Tuesday, June 30, 2015

The words of NY Times reporter Campbell Robertson contradict his reporting about my incarceration

Campbell Robertson
Campbell Robertson, a reporter for The New York Times, wrote an article about my unlawful incarceration that claimed I was unwilling to hire a lawyer to fight the case. Robertson also claimed I was "no stranger to defamation lawsuits"--and a caption on his story followed suit by stating that my reporting on this blog had "prompted many defamation lawsuits."

I have shown on this blog that both Times' claims are false. (See here and here.) But now we've learned that Robertson's own words contradict his claims about my alleged unwillingness to hire a lawyer. And the public record, which Robertson apparently did not bother to check, shows that the newspaper's claims regarding defamation lawsuits are false.

All of this raises serious questions about the Times' competence, its motivations--or both--in reporting on a First Amendment case that represents a first in American history. Did the Times convey to its readers the grotesque nature of constitutional violations in my case? No, it did not, and that is not just my opinion. It comes also from Andrew Kreig, a lawyer/journalist who serves as director of the Washington, D.C.,-based Justice-Integrity Project. Kreig minces no words in showing how the Times "flubs" its reporting on my case; he also gives Robertson an opportunity to explain his approach to the article--and the reporter winds up showing that he can't keep his story straight.

How shallow was the Times' coverage? Kreig sums it up:

The Times story underplayed the court system's outrageous confiscation of Shuler's rights -- and the damage to the public. The kangaroo court proceedings set back the state's image more than 50 years to the time of the segregationist "Jim Crow" era when libel and contempt of court proceedings were used to crush the civil rights movement.

These days, the Shuler case illustrates how a court system can destroy targeted individuals and businesses by selectively ignoring basic due process protections typically expected in the legal system.

I spoke with two Alabama lawyers--David Gespass and Austin Burdick--while I was in jail, so that seems to make it fairly obvious that I was open to having legal representation. If I wasn't open to representation, I would not have spoken with Gespass and Burdick. (For the record, Gespass never presented a clear plan for gaining my release under the law and seeking damages for violations of my constitutional rights; Burdick stated that he likely would need to bill an amount that I could not afford. He also said he probably would write off the amount as pro bono representation, but I was concerned about winding up with a hefty bill--again, with no plan for seeking damages on my behalf, from which I could pay his fees.)

Robertson apparently knew I had spoken to multiple lawyers, but he still wrote the following:

So while the furor has all but dissipated, Mr. Shuler remains in jail, unwilling to take down his posts but also unwilling to hire a lawyer and contest his incarceration in the state courts.

Robertson and I spoke for an hour--in four 15-minute increments while I was in jail--and I would estimate that about 75 percent or more of the conversation was on the "hiring a lawyer" issue. Of all the profound issues present in my case, this seemed to be the only one that held any interest for Robertson.

Did I state that I had a hard time trusting lawyers, given my experiences with them in the past? (See here, here, and here.) Yes. Did I state at various times in the different interviews that I didn't want to hire a lawyer--or I was reluctant to hire a lawyer--because of those trust issues? Yes.

But did I say I was unwilling to hire a lawyer or that I would not even consider it? The answer is no. In a February 2014 post here, I summed up what I ultimately told Robertson:

I had specifically told Campbell Robertson that we are open to being represented by the right lawyer with the right strategy under the right circumstances. I felt I made that very clear, but there must have been some misunderstanding because The New York Times incorrectly reported that I was refusing to hire a lawyer. That's not true and I just want to make sure that's clear."

Does that sound like someone who is "unwilling to hire a lawyer"? No, it does not. And Robertson admits, in his comment to Andrew Kreig, that I told him I was open to hiring a lawyer. Robertson's full comment can be read at the end of this post, but here is the key section:

I spoke, in 15 minute increments, to Mr. Shuler for an hour from jail. I asked him multiple times about hiring a lawyer; it was in fact my main line of questioning, having already gotten many of the other details in a long interview with his wife. He said that he did not want to hire a lawyer because he did not trust lawyers (an answer he repeated every time I asked), and that he did not want to fight this in state court, where it currently stands.

