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Friday, April 24, 2015

Legal Schnauzer initiates the battle to vacate $3.5-million default judgment in Jessica Garrison lawsuit


Legal Schnauzer blogger Roger Shuler
A motion to vacate a $3.5-million default judgment was filed on my behalf yesterday in the defamation lawsuit of Alabama GOP operative Jessica Medeiros Garrison, former campaign manager for Attorney General Luther Strange.

Prattville attorney Davy Hay filed the motion in Jefferson County Circuit Court yesterday afternoon, and al.com's Kent Faulk reported on it this morning in an article titled "Blogger Roger Shuler fighting $3.5-million judgment."

The motion outlines the extraordinary circumstances that prevented my continued appearance in the Garrison case, leading to the default judgment. As has been widely reported in the national and international press, law-enforcement officers beat me up inside my own home because of alleged contempt of court in another defamation case brought by two other GOP operatives, attorney Rob Riley and lobbyist Liberty Duke.

Deputies showed no warrant, never said they had a warrant, and entered my property without stating their purpose for being there, meaning the "arrest" was unlawful and essentially amounted to a kidnapping. On top of that, the preliminary injunction I supposedly violated was unconstitutional under more than 200 years of First Amendment law, as outlined in briefs from the ACLU and The Reporters Committee for Freedom of the Press.

I wound up spending five months in the Shelby County Jail, becoming the only journalist in the western hemisphere to be incarcerated in 2013. I also am the only U.S. journalist since 1900 to be jailed because of an unlawful preliminary injunction in a purely civil matter.

The motion states that after my release from jail on March 26, 2014, my wife Carol and I immediately faced foreclosure on the home we had lived in for 25 years. The psychological trauma of dealing with jail and possible homelessness caused me to spend six days for evaluation in a hospital psychiatric unit, where I was diagnosed with post-traumatic stress disorder (PTSD).

Carol and I continue to live under circumstances where we fear for our lives and safety, given that both of us were subjected in Alabama to what amounts to court-sanctioned kidnappings. (Officers also tried to arrest Carol, in large part because Riley and Duke unlawfully named her as a defendant in a case over issues that did not involve her.)

Because of Carol's ability to avoid capture, she got out word about what had happened to me--and that led to widespread coverage of my arrest, including an article in The New York Times. Riley and Duke had asked for the case file to be sealed, so if deputies had kidnapped Carol too, we both probably would have just disappeared--with the public having no way of knowing what happened to us.

Would we have been killed or permanently detained? Would our cats have been murdered or forced to starve, with no one to care for them? We ask ourselves those and many other questions.

Attorney Hay outlines the circumstances we faced in the Motion to Vacate Default Judgment. The full motion can be read at the end of this post:

* "Mr. Shuler and his wife lost their home and were facing the very real possibility of being homeless. This being such a pressing and immediate issue, all other concerns had to be given lower priority.

* "Mr. Shuler had just spent five (5) months in jail, which began with being beaten by law enforcement officials in his own home and wrongfully detained, in violation of his constitutional rights".

* "Mr. Shuler and his wife experienced excessive psychological trauma, resulting in the defendant spending six (6) days in a psychiatric unit, in direct relation to these events, and was diagnosed with Post Traumatic Stress Disorder."

* "Mr. Shuler has a good-faith belief that his very life has been in actual peril as a result of his reporting. Accordingly, he has been and continues to be highly reluctant to submit to the authority of the state after what he perceives to be illegal attacks against his person, his family, and his rights as a citizen of the United States."

For the record, I feel the taking of our home amounts to a wrongful foreclosure under Alabama law. The elements of the tort are spelled out in a 2010 article from the Burr Forman law firm, titled "The Rising Tide of Wrongful Foreclosure Lawsuits." From the article:

Additionally, where a mortgage provides for a power of sale, under Alabama law, a wrongful foreclosure action lies whenever the power of sale is exercised "for a purpose other than to secure the debt owed by the mortgagor.."Reeves Cedarhurst Dev. Corp. v. First Am. Fed. Sav. and Loan Ass'n, 607 So. 2d 180, 182 (Ala. 1992). Such an improper purpose includes the mortgagee's goal of oppressing the mortgagor or furthering some interest of another. Johnson v. Shirley, 539 So. 2d 165, 168 (Ala. 1988).

Carol and I are convinced the foreclosure on our home was conducted for the improper purpose of turning our lives upside down and forcing us to move, with the goal of causing the demise of my reporting on this blog. We hope to show that in court.

Because of the forced moved, I stopped receiving notice of hearings in the Garrison lawsuit, and that led to the default judgment. As we already have shown, default judgments long have been disfavored in Alabama as a matter of law and public policy. That is clearly stated in a case styled Abernathy v. Green Tree Serving, (Ala. Civ. App., 2010):

We begin our analysis by pointing out what we have affirmatively acknowledged in many cases: default judgments are disfavored because "'such judgments preclude a trial on the merits.'" Stanfield v. Stanfield, 2 So. 3d 873, 876 (Ala. 2090488 Civ. App. 2008) (quoting Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So. 2d 600, 604 (Ala. 1988)).

In the motion to vacate, attorney Hay seeks leave to file a counterclaim on my behalf, states that I have a meritorious defense, and claims the $3.5-million figure was reached in part because of an improper analysis that Garrison is a "private person." In fact, Hay argues, Garrison is a "public figure" under the law, by virtue of her significant role in Strange's statewide campaign, plus her leadership role in the national Republican Attorneys General Association (RAGA). In essence, Hay writes, Garrison's lawsuit was designed to "bully the defendant (Shuler) into silence." From Kent Faulk's article at al.com:

Hay states in the motion that Shuler has a meritorious defense in the case, "and by virtue of evidence currently in his possession and that which can be obtained through exhaustive discovery, shall show that the case against him is frivolous and nothing more than an attempt by the plaintiff to unconstitutionally bully the defendant (Shuler) into silence."

