equitable one so as to infringe upon the right of trial by jury. The provision of the Constitution does not permit the legislature to confer on the courts the power of trying according to the course of chancery any question which has always been triable according to the course of the common law by a jury. If the action has to deal with ordinary common-law rights cognizable in courts of law, it is to that extent an action at law. In determining whether the action was one triable by a jury at common law, the court is not bound by the form of the action but rather by the nature of the rights involved and the facts of the particular case - the gist of the action. A jury trial must be granted where the gist of the action is legal, where the action is in reality cognizable at law...
"[6] ... The constitutional right of trial by jury is not to be narrowly construed. It is not limited strictly to those cases in which it existed before the adoption of the Constitution but is extended to cases of like nature as may afterwards arise. It embraces cases of the same class thereafter arising. At common law, prior to the adoption of the Constitution, a party against whom the forfeiture of property used in violation of law (then a carriage, wagon, horse or mule, now usually an automobile), was sought to be enforced was entitled to a trial by jury. Consequently such right exists now. The introduction of a new subject into a class renders it amenable to its general rules, not to its exceptions.
"[7] There were petty offenses against statutes or municipal ordinances which were not triable by jury at the time the Constitution was adopted, they are not triable without a jury. Blackstone was the power sanctioned or upheld to enforce, in summary proceeding, without a jury, the forfeiture of property which may be, and ordinarily is, used for lawful purposes...
"[8] We conclude that this forfeiture proceeding by the State is the type of action which was cognizable in a common-law court, and triable by a jury in the Court of Exchequer, according to the course of the common law; that trial by jury was recognized as a right in the trial of actions for the forfeiture of property seized because used in violation of law at common law at the time of the adoption of the Constitution of California, and that appellant had a constitutional right to a trial by jury of the issues of fact in this case.
"[9] The denial of a trial by jury to one constitutionally entitled thereto constitutes a miscarriage of justice and requires a reversal of the judgment. (Cowlin v. Pringle, 46 Cal.App.2d 472, 476 [116 P.2d 109].)" People v. One 1941 Chevrolet Coupe, 37 C.2d 283, 299, 300 (1951)
"The legislature is without power to expropriate one's property by a mere legislative enactment." Equitable Savings & Loan Ass'n v. Superior Court, 230 P.2d 119 127 [13-16] District Court of Appeal, Second District Division 2, California (1951), Charner v. Rose, 70 C. 189, 191 (1886)
"Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct may be changed at will ... of the legislature, unless prevented by constitutional limitations [emphasis added]." Western Indemnity Co. v. Pillsbury, 170 Cal. 686, 696 (1915
"Thus there is recognized the incontestable proposition that the exercise of the police power, though an essential attribute of sovereignty for public welfare and arbitrary in its nature, cannot extend beyond the necessities of the case and made a cloak to destroy constitutional rights as to the inviolateness of private property." House v. L.A. County Flood Control Dist., 25 C.2d 384, 388, 389 (1944
"[3]... While the plaintiff in a personal-capacity suit need not establish a connection to governmental "policy or custom," officials sued in their personal capacities, unlike those sued in their official capacities, may assert personal immunity defenses such as objectively reasonable reliance on existing law. Id., at 166-167, 105 S.Ct., at 3105-3106." Hafer v. Melo, 113 S.Ct. 358, 362 (1991)
DATE:____________________
X:________________________
[name of Plaintiff]
[street address]
[city], California
a Republic [zip]
[phone # of Plaintiff
in pro per, de jure, sui juris
as a Sovereign American
SUPERIOR COURT OF COMMON LAW PLEADINGS
[street and city address of court] California, in
and for the REPUBLIC OF THE state of California,
County of_______________, s/REPUBLIC OF California
[NAME OF PLAINTIFF], ) CASE NO.
Plaintiff, )
) NOTICE OF LIEN: CCP 699.540
vs. ) CCP 700.015
)
[name each defendant )
with his official capacity] )
)
John and Jane Does x through 4999 )
)
ALL Defendants individually, )
)
Defendants )
BY DECLARATION TO : [names of known defendants] and to all other persons known and unknown who may be similarly situated and all other concerned persons and parties yet to be known in the future.
YOUR ARE HEREBY notified that a Common Law Lien and Writ of Attachment on Real and Personal Property is now in effect. Real or Personal Property is currently held by and located at defendants addresses as indicated and at places not known or to be known.
Plaintiff, and lienor, [name of Plaintiff], claims the ATTACHMENT OF THE COMMON LAW LIEN WRIT OF ATTACHMENT ON REAL AND PERSONAL PROPERTY is in the amount of ten million U.S. Dollars, or in numbers, ($10,000,000.00 U.S.D.).
