Instead of entering and searching the home, though, the police brought in a SWAT team, surrounding the building. “[P]olice repeatedly exceeded the authority Ms. West had given them,” a lawsuit she filed complains, “breaking windows, crashing through ceilings, and riddling the home with holes from shooting canisters of tear gas, destroying most of Ms. West and her children’s personal belongings.”
The “standoff” lasted ten hours. But it wasn’t really a standoff. The only mammal in the home larger than a mouse was West’s dog.
Then the cops went on their merry way, leaving West homeless for two months, with three weeks in a hotel as her only compensation.
She wants more, including the costs of repairing and replacing her ruined personal property, damages for pain, suffering and emotional distress, and punitive damages for the assault on a home she gladly authorized a search of, not an attack on. She deserves all of that.
She isn’t getting it — yet, at least — due to a loophole baked into a vile judicial doctrine called “qualified immunity.”
The Ninth Circuit US Court of Appeals ruled that “no Supreme Court or Ninth Circuit case clearly established, as of August 2014, that Defendants exceeded the scope of consent.”
How’s that for circular reasoning? “You can only sue over X if someone else has previously successfully sued for X. ” And no one CAN have successfully sued for X, at least since the loophole was introduced in 1982, because they would have been turned away on the same grounds!
It should do so, and when it rules it should go beyond nixing the “clearly established” loophole and do away with the doctrine of “qualified immunity” entirely.
42 US Code § 1983 provides that “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws” may be sued for damages.
Not just if someone has successfully sued on the same grounds before.
And not just if a “reasonable person” would have known better.
Government employees are supposed to know their jobs, including the limits on their authority. If they don’t, they shouldn’t be given guns and badges, let alone protection from liability when they exceed those limits.
“Qualified immunity” is the opposite of “equality under the law.”
On November 29, FBI agents arrested hacker and cryptocurrency developer Virgil Griffith. His alleged crime: Talking.
The FBI alleges that Griffith “participated in discussions regarding using cryptocurrency technologies to evade sanctions and launder money.”
Griffith, a US citizen who lives in Singapore, gave a talk at conference on blockchain technology in April. Because that conference took place in North Korea, the US government deems him guilty of violating US sanctions on Kim Jong-un’s regime.
But last time I checked, the First Amendment protected Virgil Griffith’s right to speak, without exceptions regarding where or to whom.
And last time I checked, the US Department of Justice’s jurisdiction didn’t encompass Singapore (where Griffith lives), China (which Griffith traveled through), or North Korea (where Griffith spoke). The charges against him include traveling, while outside US jurisdiction, to places the US government doesn’t like.
In what universe is it the US government’s business where an individual travels to or what that individual says while he’s there, inside or outside the US itself? Certainly not any kind of universe in which America remains a free society.
What kind of state arrests people for going where they please and saying what they choose without that state’s permission? A police state.
Griffith’s arrest is wholly illegal under the US Constitution and wholly unacceptable to anyone who holds freedom as a cardinal value.
Virgil Griffith is just the latest political prisoner of the US government to come to public notice.
The US government imprisoned US Army intelligence analyst Chelsea Manning, journalist Barrett Brown, and others for telling us the truth about that government’s conduct, and would love to do the same to Julian Assange, Edward Snowden, and others for the same reason.
The US government imprisoned Ross Ulbricht for running a web site on which people bought and sold things that government didn’t want them to buy and sell.
The US government has held, and continues to hold, too many political prisoners to name in a single column.
The US government increasingly attempts to dictate where all of us may go, and what we may say while there, on pain of arrest and imprisonment.
That’s not right. That’s not freedom. That’s not America.
Virgil Griffith and the others I mention aren’t the criminals — their persecutors are. At some point, we must bring them to justice if human freedom is to survive. Until then, resist much, obey little.
In July of 2014, 18-year-old Conrad Roy killed himself in Fairhaven, Massachusetts by pumping carbon monoxide into the cab of his truck. In a bench trial, a judge convicted Roy’s 17-year-old girlfriend, Michelle Carter, of involuntary manslaughter and sentenced her to 2 1/2 years in prison.
In May of 2019, 22-year-old Alexander Urtula killed himself in Boston, Massachusetts by jumping from the top of a parking garage. His 21-year-old girlfriend, Inyoung You, has likewise been charged with involuntary manslaughter.