Hay argues in the motion that Garrison is a public figure, based on her work on Strange's campaigns, her appointment as Chief Counsel and Deputy Attorney General of the state of Alabama in 2011, and her position as director of the Republican Attorneys General Association. If Garrison was to be considered a public figure, rather than a private citizen, it would raise the burden to that of proving actual malice, the motion states.


Thursday, April 23, 2015

Will youth minister Matt Pitt go to prison because political forces want him unlawfully convicted?


Matt Pitt (right) and attorney Nikki Bonner
(From WVTM)
(Update at 10:55 a.m. on 4/23/15 -- An Alabama jury this morning found youth evangelist Matt Pitt not guilty of impersonating a peace officer. It's heartening to know that sometimes justice does prevail, even in Alabama.)

Youth minister Matt Pitt's refusal to go along with powerful political and business interests in Alabama probably led to his prosecution on charges of impersonating a peace officer. Courtroom oddities at this week's trial in Jefferson County have heightened our concern that an innocent man might go to prison. It would not be the first time that has happened in Alabama--especially when someone has stood up to the state's conservative elites, as Matt Pitt has.

A jury is expected to reach a verdict today.

We reported last night that Pitt's legal troubles started not long after he refused a request for his ministry (The Basement) to endorse a slate of conservative political candidates. The troubles also started not long after Pitt declined to place his ministry's money with Bryant Bank, which is led by powerful University of Alabama trustee and football booster Paul Bryant Jr. Finally, Pitt seems to have made enemies because of his desire to build an inclusive ministry, one that crosses racial boundaries.

I don't claim to be an expert on Alabama case law regarding impersonation of a peace officer, but my research indicates Pitt never should have been prosecuted--either in the current Jefferson County case, or in an earlier one in Shelby County. He certainly should not be convicted, but given Alabama's toxic "justice" environment, I would not be surprised if that happens.

My understanding is that the alleged crime of impersonation usually requires some kind of affirmative or creative action that is designed to deceive the public into believing one is a member of law enforcement. For example, a person who creates or unlawfully obtains a badge or uniform, and then uses it to deceive the public, likely would be violating the law.

I've seen little or no sign that Pitt did that. The Jefferson County Sheriff's Office gave him an honorary badge as an apparent pat on the back for his work with The Basement. We haven't seen any indication that Pitt asked for the badge. It seems unclear if any member of the public ever was deceived into thinking Pitt actually was a law-enforcement officer. In fact, the Pitt defense team obtained an affidavit from witness Brad Lunsford, who stated that Pitt never acted in a way that made him think he was a police officer.

Judge Tommy Nail, who is presiding over the Jefferson County case, seemed to support my research based on this report Monday from al.com:

(Prosecutor Shawn) Allen described that in the Florida incident, Pitt laid out his honorary badge for the Walton County officer who pulled him over, in an attempt to get out of a speeding ticket. "Everybody knows it's an honorary badge," Nail said. "It doesn't carry any authority to do some act. Laying an honorary badge out, in my opinion, doesn't meet the elements of impersonation."

That hinted that Nail was going to hold the prosecution to the actual law; in fact, Nail all but shouted from the bench that Pitt was not guilty. But the judge's tone changed the next day. And that brings us to those courtroom oddities? Let's count them:

(1) Nail makes a radical change of course -- On Monday, the judge said he would not allow evidence of Pitt's previous encounters with law enforcement. That is in keeping with Alabama Rule of Evidence 404, which generally prohibits evidence of alleged prior wrongs. This is how al.com's Greg Garrison reported Nail's finding, which appears to be a correct statement of law:

Nail also ruled that he would not allow Pitt's previous encounters with law enforcement as evidence.

Allen said the prosecutors planned to show a pattern of behavior by Pitt. Nail said those incidents are not relevant to the Jefferson County incident.

"None of that's coming in, in my opinion," Nail said.

One day later, Nail took a 180-degree turn, as reported by WBRC, Fox 6, in Birmingham:

Matt Pitt's legal team lost ground on Tuesday after Judge Tommy Nail reversed his decision to keep evidence from a previous case out of this trial.

Pitt is currently on trial in Jefferson County after being charged with impersonating a peace officer in June 2013.

On Monday, Nail ruled that prosecutors couldn't enter evidence or testimony from a 2012 Shelby County case in which Pitt was also charged with impersonating an officer.

That changed Tuesday. Nail allowed a current and former Calera police officer to give testimony in that 2012 case. Pitt pleaded to a lesser charge in Shelby County. However, his bond was revoked and he did serve jail time in Shelby County because his Jefferson County charges violated the terms of his plea deal.

Nail said the only reason he allowed this testimony was to show Pitt's intent in the Jefferson County case.

What caused Nail to change his mind? We don't know, but it smells funny--and it greatly enhances the chance of a conviction. Nail was right the first time--those prior incidents are not relevant to the Jefferson County incident.

(2) What happened to Brad Lunsford? -- As noted above, eyewitness Brad Lunsford signed an affidavit stating that Pitt never did anything to make him think the evangelist was a police officer. But based on news reports, the defense never called Lunsford as a witness at trial? Why? I can't figure that one out.

(3) Why didn't Matt Pitt take the stand? -- It seems to be common practice for criminal-defense lawyers to keep their clients off the stand. I've seen that strategy backfire in numerous cases, especially in the prosecution of Don Siegelman and Richard Scrushy. Scrushy has admitted the strategy backfired. I'm concerned that it's going to happen here.