This notice of Common Law Lien shall be valid notwithstanding any other provision of State or Rule regarding the Form of Content of a (Notice of Lien) nor shall it be dischargeable for 100 years, nor shall it be extinguishable due to my death whether accidentally of purposefully, nor dischargeable by my heir, assign, or executors, except by a Common Law Court.
The object and intent of this action is to enable Plaintiff, Sui Juris, [name of Plaintiff], to secure sufficient surety for injuries and for restitution and recovery of Money damages claimed against the above-named Defendants/Respondents and to secure and exercise Plaintiff's Rights, Privileges, Immunities, Liberties, and Duties as expressly declared by the Declaration of Independence and secured by the Ordained Constitution for the Union of several Republican States of the United States of America. The particular property described in the attachment hereto styled "Property Description," and all property of Plaintiff in possession of Defendant, or any of them, is and will be subject to attachment and execution to satisfy judgment[s] in these Case "At Common Law."
That date of recording and service of this instrument will be "Prima Facie" evidence of the commencement of an action "At Common Law." The neglect, refusal, or failure of the sheriff to convene a Common Law Court within 90 days of date of filing of this instrument will be deemed to be prima facie evidence of an waiver of all defendant(s) rights to the below described property:
All properties real and personal known and as yet to be known now and in the future which are or are to be properties, wherever situated, of ALL defendants, individually, and in their official capacities.
A Court of Common Law (12 good men and true) is called to convene pursuant to order of the elected sheriff under Amendment VII of the Bill of Rights, of the United States Constitution, sine qua non of the Judicial system extant in the United States of America. Such Common Law Court forbids the presence, participation, or presiding of any judge or lawyer or practitioner of equity law.
TO: ALL Banks, Credit Unions, Savings & Loan Associations, Individuals, Associations, Corporations, Partnerships, Trust Organizations, Estates, et cetera, Public or Private, foreign, alien or domestic, in or out of the county of Los Angeles, State of California, or in any of the respective several States of the Union of the United States of America, or operating therein with and/or under permission, license, certificate, employers, trustees, fiduciaries, representatives, receivers, associates, delegates, officers, employees, servants, slaves and/or agents of said Defendants
NOTICE
NOTICE IS HEREBY GIVEN that the defendant[s] has/have one or more of the following assets or valuable properties, and are and have become a part of and subject to his Common Law Lien, to wit:
(x) Checking Account(s)
(x) Savings Account(s)
(x) Time Deposit(s)
(x) Safety Deposit(s)
(x) Cash
(x) Future Market(s)
(x) Bonds
(x) Stocks
(x) Platinum
(x) Mutual Funds
(x) Remuneration
(x) Gold
(x) Salaries
(x) Certificate(s) of Deposit
(x) Silver
(x) Wages
(x) Pension(s)
(x) Royalties
(x) Commission(s)
(x) Jewels
(x) ALL movable and/or immovable objects, being mechanical and/or electrical, in the
possession, custody, and/or control of the above-named Defendant(s)
(x) ALL Lands, Real Estate, appurtenances thereto, and Any and All Right, Title and/or
Interest therein, including but not limited to ALL Water, Timber, Gas, Oil, and/or Mineral
Rights and Interest, of whatever kind or nature whatever
(x) All property of Plaintiff, real or personal, tangible of intangible, within the
possession or control of Defendant(s);
DEMAND
DEMAND IS HEREBY MADE UPON YOU, under "At Law" penalties of the Common Law and/or Title 18 United States Code to immediately attach and secure the aforementioned and described assets and/or property of the Defendants, and not to attempt to remove, modify, alter, circumvent, evade, negate, and/or tamper with this "At Law" Lien in any manner. You are Notified to take and hold the above described assets as security and/or surety for the Plaintiff/Demandant in the above entitled Case "At Law." You are not to transfer, sell, convey or in any manner encumber any of the said properties, or rights to properties, until the issues are resolved by default of the Defendant[s]/Respondent[s] and/or proper adjudication of all issues in a properly set Court of competent Constitutional Jurisdiction, Power, and Authority under Article III, Section 1 and 2, and Article Amendment VII.