In both cases, the charges hinge on the content of text messages in which the women encouraged, even “ordered,” the men to commit suicide.
You is a South Korean national who has since returned home. The treaty governing extradition between the US and South Korea requires that the charge involved “be recognized as a crime in both jurisdictions,” so unless text messaging is illegal in South Korea, You may avoid playing her part in yet another re-enactment of the Salem witch trials of 1692 and 1693.
Text messaging isn’t manslaughter, any more than it’s rape, robbery, or driving 60 miles per hour in a 50 mile per hour zone. Nor is possession of a doll or a mole or birthmark “witchcraft” as fantasized in 17th century Puritan New England.
Hanging 19 men and women for witchcraft, and crushing another man to death for refusing to plead to charges of witchcraft, didn’t bring an end to imagined “molestations from the invisible world.” It merely sated an outbreak of mass hysteria.
Imprisoning Michelle Carter or Inyoung You for sending text messages may sate the desire of a few families for retribution. It may advance the political careers of a few grandstanding prosecutors.
It won’t bring back Conrad Roy or Alexander Urtula, nor will it erase the irrefutable truth: These two adults knowingly and intentionally took their own lives.
Are Michelle Carter and Inyoung You “bad people?” Maybe they are.
Are they (or at least were they) controlling and psychologically abusive? It seems likely, and their relationships with Roy and Urtula were obviously mentally and emotionally unhealthy on both sides.
Not everyone who’s broken can be fixed before something awful occurs. Sometimes horrible things happen, and we’re left looking for answers as to why, and for ways to prevent the next such tragedy.
Imprisoning people for text messaging is not one of the right answers. It merely compounds tragedy with error, with evil, and with comforting lies, at the expense of additional victims.
The USA PATRIOT Act provides a textbook example of how the United States federal government expands its power. An emergency happens, legitimate or otherwise. The media, playing its dutiful role as goad for greater government oversight, demands “something must be done.” Government power is massively expanded, with little regard for whether or not what is being done is efficacious, to say nothing of the overall impact on our nation’s civil liberties.
No goals are posted, because if targets are hit, this would necessitate the ending or scaling back of the program. Instead, the program becomes normalized. There are no questions asked about whether the program is accomplishing what it set out to do. It is now simply a part of American life and there is no going back.
The American public largely accepts the USA PATRIOT Act as a part of civic life as immutable, perhaps even more so than the Bill of Rights. However, this act – passed in the dead of night, with little to no oversight, in a panic after the biggest attack on American soil since Pearl Harbor – is not only novel, it is also fundamentally opposed to virtually every principle on which the United States of America was founded. It might not be going anywhere anytime soon, but patriots, liberty lovers and defenders of Constitutional government should nonetheless familiarize themselves with the onerous provisions of this law, which is nothing short of a full-throttle attack on the American republic.
What’s Even in the USA PATRIOT Act?
What is in the USA PATRIOT Act? In the Michael Moore film Fahrenheit 9/11, then Rep. John Conyers cracked wise about how no one had actually read the Act and how this was in fact par for the course with America’s laws. Thus, before delving into the deeper issues surrounding the PATRIOT Act, it is worth discussing what the Act actually says. Here’s a brief look at the 10 Titles in the PATRIOT Act:
Title I: Enhancing Domestic Security Against Terrorism: This provision dramatically expands the powers of the President, the military and the intelligence community whenever the specter of “terrorism” is invoked. Bizarrely, it contains a provision condemining discrimination against Arabs, Muslims and South Asians, which seems to have very little to do with protecting Americans from terrorism.
Title II: Enhanced Surveillance Procedures: Title II contains the meat of the Act with regard to massive, industrial-scale surveillance on the American public. Beyond the simple spying on Americans and their communications, Title II increases the ability of federal intelligence agencies to share your private communications with one another.
Title III: International Money Laundering Abatement and Financial Anti-Terrorism Act: Not simply a section of the USA PATRIOT Act, Title III is an Act of Congress in its own right. You might have noticed how much more difficult it is to open a bank account or send a wire transfer after 9/11. You can blame this provision, which shredded banking privacy rights in the United States.