Matt Pitt is an articulate guy, and he is innocent. Those kinds of defendants need to take the stand, especially in a case the prosecution should not have brought in the first place.

I will take off my reporter's objective glasses for a moment and state that I hope Matt Pitt is found not guilty--and that's because justice demands it. Unfortunately, Alabama courtrooms all too often are the place where justice goes to die. I pray that will not be the case today.

Wednesday, April 22, 2015

Are dark, greedy political forces driving the dubious prosecution of Alabama youth minister Matt Pitt?


Matt Pitt at The Basement
An Alabama jury today is expected to reach a verdict in the criminal trial of youth evangelist Matt Pitt, who stands accused for a second time of impersonating a peace officer. Based on news reports, the trial has included a number of oddities that could lead an innocent man to be convicted. Perhaps of even greater importance, the dark story behind the Pitt prosecution has gone unreported to the general public.

What is that dark story? Pitt's troubles with law enforcement began when he refused to do the bidding of conservative political/corporate forces who wanted to use his ministry (The Basement) for their own purposes, sources tell Legal Schnauzer. Those forces allegedly include former Governor Bob Riley and University of Alabama trustee Paul Bryant Jr. Our sources say Pitt never would have been prosecuted if he had allowed his ministry to be used for the political and financial interests of others. They also say Pitt has made enemies from his desire to build a ministry that reaches across racial boundaries.

Full disclosure: I know Matt Pitt, and I like him. We were in the Shelby County Jail together for a time, and while we were not able to talk a lot, I was around Pitt enough to come away with a favorable impression. I found him to be a person of good will, with a good heart, a keen intellect, deep knowledge of The Bible, and a genuine interest in reaching young people who often fall away from organized religion. I also witnessed Pitt preach to small groups in jail and came away convinced that he is a talented communicator, with a gift that could be used to move a broken, conflicted society forward.

Based on comments left at al.com, quite a few people in the Birmingham area hold animosity toward Pitt--for reasons I can't quite grasp. I can only attribute the ill will to possible jealousy or fear that The Basement will cut into membership figures at established churches. It also might be due to Pitt's efforts to build an inclusive ministry, one that reaches people of all colors, I've lived in Alabama long enough to know that the notion of races mixing in a religious environment makes many people uncomfortable.

Also, Alabamians have a long history of trying to bring down those who might try to separate the state from its ugly past. Is Matt Pitt the kind of person who might strike fear in those who cling to the Alabama of yesterday? I suspect the answer is yes. The Basement is billed as "the fastest growing youth movement in the country." And it reaches way beyond Alabama; I've seen pictures of Pitt preaching from coast to coast--in Colorado, Ohio, California, Texas, Missouri, New York, and many other states.

Matt Pitt could be the next major, positive religious figure on the American scene, but Jefferson County prosecutors persist in pursuing him for a felony that he almost certainly did not commit--one that carries a punishment of up to 10 years in prison.

What led to Matt Pitt's legal problems? Our sources point to three key events:

(1) Political figures, apparently with ties to Riley and Bryant, encouraged Pitt to use The Basement to endorse a slate of white, conservative political candidates;

(2) Business figures encouraged Pitt to do the ministry's banking with Bryant Bank;

(3) Pitt and a few associates were invited to attend a University of Alabama football game and sit in Bryant's private box. During the game, a Bryant crony was heard to say, after looking out over the packed stadium, "Can you imagine this many people pay us to watch n-----s beat up on each other?"

Pitt rebuffed the first two entreaties and was so disgusted by No. 3 that he decided to have nothing to do with Paul Bryant Jr. or his bank.

Before long, Pitt was in trouble with the law because of an honorary sheriff's badge that he never asked for--Jefferson County Sheriff Mike Hale gave it to him.

Where does politics enter the picture? Bob Riley appointed Jefferson County District Attorney Brandon Falls, who apparently made the decision to prosecute Pitt. Mike Hale's legal counsel is Rob Riley, Bob Riley's son. In fact, Rob Riley made an appearance at the Pitt trial on Tuesday. Jefferson County Tax Collector J.T. Smallwood played a significant role in Pitt receiving the honorary badge, and Smallwood reportedly has close ties to Bryant.

What about those oddities connected to the trial? We will address those in a post tomorrow morning.

New U.S. Supreme Court ruling helps show that traffic stop leading to my incarceration was unconstitutional


A U.S. Supreme Court ruling yesterday adds to the body of law that shows my wife and I were subjected to an unlawful traffic stop in the Rob Riley/Liberty Duke lawsuit that led to my five-month incarceration. The new ruling also adds to the law showing I never was lawfully served with the Riley/Duke complaint, meaning the court had no jurisdiction over me--as I argued in a court filing prior to my arrest and during a hearing after my arrest.

In Rodriguez v. United States, SCOTUS found that a stop prolonged beyond the time for an officer to complete his traffic-based inquiries is "unlawful," especially where there is no reasonable suspicion of any criminal activity connected to the vehicle. The majority opinion, written by Ruth Bader Ginsburg, says even a brief extension of a stop, once a citation or warning is given and traffic-related documents are returned, runs afoul of the constitutional right to be free from unreasonable seizures.

That means Shelby County deputy Mike DeHart violated the Fourth Amendment when he prolonged a traffic stop at the North Shelby County Library in order to serve me with court papers in the Riley/Duke complaint. That means service was unlawful, and I lost five months of my freedom because of a ruling from a court that had no jurisdiction over me.