The date of filing and service of this instrument will be "Prima Facie" evidence of the exercise of Plaintiff/Demandant's duty to execute the Law, and secured Right to Distributive and Commutative Justice, and his superior claims upon, in and over the Right(s), Title(s), and/or Interest(s) to and/or in said properties and any and all rights pertaining thereto, and further, and admission of guilt and confession of judgment, and a "Waiver" of the above-named Defendant(s) to any and all "At Law" or "Equitable" rights to the same property, until judgment is tendered to Plaintiff/Demandant At Law, in Gold and/or Silver coin, IN FULL, plus interest and costs of prosecution. Plaintiff/Demandant claims from the Defendant(s)/Respondent(s) for the trespass and damages incurred by action[s] of Defendant[s]s upon his Rights, pursuant to Plaintiff's ACTION IN TRESPASS and SPECIAL ASSUMPSIT under Case No.__________________
CAVEAT
WHOEVER does, conspires to, or attempts to remove, modify, alter, circumvent, evade, negate, and/or tamper with the Common Law Lien in the form of a Writ of Attachment without the express, written consent of the Plaintiff/Demandant's peers, thereby excluding all members, subjects, citizens and/or non-sui juris "persons" of the Defacto Democracy Foreign States or Districts, SHALL BE [pursuant to Brailsford v. Georgia, 1 L.Ed 438, 3 Dal (3 U.S.) 1], deemed criminals and/or felons [18 U.S.C.S. 2,3] and SHALL BE subject to arrest, prosecution, trial, judgment and punishment according to Law, in a Court "In/At Law," pursuant to the Ordained Constitution of the Union of States of the United States of America at Article III, Sections 2 and 3, Article VI, Clause 2, and Articles Amendment I, V, VII, IX, and X, and all laws made in pursuance thereof, including, but not limited to, 18 U.S.C.S. 219, 241, 242, 402, 645, 951, 1001, 1018, 1503, and/or 2381, 2384, 2385, and any other applicable Laws pertaining thereto. As stated by the Seventh Amendment to the Constitution of the United States of America, the verdict of the above said Common Law Jury cannot be re-examined by any Court or the United States except according to the rules of the Common Law; see Baltimore & C. Line v. Redman, 295 U.S. 654, 657 (1935).
Pursuant to Hafer v. Melo, 112 S.Ct. 358, No 90-681, Nov. 1991, U.S. Supreme Court, any judicial action that violates the constitutional rights of individuals may be a cause of action in civil litigation against those performing said acts, without any form of immunity, and State officials sued in their individual capacities are "persons" subject to suits for damages under Title 42, USC 1983 notwithstanding Amendment XI to the Constitution of the United States of America, which does not bar such suits at Common Law.
Any official who attempts to modify of remove this Common Law Lien is fully liable for damages pursuant to mandatory rulings of the U.S. Supreme Court in Butz v. Economu, 478 U.S., 478, 98 S.Ct. 2894; Bell v. Hood, 327 U.S. 678; Belknap v. Schild,161 U.S. 10; U.S. v. Lee, 106 U.S. 196; Bivens v. 6 Unknown Agents, 400 U.S. 388.
Public employees that attempt to modify, circumvent or negate this Common Law Lien shall be deemed Common Law outlaws and felons or may be prosecuted under Title 42, U.S.C. § 1986.
MEMORANDUM OF LAW
The Common Law is rooted in the Constitution of the United States and may not be uprooted by the whims of government. Common Law Liens/Writs of Attachment are a Common Law Remedy being an auxiliary attachment, essentially denoting a proceeding according to the course of Common Law [Chelentis v. Luckenbach Steamship Co., 62 L.Ed 1171]. The Common Law Lien Supersedes mortgages and equitable liens [Drummon Carriage v. Mills, 71 N.W. 99; Hewitt v. Williams , 17 So. 269; Carr v. Dail, 19 S.E. 235; McMaham v. Ludin, 58 N.W. 827], and may be satisfied only when sufficient Tender in payment of debt and/or sufficient property is taken in lieu of the monetary value and thereby fully satisfy the judgment creditor's remedy and extinguish the Debt. The ruling of the United States Supreme Court in Rich v. Braxton, 39 L.Ed. 1022, 158 U.S. 375, specifically denied the power or authority of a judge to invoke Equity Jurisdiction and procedures to remove Common Law Liens or similar "Clouds of Title," even if a preponderance of evidence displays the lien to be void or voidable. The Common Law Jury being the trier of the facts, and not a Commissioner/Magistrate or Chancellor in Equity, and the usurpation and/or abrogation of the providence of the Jury and the Right of the litigants MAY NOT BE ASSUMED even if the preponderance of evidence displays the lien to be void or voidable. The Courts of Equity still may not proceed, or enter judgment thereon until the moving party comes before the court with "Clean Hands," based upon the "Clean Hands Doctrine" and "Power of Estoppel" [West v. Washington, App. Div. 460, 138 N.Y. Supp. 230] and should it appear from the Pleadings that the acts of the party evoking Equity Jurisdiction have been unconscionable, oppressive, iniquitous, or based upon omissions or mistake in agreement, misrepresentation, concealment, or any unfairness, will stay the arm of the court, and cause the case and controversy and Party claiming some benefit from such acts to be turned over to a Court "At Law" of prosecution, trial, judgment, and punishment according to Law. [Pope Mfg. Co. v. Gormully, 36 L.Ed. 426, 144 U.S. 414]. It is further established that judges may be enjoined from interfering with a Citizen's rights [Bramlett v. Peterson, 307 F.Supp. 1049; Pierson v. Ray, 18 L.Ed.2d 288, 386 U.S. 547], and includes individuals wrongfully exercising the vested Powers and Authority of the Office of commissioner, magistrate, and/or judge who commit unlawful acts under color of office. [Duke v. State of Texas, 327 F.Supp. 12189; Yates v. Village of Hoffman Estates Illinois, 209 F.Supp. 757; Vickery v. Dunivan, 279 P.2d 853 (1955); 18 U.S.C.S. 241, 242, 645, 912, and 1001] (Also see: Constitution for the United States of America, Preamble, Article I, Section 8, Clause 9, Article IV, Section 2).