Title IV: Protecting the Border: Other than expanding the number of federal employees (of course), the provision of the USA PATRIOT Act charged with protecting America’s borders does little other than point toward paths for future action and study. It is worth noting that the weakest provision of the Act is the only one explicitly authorized by the Constitution — protecting the border.
Title V: Removing Obstacles to Investigating Terrorism: Title V authorizes bounties for the apprehension of alleged terrorists, broadens government power to conduct DNA analysis, allows for greater data sharing between law enforcement agencies and, perhaps most disturbingly, requires private telecommunication carriers to comply with government requests for electronic communication records whenever requested by the FBI. It also expands the power of the Secret Service to investigate computer fraud.
Title VI: Providing for Victims of Terrorism, Public Safety Officers and Their Families: Perhaps the most innocuous portion of the USA PATRIOT Act, Title VI provides for a victims’ fund for victims of terrorism and their families.
Title VII: Increased Information Sharing for Critical Infrastructure Protection: The subtitle of this section of the Act is a rather wordy way of saying that the United States federal government is allowing for law enforcement agencies to share information across jurisdictional boundaries in an easier fashion than was previously legal. To that end, the Bureau of Justice Assistance was given a $50,000,000 budget for 2002 and a whopping $100,000,000 budget for fiscal year 2003.
Title VIII:Strengthening the Criminal Laws Against Terrorism: Title VIII is where the rubber meets the road: What exactly is terrorism, according to the federal government? Unfortunately, this Title does little to clarify what terrorism is, instead focusing on declaring a number of actions (such as attacks on transit) as “terrorism,” regardless of intent.
Title IX: Improved Intelligence: The section subtitled “improved intelligence” largely expands the powers and responsibilities of the Director of Central Intelligence.
Title X: Miscellaneous: When the federal government titles a segment of a law “miscellaneous,” you know it’s going to include everything and the kitchen sink. And so it does: The definition of electronic surveillance, additional funds for the DEA in South and Central Asia, research on biometric scanning systems, a limitation on hazmat licensure and infrastructure protections are all addressed in Title X, which is a catchall for everything the federal government forgot to address in the first nine sections of the law.
Most of the provisions of the USA PATRIOT Act were set to sunset four years after the bill was passed into law. However, the law was extended first by President George W. Bush and then by President Barack H. Obama. The latter is particularly scandalous given that, at least in part, a rejection of the surveillance culture that permeated the Bush Administration was responsible for the election of Obama in 2008.
While I’ve spoken about this many times, it keeps coming up so I figured I would do a formal analysis. I’m well-aware this will have no impact on those who use this tactic to avoid discussion, such as lawyers and bureaucrats; this is for those who may be victims of this pernicious method of shouting down a valid argument. Ironically, as will be shown, it’s those screeching “frivolous” that are usually raising a truly frivolous argument. Yelling frivolous is a distraction technique, don’t be fooled by it.
Anyone who has ever challenged the legitimacy of government and the application of their sacred writ, called “laws,” will be familiar with this tactic. When the accuser admittedly has no evidence, they just start shouting “frivolous argument” as if that magically creates facts to support their claim.
What is a frivolous argument? There are usually two constants, it’s not just an argument lacking in merit or arbitrarily denied by a traffic court judge: “An appeal [argument] is not frivolous just because it has no merit” Applied Business Software, Inc. v. Pacific Mortgage Exchange, Inc., 164 Cal. App. 4th 1108, it must also be brought in bad faith:
“frivolous. So clearly and palpably bad and insufficient as to require no argument or illustration to show the character as indicative of bad faith upon a bare inspection…Strong v Sproul, 53 NY 497, 499.” Ballentine’s Law Dictionary, 3rd Ed., page 503.
Black’s Law Dictionary adds to this (also quoting Strong v Sproul):
“…where it does not controvert the material points of the opposite pleading, and is presumably interposed for mere purposes of delay or to embarrass the opponent…” 4th Ed, page 796.
A frivolous argument has three elements:
doesn’t controvert the material points; and
is brought in bad faith.
Now let’s look at an argument I wrote that’s been labeled “frivolous” by an administrative law judge in California and see if it meets this criteria.