We recently received documents from the court file showing that DeHart admitted his traffic stop, on September 29, 2013, was a "pretext" stop--meaning the real reason he stopped me was to deliver the court papers and not because of any alleged traffic violation. That strongly suggests DeHart's "pretext" reason for stopping me--that I had rolled through a stop sign--is false. If that's the case, the traffic stop was unlawful from beginning to end, and the Shelby County Sheriff's Office has stepped in some serious constitutional doo-doo. (More on DeHart's admitted "pretext" stop in an upcoming post.)

The Rodriguez ruling does not change the law as it relates to our encounter with DeHart. It just affirms a legal precedent under slightly different facts than the high court has addressed before. In other words, DeHart's stop already was unlawful--it's even more unlawful as of yesterday.

As we stated in a post on October 16, 2013--just one week before my arrest--the law already was clear that prolonged traffic stops are illegal, in the absence of reasonable suspicion regarding criminal activity connected to the vehicle. Even DeHart never made the slightest hint that criminal activity was associated with our car. The following paragraph sums up the law as it stood before yesterday's Rodriguez opinion:

Ordinarily, when a citation or warning has been issued and all record checks have been completed and come back clean, the legitimate investigative purpose of the traffic stop is fulfilled. United States v. Simms, 385 F.3d 1347, 1353 (11th Cir., 2004)

What element did Rodriguez add to the equation? A Nebraska officer had prolonged a traffic stop of Dennys Rodriguez in order to walk a drug-sniffing dog around the car. Given that it was unclear whether the officer had reasonable suspicion of a crime, SCOTUS found that extension of the stop violated the Fourth Amendment.

Our encounter with DeHart did not involve a drug-sniffing dog or anything else remotely related to an alleged crime. But yesterday's Rodriguez ruling drives home a legal principle that already had been clear in Simms and numerous other cases. Here, in the words of Ruth Bader Ginsburg, is the fundamental finding in Rodriguez (citations omitted):

Authority for the seizure ends when tasks tied to the traffic infraction are—or reasonably should have been completed. The Fourth Amendment may tolerate certain unrelated investigations that do not lengthen the roadside detention . . . but a traffic stop “become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission” of issuing a warning ticket. . . .

The Government’s argument that an officer who completes all traffic-related tasks expeditiously should earn extra time to pursue an unrelated criminal investigation is unpersuasive, for a traffic stop “prolonged beyond” the time in fact needed for the officer to complete his traffic-based inquiries is “unlawful. . . . ” The critical question is not whether the dog sniff occurs before or after the officer issues a ticket, but whether conducting the sniff adds time to the stop.

In our case, the issue wasn't a dog sniff, but court papers--which DeHart handed me after giving me the traffic warning and returning my traffic-related documents. And his actions unquestionably added time to the stop. In the words of Ginsburg, DeHart's "authority for the seizure" ended the moment his traffic-related tasks were completed.

A trial judge in the Rodriquez case found that the dog sniff extended the stop by only "seven or eight minutes," and thus was a de minimis intrusion that is permissible by law. But the SCOTUS majority disagreed, saying an extension of any duration is unlawful, in the absence of reasonable suspicion regarding criminal activity. Wrote Ginsburg:

We granted certiorari to resolve a division among lower courts on the question whether police routinely may extend an otherwise-completed traffic stop, absent reasonable suspicion, in order to conduct a dog sniff. . . . Without additional reasonable suspicion, the officer must allow the seized person to depart once the purpose of the stop has concluded.

Even before yesterday's ruling, DeHart was required to let us depart once his traffic-related tasks were completed. Rodriguez drives home the fact that an extension of the stop, even a brief one, was unlawful.

Tuesday, April 21, 2015

Judge Claud Neilson earns dubious "award" for sending me to jail and trampling the First Amendment


The Alabama judge who unlawfully ordered my incarceration in a defamation case has been cited for committing one of the year's "more egregious or ridiculous affronts to free expression."

The Thomas Jefferson Center for the Protection of Free Expression, based at the University of Virginia, has been issuing "Jefferson Muzzles Awards" for 24 years to those who have wantonly trampled First Amendment rights.

Claud Neilson, a retired circuit judge the Alabama Supreme Court specially appointed to hear a lawsuit brought against me by Republican political figures Rob Riley and Liberty Duke, was among eight individuals or entities to receive "Muzzles Awards" for 2014-15.

Josh Wheeler, director of the Thomas Jefferson Center, says the "Muzzles" are designed to spotlight First Amendment violations that might not have made front pages around the world. From a center press release:

Josh Wheeler, director of the Thomas Jefferson Center, says people might be as surprised by what is not on the list this year as they are by what is. “At several points during the past year, the news was understandably dominated by coverage of the Charlie Hebdo murders in Paris, the cafĂ© shooting in Copenhagen, and the threats against theaters screening the movie The Interview. While the Thomas Jefferson Center stands united with those condemning violence as a response to speech, our mission has always been focused on meeting challenges to the rights and principles enshrined in the U.S. Constitution. This year, as always, the Jefferson Muzzles reflect that focus.

Wheeler also believes it is important for the Jefferson Muzzles to include lesser-known acts of censorship. “It challenges the assumption held by many that, because of the First Amendment, attempts at censorship are few and far between in this country. In fact, such acts occur every day. Our hope is that the Jefferson Muzzles help to dispel the complacency with which many view free speech issues.”

The mayor of Peoria, Illinois; a district attorney in Bedford County, Pennsylvania; the administration of a New Jersey community college; and the administration of the University of Illinois at Urbana-Champaign are among those joining Neilson as "winners" of the dubious awards. The Associated Press picked up on the Muzzles Award story last night, and it ran at al.com, seeing as how one of the chief "winners" is from Alabama.

Here is the citation for Neilson's "award":

Alabama Circuit Court Judge Claud D. Neilson for ignoring a basic tenant of defamation law that “equity will not enjoin a libel” and holding blogger Roger Shuler in contempt of court until he removed allegedly defamatory statements from his website. Shuler spent five months in jail before finally agreeing to remove the statements because he felt he could not endure jail any longer.

