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Friday, March 21, 2008

Jack-Booted Thugs and Legal Consequences

One of the recurring themes of this blog is that a significant number of people in the legal profession have a shocking lack of regard for the law.

Whether it involves lawyers, judges, law-enforcement personnel, court clerks, you name it, I've repeatedly seen the law treated as if it were yesterday's garbage.

So perhaps I should not be surprised that people in positions of authority evidently have no qualms about making unlawful threats to seize my home--all for the apparent purpose of shutting down this blog.

I'm not a lawyer, and Lord knows I'm not a prosecutor. But I've spent way more time than the average layperson trying to educate myself about the law. And I think I can make some educated guesses about possible legal ramifications certain folks could face for making unlawful threats to seize my home--or anyone's home, for that matter.

Here are a few civil and criminal wrongs that seem to be in play here:

* Civil rights violations, part I--The writ of execution I received was not served according to Alabama law. Shelby County Clerk Mary Harris and Sheriff Chris Curry should know that a writ of execution and a notice of levy must be served with a notice of rights to claim exemptions. This was not done, and it almost certainly was not done intentionally. That is a violation of procedural due process guaranteed under the 14th Amendment of the U.S. Constitution.

* Civil rights violations, part II--It is pretty much impossible to sue a judge, no matter how corrupt he is, as long as he acts within his judicial capacity. But when a judge acts beyond his capacity as a judge, he is fair game. For example, a judge certainly can be sued for employment discrimination or sexual harassment against members of his staff. Are Shelby County Circuit Judges J. Michael Joiner and G. Dan Reeves involved in these unlawful threats to seize my house? It's hard for me to believe that it could take place without their knowledge. And if they are involved, my research indicates that a judge acts beyond his judicial capacity if he is involved in the collection of a judgment. If I'm correct about that, Joiner and Reeves could face liability for civil rights violations.

* Abuse of process--Abuse of process is a relatively broad tort, similar to malicious prosecution. One of the main differences between the two is that abuse of process can be filed as a counterclaim. Malicious prosecution requires that a previous proceeding end favorably for the plaintiff, so it cannot be filed as a counterclaim. Anything involving garnishment, attachment, execution, levy, etc. is a classic use of legal "process." And the threats to seize my property are a classic abuse of such process. Any number of folks could be liable for this--starting with Attorney Bill Swatek, who I assume applied for the writ of execution, and County Clerk Mary Harris, who unlawfully issued it, and Sheriff Chris Curry who is unlawfully following through with it.

* Honest-services wire fraud--Shelby County deputies have made more than a dozen phone calls to my wife's cell phone about the unlawful writ of execution that we received. This represents use of U.S. wires in furtherance of a fraudulent scheme, designed to wrongfully deprive me of property. I'm not sure that the deputies who made the calls could be held accountable because they might believe the writ is lawful. But whoever put them up to making his repeated phone calls should be at risk for a federal wire-fraud charge. Of course, nothing is going to happen to these folks as long as Alice Martin is U.S. Attorney here. But God willing, we'll have a Democrat in the White House come January 2009. If a we wind up with a real U.S. attorney in the Northern District of Alabama, a number of folks in this case might want to get legal representation.

* Criminal and Civil Trespass--On at least three occasions, Shelby County deputies have come on our property to leave unlawful documents for us. Law-enforcement personnel normally have a license to enter property when they are acting in their professional capacity. But these were not lawful documents that should have been part of the deputies official business. Again, I don't know that the deputies themselves could be held accountable for this. But I believe whoever instructed them to repeatedly enter or property for no official reason should be at risk of both criminal and civil trespassing charges.

* Defamation--State law requires that a sheriff's sale of real property be advertised for three consecutive weeks prior to the sale. I've seen no indication that such a notice has been advertised yet. But if it is, anyone who caused the advertisement to be placed, should face liability for defamation. The notice would indicate that I owe a judgment that I have refused to pay, causing my home to be put up for auction. This is not true. This also would indicate that I have failed to show that my home is exempt from levy. Again, this is not true because I have been given no notice of right to exemption, as required by law. So far, the notice of sale has been "published" only to me and my wife, and that does not constitute publication required by defamation law. But if the notice is posted or advertised where any third party can read it, those responsible for such posting should be liable for defamation.

* Conspiracy--If two or more parties worked together to carry out any of the criminal acts noted above, that should lead to a conspiracy charge.

* First Amendment--If it can be shown that the threats to seize property were designed to scare me into shutting down this blog, that would raise constitutional issues regarding my right to free speech.

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