“…the legal claims made against me have no factual support, the FTB knows this, and is proceeding against me anyway.” The legal claim referenced is the claim the laws apply because the target of the assessment is physically in California or has a California source of money. The FTB argues their laws created an obligation, it’s a foundational claim.
We know this because several agents told us, this includes counsel for the FTB. When asked for the facts they relied on, they admittedly had nothing, counsel admitted this was an assumption (video below). Those are the facts my argument is based on, the argument follows directly from the facts.
1. Does the claim have merit? Yes; the FTB and IRS operate under the same presumption, they admit it; they claim their laws apply, gives them jurisdiction and creates obligations.
My argument is based on their admissions they don’t have evidence and don’t need evidence to support their claim. So with the FTB claim, where they admit they have no evidence and the foundation of their assessment is an assumption, there is solid factual support. Therefore, the argument is valid, it has merit because the facts support it.
The FTB and IRS are required to have evidence to support their assessments; lacking a foundational basis is referred to as a “naked assessment” to wit:
“The determination of tax due then may be one “without rational foundation and excessive,” and not properly subject to the usual rule with respect to the burden of proof in tax cases. Helvering v. Taylor, 293 US 507.” United States v. Janis, 428 U.S. 433.
The challenge is based on this principle, while my challenge is not spelled out in this or other cases I’m aware of, the legal principle is what’s relevant. The FTB’s assessment is “without rational foundation” by their own admissions.
The argument has merit because it is based on a sound legal principle, supported by the agents’ own admissions.
2. Does it “controvert the material points” made by the FTB or IRS? Yes; by their own admission they operate under the presumption the laws apply because you’re physically in California or have a California source of money; and by their own admission they have no evidence, it’s an assumption. It’s logical and consistent with the facts.
3. Is it brought in bad faith? No; it’s based on facts, and a sound legal principle that “controverts the material points” raised by the FTB or IRS. It’s a logically, legally, and factually consistent argument.
None of the three elements of a “frivolous argument” are present proving the argument is not frivolous; it may be wrong, but it’s not frivolous. It’s possible the facts as alleged are not true, but that is what a hearing is for, to determine if the alleged facts are true. In the above video you can hear the agent admit the assessment’s foundation, the applicability of the laws, is an assumption. An assumption is not a “rational foundation.”
If it’s obvious it’s not a frivolous argument, then why do tax agents and their lawyers (with and without black robes) insist it is and threaten thousands in sanctions? Because they have a vested interest in the system taking property by force (taxation). They are the ones raising an argument that has no rational foundation and is brought in bad faith. I’ve had tax agents claim they don’t need evidence. That’s frivolous, not pointing out their claim lacks factual support.
What they are really saying is just challenging their foundational claim is somehow a frivolous argument or calling out their frivolous argument is itself frivolous. That is proof of bad faith.
What they do is strawman the actual position claiming:
“Appellant’s inquiry is entirely nonsensical, and while we are unsure of the exact import of this statement, it appears to be based on the meritless contention that California does not have jurisdiction to impose a personal income tax on appellant.”
No, the contention is: the FTB admitted their foundational claim is the constitution applies because there was California source of money. When asked for evidence, they admittedly had none and agreed it was an assumption. We have never made the above claim, this is done to justify ignoring the actual issue. They know what the actual issue is because the “entirely nonsensical” argument is cited just before the above quote:
“Moreover, in her briefs, appellant states that she had previously contacted FTB staff and [FTB counsel] regarding the proposed assessments at issue, and that these individuals failed to provide evidence that the “constitution” applied to her.”
First, the claim is not “entirely nonsensical” it’s based on the FTB’s own admissions and used as an insult, they also use “legalistic gibberish.” What this administrative law judge really thinks is frivolous, is challenging the FTB’s claim the laws apply to appellant. Questioning the FTB’s legal claim is the frivolous argument to him. This cow is so sacred to this bureaucrat he’s threatening a five-thousand dollar sanction for just questioning it and pointing out it’s admittedly an assumption. Like the pope admitting he just assumes the gods are real and anyone quoting him is raising a frivolous argument. By the way, this is the same bureaucrat allowing the FTB to lie with impunity in their pleadings. No bias there I guess.
Some claim the courts have already ruled the argument frivolous for decades as if that changes anything, it doesn’t. Because just as this ALJ is wrong, so are the courts for the reasons above.