(Note: It's not quite accurate to say I felt I could not endure jail any longer. Obviously, I wanted to get out ASAP, but the main reason had to do with my physical well-being. I had witnessed an inmate suicide and numerous fights or near fights and feared for my safety.)


The Jefferson Center then provides more details about Neilson's unlawful actions in my case:

Alabama resident Roger Shuler is a former newspaper reporter who since 2007 has maintained the blog Legal Schnauzer. The blog aims to “scale all obstacles in pursuit of truth and justice” and since its founding Shuler has used it to allege a wide variety of illegal or unethical activities by Alabama’s public officials and political figures.

Judge Claud Neilson
In late 2013, Shuler posted claims that Rob Riley, son of a former Alabama Governor and active member of the Republican Party, was engaged in an extra-marital affair. Riley strongly denied the allegation and went to court seeking an injunction prohibiting Shuler from writing anything further about the alleged affair and asking that all posts about Riley be removed from the blog. At a hearing in which Shuler was not present, acting Circuit Judge Claud Neilson issued the requested injunction, effectively placing a prior restraint on Shuler’s speech. Shuler did not comply with the injunction, however, and not only refused to remove his earlier posts on Riley but also soon wrote a new one. Shuler’s non-compliance landed him in jail for contempt of court. He remained in jail for 5 months until he could not bear incarceration any longer. In March 2014, Shuler had his wife remove the allegedly defamatory posts about Riley and he was released from jail.*

While in many circumstances it is not unusual to find someone in contempt of court for refusing to obey a court order, it is virtually unheard of in the context of allegedly defamatory speech. Were it otherwise, individuals could effectively silence critics by merely alleging their speech to be defamatory without actually having to prove it. To avoid this, the established remedy for reputation harming falsehoods is post-publication relief, not pre-publication censorship. Yet Judge Neilson issued an injunction without any finding that Shuler’s posts about Riley were defamatory. By issuing a prior restraint on Shuler’s speech, Judge Neilson employed a legal mechanism that the U.S. Supreme Court has described as “the most serious and the least tolerable infringement on First Amendment rights.” Moreover, Judge Neilson’s unconstitutional injunction deprived a U.S. citizen of his liberty for 5 months. In hopes that it will inspire him to learn what any law student in a basic First Amendment course already knows, Alabama Judge Claud Neilson is awarded a 2015 Jefferson Muzzle.

*When a law enforcement officer went to Shuler’s house to arrest him for contempt of court, an altercation occurred resulting in a resisting arrest charge against Shuler. That matter involves legal issues that are not relevant for the purposes of this Muzzle.

The full Muzzles press release can be viewed below. Of the eight cases, mine is the only one that involves incarceration of a citizen. A strong argument could be made that Neilson's actions were far and away the most serious and outrageous infringement of First Amendment rights on the list:





Monday, April 20, 2015

Legal Schnauzer fights back against $3.5-million default judgment in Jessica Medeiros Garrison lawsuit


Legal Schnauzer Roger Shuler with Murphy,
the real schnauzer who inspired a blog.
Alabama attorney Davy Hay has made a notice of appearance on my behalf in a defamation lawsuit brought by Jessica Medeiros Garrison, former campaign manager to Attorney General Luther Strange.

The Garrison case produced a $3.5-million default judgment against me, with Jefferson County Circuit Judge Don Blankenship releasing an order last week. Garrison has been executive director of the Republican Attorneys General Association (RAGA), an affiliate of the Washington, D.C.-based Republican State Leadership Committee (RSLC).

On RAGA's Web site, Garrison currently is listed as senior advisor, with Strange set to be the group's chairman in 2016-17. Garrison also serves in an "of counsel" role with the Birmingham law firm Balch Bingham.

I'm not in a position to publicly discuss legal strategy, but I can say the law provides avenues to overturn default judgments, which are considered disfavored as both a matter of law and public policy in Alabama. I have not participated in the case for roughly a year--unable to defend myself or file valid counterclaims--and that is what led to the default judgment. I am still getting caught up on the case, but here are a few points I can make:

(1) As has been widely reported, I was unlawfully incarcerated from October 23, 2013, to March 26, 2014, because of a defamation lawsuit brought by Republican political figure Rob Riley and lobbyist Liberty Duke. From the moment I set foot out of the Shelby County Jail, my wife Carol and I were faced with possible foreclosure on our home--and the foreclosure actually took place on April 29, 2014. Without going into too many details at this point, that was part of the fallout from me being cheated out of my job at UAB for reporting accurately on this blog about the Don Siegelman case and the actions of wife-beating U.S. District Judge Mark Fuller (who now faces possible impeachment)--and from Carol being cheated out of her job at Infinity Insurance.

Bottom line? We were forced to move, and I stopped receiving notice about matters in the Garrison lawsuit. That's what led to the default judgment. Al.com's Kent Faulk reported the following in his story about the $3.5-million judgment:

Bill Baxley, one of Garrison's attorneys, also said the ruling "speaks for itself." He said he doubts his client will be able to collect any money from Shuler, who had his house foreclosed upon a year or so ago.

That seems to indicate Baxley knew my address had changed and that I likely was not receiving notice of court proceedings.

(2) Based on Kent Faulk's reporting about the $3.5-million default judgment, a significant portion of it apparently is based on allegations that I reported that Luther Strange was the father of Garrison's child. I did not, however, report that Luther Strange fathered a child with Garrison. From Faulk's article:

At the March 9 hearing the judge heard testimony from Garrison and Strange. Both testified the allegations Shuler had written that the two had an extramarital affair and had a son together were false, according to the judge's order.