Plaintiff/Demandant is in fact a Citizen of the Republic of the State of California, inhabiting the County of__________________, within the Union of the several Republican States of the United States of America, and does hereby exercise the same status and capacity, and claims the above-described property, real and personal, belonging to the said Defendant[s], whether held in trust or other artificial fictitious character, whether in whole or in part, to secure all costs incurred by and accrued to the Plaintiff in obtaining proper adjudication and execution of the Law, in a properly set Judicial Power Court of Lawful, Constitutionally Enumerated, Specified, Competent Jurisdiction and Delegated Authority.
NO FURTHER NOTICE OR WARNING WILL BE AFFORDED YOU
Plaintiff, of legal age and sovereign capability to act in his behalf, has read the foregoing statements and brief, and states under penalty of perjury that the facts and law stated therein are true and correct to the best of his knowledge, information, and belief.
Attested this______ day of__________________, 199__.
[name of Plaintiff], Sui Juris
Plaintiff/Demandant
as a Sovereign American
in pro per
FURTHER SAYETH NAUGHT
[name of Plaintiff]
[Street address of Plaintiff]
[city], California
a Republic [zip]
[Plaintiff's phone #]
As a Sovereign American, in pro per
Plaintiff(s) for (WE THE PEOPLE)
SUPERIOR COURT OF COMMON LAW PLEADINGS
[street and city address of court], California, in
and for the REPUBLIC OF THE state of California,
County of_______________, s/REPUBLIC OF California
WE THE PEOPLE OF THE ) CASE NO.
UNITED STATES OF AMERICA )
BY [name of plaintiff] )
PLAINTIFF(S) ) Notice of Written Interrogatories
) and
v. ) Notice to produce documents
)
[name of Defendants with their )
official capacities] )
)
John Does x through 4999 )
)
All Defendants in )
their individual capacities )
)
DEFENDANT(S) )
)
PLEASE TAKE NOTICE that the Plaintiff, [name of plaintiff], requests the following interrogatories be answered and copies of documents produced and mailed or delivered to the Plaintiff's address at: [Plaintiff's address]. This request is made pursuant to discovery rights under Federal and State Statutes. Thank you for your cooperation.
DATE:___________________
X:_______________________
Interrogatories
Notice to Produce Documents
Citizens For the Bill of Rights, PO Box 646, Falls Church, VA 22040. (703) 204-1136. $25/year.
Criminal Justice Policy Foundation, 2000 L Street NW, Suite 702, Washington, DC 20036. (202) 835-9075. $90/year.
Common Law Education Application and Research, c/o 211 S. State College #130, Anaheim, Calif. 92806. Allen Mathews and Rich Forest - consult them for assistance in applying the methods suggested in this manual. (714) 635-4109. Best time to call: after 8 p.m.
Drug Policy Foundation, 4801 Massachusetts Avenue, NW, Suite 400, Washington, DC 20016. (202) 895-1634. $35/year.
Families Against Mandatory Minimums, 1001 Pennsylvania Avenue, NW, Suite 200 South, Washington, DC 20004. (202) 457-5790. $35/year.
FEAR (Forfeiture Endangers American Rights), PO Box 513, Franklin, NJ 07416. (908) 873-1251. $35/year.
ISIL (International Society for Individual Liberty), 1800 Market Street, San Francisco, CA 94102. (415) 864-0952. $20/year.
NORML (National Organization for the Reform of Marijuana Laws), 1636-R Street NW, Washington, DC 20009 (2020 483-5500. Dues $25/year.
THE RIGHT WAY ... L.A.W. - consult them for assistance in applying the methods suggested in this manual - see Build Freedom Report #LAW01 - The Right Way ... L.A.W.
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