It must also be noted they are not addressing this actual argument in those cases, just like the ALJ does here. If you look at the cases, the frivolous arguments are all arguments of legal interpretation, not issues of fact. This ALJ cites Appeals of Dauberger (82- SBE-082) 1982, as support; the type of arguments included are: wages not income without meaning of statute, not a taxpayer within meaning of statute, federal reserve notes are not legal tender, and the Fifth Amendment prohibits the requirement to file a tax return. Not a single issue of fact cited as a frivolous argument.
If it’s truly frivolous to challenge this legal claim, then that’s proof the system is rigged. Irrefutable presumptions are unfair and violate due process because they cannot be challenged, there is no defense, even against an assumption, Vlandis v. Kline, 412 US 441. Yes, this is about legislative presumptions, but the principle of fairness is what is relevant because due process requires notice and opportunity to defend at a meaningful hearing, Goldberg v Kelly, 397 US 254 (1970).
It’s not a so-called “frivolous argument” to point out someone’s foundational claim is admittedly an assumption, it’s a statement of fact.
So when they start chanting frivolous, call them on it, ask them what makes an argument frivolous and not just wrong. Ask them to point out what part of the argument is false; because the underlying facts are not and since the conclusion is drawn directly from the facts, the conclusion is accurate.
The argument the FTB or IRS has failed to support their claim the constitution applies, has merit because 1) it is based on their own admissions, 2) it controverts material points because they admit to not having evidence, and 3) because it’s based on a sound legal principle and the FTB’s own admissions, there is no bad faith.
Regardless of the chants from lawyers and bureaucrats, the argument is not frivolous.
If at first you don’t succeed, spread some money around. The Financial Times reports that the US State Department is offering cash bribes to captains of Iranian ships if they sail those ships into ports where the US government can seize them.
The offers are funded from a “Rewards for Justice” program authorizing payouts of up to $15 million for “counter-terrorism” purposes. It’s not about counter-terrorism, though. It’s about doubling down on US President Donald Trump’s decision to violate the Joint Comprehensive Plan of Action, usually called the “Iran Nuclear Deal.”
The other parties to the deal — especially France, the UK, and Germany — don’t want to let the deal go, but also don’t want to enrage Trump by violating the unilateral sanctions he’s imposed on Iran. The Iranians, on the other hand, have made it clear that unless those other countries find ways to deliver meaningful sanctions relief, they’re abandoning the deal too. They’ve started taking concrete steps in that direction.
On July 4 — Independence Day in the United States — members of the United Kingdom’s Royal Marines boarded an Iranian oil tanker, the Grace 1, off the coast of Gibraltar. They seized ship, crew, and cargo in an act of open piracy.
The pretext for the seizure was that selling oil to Syria violates European Union sanctions. But neither Iran nor Syria are EU member states, and the tanker was taken in international “transit passage” waters. That’s like giving a speeding ticket to a driver in Hungary for violating Kazakhstan’s speed limits.
Spain’s foreign minister, Josep Borrell, plausibly asserted that the seizure was requested by the US government. The ship was released after Iran agreed that the oil would not go to Syria (its whereabouts and destination remain unknown as of this writing).
In the meantime, a US court had issued a seizure warrant — for an Iranian vessel, carrying Iranian oil, to a non-US destination, clearly outside any reasonable definition of US jurisdiction. And the Iranians had hijacked a British-flagged tanker in the Strait of Hormuz in reprisal for the taking of Grace 1.
So now the US State Department is reduced to simple bribery in its attempts to clean up after Trump’s 2016 campaign promise to get the US out of the “nuclear deal.”
Under the deal, the Iranians went beyond their obligations under the Non-Proliferation Treaty to “end” a nuclear weapons program which the US intelligence community didn’t even believe existed. All they got out of it was some relief from sanctions that should never have been imposed, and the return of some money stolen by the US government decades ago. All the US got out of it was an empty propaganda victory.
But electoral politics required Trump to throw even that tiny trophy away. He had to either promise foreign policy belligerence SOMEWHERE or risk establishment mockery as a peacenik. Enter the Israeli lobby and Sheldon Adelson’s millions. Iran drew the short straw.
So did we. This is war in all but name and only likely to escalate as Election 2020 draws nigh.