Anyone is free to scour every post I've written about Jessica Medeiros Garrison, and it will be clear that I never wrote that Garrison and Strange had a son together. In fact, Faulk's article strongly suggests that Garrison and Strange testified falsely before the court.


(3) Both Baxley and Judge Blankenship apparently have tried to hold me accountable for comments left on my blog. Consider this from Faulk's article:

Garrison testified that Shuler had written false comments in his Legal Schnauzer blog concerning her and Alabama Attorney General Luther Strange, the judge's order states.

"The (Legal Schnauzer) comments suggested that the plaintiff (Garrison) received preferential treatment from the Attorney General because the two were engaged in an ongoing extramarital affair; and that the Attorney General was the father of the Plaintiff's minor son," the judge's order stated.

Garrison testified that the comments were false and "were embarrassing, hurtful and degrading."

This suggests Garrison's case and Blankenship's order are based largely on comments left at my blog, and not on the posts that I wrote. Is it lawful to hold me liable for comments left at my blog? Based on an Electronic Frontier Foundation (EFF) article about Section 230 of the Communications Decency Act (CDA), the answer appears to be no. From the EFF article:

CDA 230 also offers its legal shield to bloggers who act as intermediaries by hosting comments on their blogs. Under the law, bloggers are not liable for comments left by readers, the work of guest bloggers, tips sent via email, or information received through RSS feeds. This legal protection can still hold even if a blogger is aware of the objectionable content or makes editorial judgments.

In summary, the $3.5-million default judgment rests on shaky legal and factual grounds. Jessica Garrison and Luther Strange essentially picked on somebody who could not defend himself. In my view, that raises questions about the validity of the foreclosure on our home, which was at 5204 Logan Drive in Birmingham, 35242.

Did someone get the foreclosure process started with an ulterior motive in mind? Was the motive to turn our lives upside down and force my wife and me to move, thinking that would be the end of Legal Schnauzer?

Those are questions to address on another day. But for now, Legal Schnauzer lives on. And so does my defense in the Jessica Garrison lawsuit.

Attorney Davy Hay filed his Notice of Appearance on Saturday (April 18, 2015), and the document can be viewed below.





Thursday, April 16, 2015

Theresa Bruno, Business Partner of UAB Exec Shirley Kahn, Has Made Money Off Death Of Blazer Football


Shirley Salloway Kahn
UAB has spent more than $700,000 since last October on a public-relations firm whose owner has a business relationship with the university's senior vice president, Shirley Salloway Kahn, according to a report yesterday from al.com.

This is not the first time we've seen a conflict of interest that raises questions about Shirley Kahn's ethics, or lack thereof. The most recent conflict is multi-layered and even has connections to President Ray Watts' decision to torpedo the UAB football program.

John Archibald reports that Thesis Media, owned by Theresa Harper Bruno, has been paid $723,000 since October 2014 to work on the Campaign for UAB fund-raising project. Bruno opened a Mountain Brook jewelry store called Jordan Alexander several years ago, and her business partner is . . . Shirley Salloway Kahn.

UAB employees have reported receiving e-mails at work promoting Jordan Alexander, Archibald writes. That indicates Kahn (and Bruno) are using public resources and time for their personal business. We already have seen that Kahn has a habit of conducting her personal affairs on the UAB clock. More on that in a moment.

Where does UAB football enter the picture? A company called Theresa Harper Bruno Inc. has been paid $172,500--that's more than $28,000 a month--to help repair the public-relations disaster that ensued when Watts pulled the plug on the Blazer program.

The bottom line? A business partner and personal friend of Shirley Kahn has made a bunch of money from the death of UAB football. The same partner/friend has made even more money off the Campaign for UAB, an effort that Kahn oversees.

The big question: Has some of that money found its way back to Jordan Alexander, the jewelry store? If so, that could be a sign that Shirley Kahn has used her public office to enrich herself. That's the same problem that led to a pending 23-count criminal indictment against Alabama House Speaker Mike Hubbard.

Does that question call for an audit of Kahn's financial activities? Sure looks like it to us.

In all, Theresa Harper Bruno has made close to $900,000 from providing public-relations services to UAB. What kind of public-relations expertise does Bruno possess? Well, her company, Thesis Media, does not have a functioning Web site.

Let that sink in for a moment: A company that is designed to connect with the public cannot figure out how to get its own Web site up and running.

What about Shirley Kahn's previous clash with the Alabama Ethics Law? As we reported in October 2012, Kahn regularly encouraged UAB employees to house visitors at her husband's hotel. From that post:

The top fundraising officer at the University of Alabama at Birmingham (UAB) regularly tried to use her official position for personal gain, a source tells Legal Schnauzer.

Shirley Salloway Kahn, vice president for development, alumni and external affairs at UAB, regularly encouraged university colleagues to house visitors at the former Pickwick Hotel on Birmingham's Southside. The facility, now called the Hotel Highland at Five Points South, is owned by Kahn Properties. Dr. Donald Kahn is the president of Kahn Properties, and he is married to Shirley Salloway Kahn.

Alabama ethics law states that no public official or public employee is to use her official position for personal gain, for herself or a family member.

What about Kahn's tendency to do personal work while on the UAB (and taxpayer) clock. From our earlier post:

Our source says Shirley Kahn also has been seen apparently working with her husband at a site in English Village where one of his properties is being renovated. This activity took place about 2:30 p.m. in midweek, during the standard UAB work day. Was Kahn working on personal business while on the public clock? According to our source, it certainly looked that way.

Archibald managed to get a limp "statement" from Kahn about her relationship with Theresa Bruno, although we must note that Kahn apparently declined to answer questions. The UAB brain trust wanted no part of our 2012 report, perhaps because it came on the heels of a major fund-raising scandal at the University of North Carolina. From that 2012 post:

Theresa Harper Bruno

How much business has Shirley Salloway Kahn actually sent to a hotel that her husband owns? We raised that question via a phone message and an e-mail to Kahn, with a copy to Dale Turnbough, UAB's associate vice president for public relations and marketing. They have not responded to our query.
The Kahn story comes on the heels of a recent report that two top fundraisers at the University of North Carolina stepped down amid an investigation that they had charged the university for personal travel. Matt Kupec, UNC's vice chancellor for university advancement, resigned on September 9. Tami Hansbrough, a fundraiser in the university's division of student affairs, resigned on September 12.

The dominoes did not stop falling there. UNC Chancellor Holden Thorp announced on Sept. 17 that he will step down at the end of the academic year. This came after The Charlotte Observer asked in an editorial: "How Many Chances Should Thorp Get?" As the editorial points out, Thorp had been dealing with a number of fires on the Chapel Hill campus, including some in athletics. But the announcement of his plan to step down did not come until after the fundraising scandal had sparked banner headlines.

Could the Kahn/Bruno scandal lead to the senior VP's exit? Could it also lead to the ouster of Watts, who already is teetering from a "Fire Ray Watts" campaign that started with the clumsy, classless killing of UAB football?

Those who care about UAB--and that should include everyone who lives in Alabama--ought to be hoping the answer proves to be yes on both questions.

Wednesday, April 15, 2015

I am one of only three journalists in the past 115 years to be sent to jail related to a purely civil matter


Actress Judy Garland became
part of a historic defamation
case.
We have shown that I am the only journalist in the 2000s to be incarcerated in a civil matter, a case that had nothing to do with an alleged crime. How many journalists were incarcerated over purely civil cases in the 1900s?

The answer shines disturbing light on events that led to me being thrown in the Shelby County, Alabama, jail from October 23, 2013, to March 26, 2014. It also might cause citizens to ask if Judge Claud Neilson, Birmingham lawyer Rob Riley, and lobbyist Liberty Duke--the three individuals most responsible for my incarceration--should be subject to a federal investigation.

As to our original question, only two journalists were jailed over civil matters in the 20th century--and both cases involved circumstances radically different from those in my case.

How extraordinary were the actions of Riley, Duke, and Neilson? For some perspective, I'm only the third journalist to be jailed in a civil matter in 115 years--since the days of the William McKinley presidency.

Actually, my incarceration was even more extraordinary than the previous paragraph suggests, but we will save details about that for an upcoming post.

For now, we know that a 1972 U.S. Supreme Court case styled Branzburg v. Hayes allows for the imprisonment of journalists who refuse to turn over information related to a criminal case. According to a list compiled in April 2013 by Fox News, that has happened at least 28 times since 1900, five times in the 2000s.

What about the two civil cases where journalists were sent to jail in the 1900s? One of them involved an actress who played the lead role in one of the most beloved movies of all time. The other involved alleged political chicanery in a small Illinois town. Let's take a look:

* Garland v. Torre (1958)--Judy Garland, best known for her role as Dorothy in The Wizard of Oz, sued New York Herald Tribune writer Marie Torre, claiming quotes in a Torre column from an unnamed CBS executive defamed her. Torre reported that Garland was balking at a planned CBS special because, according to a network source, Garland thought she was "terribly fat" at the time. Garland claimed the statement was false and defamatory and harmed her professional reputation. Garland's lawyers took Torre's deposition, but she repeatedly refused to reveal the identity of her source. A federal judge sentenced Torre to 10 days in jail for contempt of court. This was the first case where a plaintiff faced a formal First Amendment challenge to a demand for information about sources.

* Costello v. Capital Cities Communications, et al (1984)--Richard Hargraves, an editorial writer for the Belleville (IL) News-Democrat, wrote an unflattering piece about Jerry Costello, chairman of the county board of supervisors. Hargraves wrote that Costello had lied regarding a campaign promise to oppose new taxes, and Costello sued for libel. During a deposition, Hargraves refused to name anyone in county government to whom he had spoken before writing the editorial, and a judge ordered him jailed for three days.

How do Garland and Costello differ from my case? Perhaps the biggest difference is that the plaintiffs in these cases did not seek unlawful preliminary injunctions. Also, the plaintiffs clearly sought trials because parties were subjected to depositions and cross-examination as part of trial preparation. There was nothing even resembling a trial in my case. Neilson conducted one hearing, to which I was escorted from the Shelby County Jail in shackles and chains, and that was it.

Lawyers for Garland and Costello apparently knew that the law does not allow for a preliminary injunction in a defamation case. Rob Riley and Liberty Duke apparently didn't know it or chose to ignore it. I lost five months of my freedom because of that.

Tuesday, April 14, 2015

Did Alabama Deputy Violate the "Sanctity Of The Home" and usher in an era of police misconduct?

A landmark U.S. Supreme Court case places a special burden on law-enforcement officers when entering the home to make an arrest. Evidence we've seen so far indicates Shelby County deputies failed to meet that burden when entering my home on October 23, 2013, to make an arrest on civil-contempt charges.

Payton v. New York 455 U.S. 573 (1980) "prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest." In fact, the words of Payton suggest the actions of Shelby County deputy Chris Blevins would have been unlawful even if he had a warrant.

That's because my arrest was not for a felony; it wasn't for a crime, and it wasn't supported by law. That would seem to make the Blevins' actions even more constitutionally dubious, considering that he entered my home without showing a warrant, knocked me to a concrete basement floor three times, and sprayed Mace in my face--all without even telling me why he was there.

A close reading of Payton, however, indicates Blevins' entry into our home would not have been made lawful by the presence of a warrant. (Hat tip to an anonymous comment who raised this issue on yesterday's post.)  The Payton court found that a warrant must be present to enter a dwelling "to make a routine felony arrest." What about entry to a home for a misdemeanor arrest--or, as in my case, an arrest that was not criminal in nature at all?

Payton does not specifically address this issue, but it strongly suggests that entry into a home under such conditions is unlawful, even with a warrant.

Blevins' actions were troubling the night I was arrested, and that was roughly a year before police misconduct became a national issue with the fatal shooting of an unarmed black teenager named Michael Brown by a white officer in Ferguson, Missouri--and the chokehold death of a black adult named Eric Garner in New York City.

It also happened before an Alabama police officer's assault on an Indian grandfather named Sureshbhai Patel; before an officer's fatal shooting of Walter Scott in South Carolina; and before the shooting of Eric Harris in Oklahoma, by an officer who apparently meant to tase Harris but shot and killed him with a pistol instead.

Did Blevins' unlawful entry into our home serve as a precursor to what has become, in 2014-15, "The Year Police Officers Were Unmasked As Thugs"? It's starting to look that way.

The Brown, Garner, Patel, and Harris debacles unfolded in public places. The thuggish behavior I experienced--which, thankfully, only roughed me up and did not kill me--took place in private, inside my own home. When officers start entering homes to rough up citizens who have been charged with no crime . . . well, our democracy might be showing serious wear and tear.

From Blevins' failure to show me a warrant or state that he had one, plus the failure of prosecutor Tonya Willingham to later produce a warrant when ordered to do so in court, makes a reasonable person think any warrant was defective for some reason--or there was no warrant at all.

This we know for sure: The law takes a dim view of law-enforcement officials entering a private dwelling without a valid warrant. Here are words from Payton v. New York:

The physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed. To be arrested in the home involves not only the invasion attendant to all arrests, but also an invasion of the sanctity of the home, which is too substantial an invasion to allow without a warrant, in the absence of exigent circumstances, even when it is accomplished under statutory authority and when probable cause is present. In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.

How traumatic was it for my wife Carol and me to have a law-enforcement thug unlawfully enter our home and wreak havoc? The following interview with Carol, on Bob Kincaid's Head On Radio Network (HORN), gives an idea.


(To be continued)



Monday, April 13, 2015

Did Alabama Sheriff Deputies Violate U.S. Supreme Court Precedent In Making Legal Schnauzer Arrest?



An Alabama police officer recently body slammed a grandfather from India named Sureshbhai Patel, and video of the assault helped shine an international spotlight on law-enforcement abuse in the Deep South. The spotlight became even brighter last week when a South Carolina officer fatally shot a fleeing Walter Scott in the back, over a non-operating brake light on Scott's vehicle--and then lied that he was being threatened at the time of the shooting.

How bad can some rogue officers be in the South, especially in the state I know best--Alabama? How deep is their disregard for the law? To help answer those questions, we can turn to my own arrest on October 23, 2013, which led to five months in jail. What was my crime? As with the Walter Scott case, there weren't even allegations of a crime; I was arrested for blogging--and I'm not making that up.

How absurd did it get? Courtroom evidence suggests that Alabama deputies arrested me without a warrant, making the arrest "unauthorized and illegal" under the law. If that was the case, the deputies likely ran afoul of a landmark U.S. Supreme Court case that generally prohibits warrantless entry into a private home to make an arrest.

Payton v. New York, 455 U.S 573 (1980) specifically forbids such entry in most cases involving felony arrest. My arrest was for civil contempt in a defamation lawsuit and did not involve a crime at all.

Shelby County deputy Chris Blevins entered my home on October 23, 2013, walking into our basement garage to knock me down three times and Mace me before telling me that I was under arrest. It's all caught on a videotape that later was played in open court.

At no point, in a video taken from his police cruiser, does Blevins show an arrest warrant. When the prosecution was told to turn over copies of any warrants at my resisting-arrest trial in January, prosecutor Tonya Willingham replied that she did not have any warrants.

All of that suggests there was no warrant for my arrest, and that raises the issue of Payton v. New York. Here is the key finding in that case:

The Fourth Amendment, made applicable to the States by the Fourteenth Amendment, prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest.

I can be heard on the video telling Blevins to get out of my house, so his entry was nonconsensual. What are some of the primary legal points in Payton and how might they apply to the Legal Schnauzer case? We will take a look at those questions in upcoming posts.

Those questions become particularly compelling in the aftermath of the assault on Suresehbhai Patel--not to mention the Michael Brown shooting in Ferguson, Missouri, and the Eric Garner chokehold death in New York City and the Walter Scott shooting in South Carolina . . . and the list seems to grow by the day.

Meanwhile. we've already shown that Officer Blevins violated Alabama statutory law by entering our house to make an arrest without stating his purpose for being there. And he violated federal law by unlawfully using pepper spray, constituting excessive force.

Is our nation turning into a police state that is spinning out of control? A growing body of evidence suggests the answer is yes.

How disturbing is this? Well, we learned yesterday via The New York Daily News that Officer Michael Slager laughed to a coworker about "pumping adrenaline" after shooting Walter Scott to death.

We have some disturbed individuals wearing law-enforcement uniforms right now. I saw that firsthand when Chris Blevins committed an assault and battery against me--inside my own home.

How bad was it? The video below features an interview with my wife Carol just a few days after I had essentially been kidnapped, and the footage shows the havoc that Blevins wreaked in our garage--all apparently without the benefit of having a warrant. (Hat tip for the video to Matt Osborne, editor of Breitbart Unmasked.)


(To be continued)