He did say he was open if someone were to offer pro bono representation if this was in federal court. He also refused state-provided counsel on his criminal charges. None of this lessens the constitutional problems of the judge''s actions. But it does lead to a complicated story.

In other words, I did say I was open to hiring a lawyer--and Campbell Robertson admits his reporting was inaccurate. Did that hurt my wife and me as we sought justice for what amounted to a state-sanctioned kidnapping? Yes, it did--and here is how Andrew Kreig sums it up:

The Times column said that Shuler does not want a lawyer. That seems to be an error harming their chances of obtaining counsel.

Shuler’s wife Carol . . . is a co-defendant in the suit who has been permitted by authorities so far to remain in their Birmingham home without arrest. But she has been too frightened to leave for the most part since except for occasional quick trips to a store.

She told me in a phone interview this week that they would very much like to have a lawyer, as they told [Robertson].

As for the federal-court issue, my arrest raised issues under the First, Fourth, and Fourteenth amendments--constitutional matters that usually are addressed in federal courts. If I was going to seek redress for the wrongs committed against me, it seems federal court would be the proper venue. Robertson's reporting--and his questioning--hinted that my only option was to seek release in state court while ignoring any possibilities for damages in federal court, or anywhere else.

One of the lawyers I spoke with in jail seemed to have that viewpoint--and we will report on that in an upcoming post. The lawyer suggested that I should always maintain a defensive posture, never seeking to go on the offensive. Did Campbell Robertson have a similar agenda in his reporting?

It sure smells that way from here. Why would Robertson take such an approach to the story, essentially offering up a cheap hit piece on a journalist who has been abused in a way that appears to be a first in American history? We've uncovered some evidence that points to possible answers for that question, and we will look at that in an upcoming post.

(To be continued)

Here is how VictoryLand should fight back against Luther Strange and the Alabama Supreme Court

Milton McGregor
Alabama Attorney General Luther Strange filed a notice of appeal within 24 hours of last week's circuit-court ruling favoring the VictoryLand casino in a forfeiture case. Does that mean VictoryLand officials should sit back and wait for another negative ruling from the Alabama Supreme Court, which repeatedly has violated the state constitution and its own precedents to rule in favor of Strange and former Governor Bob Riley on non-Indian gaming issues?

I don't think so, and that's because the Alabama Rules of Civil Procedure (ARCP) provide a remedy that should be a fit for VictoryLand. In fact, if I were in charge of the legal team for owner Milton McGregor, the remedy would have been sought a long time ago.

What am I talking about? Well, let's first return to last week's ruling from Circuit Judge William Shashy, finding that VictoryLand has been denied equal protection of the law under both the Alabama Constitution and the Fourteenth Amendment to the U.S. Constitution. That means VictoryLand has been treated unfairly under the law, and as a result, it has suffered significant civil damages--and those probably total in the tens, maybe the hundreds, of millions of dollars.

As attorney general, Luther Strange and members of his prosecutorial staff likely are immune from a lawsuit--even though two leaders of his anti-gambling unit, Sonny Reagan and Gene Sisson, have been forced out amid allegations that they acted corruptly in the investigation of House Speaker Mike Hubbard.

But who has been pulling Luther Strange's strings? Who has been encouraging the attorney general to unlawfully target VictoryLand, and who has benefited from the casino being closed for roughly 28 months?

Judicial immunity likely protects members of the Alabama Supreme Court from a lawsuit. But who is pulling their strings? Who has encouraged them, over and over, to rule contrary to law in a way that has heaped devastation upon VictoryLand and its former employees?

Any individuals who are operating unlawfully "behind the curtain" might face liability that likely would reach into the eight or nine figures.

Who has been causing this massive economic harm to VictoryLand and its employees? The casino has a right to find out, and Alabama civil procedure provides a mechanism for doing just that.

It's called Rule 27 ARCP ("Discovery before action or pending appeal"). The rule allows a person or entity to seek "preaction discovery" to determine if it has a case against someone, what the nature of the case might be, and who might be among the defendants. In other words, it allows anyone who thinks he might have a cognizable legal claim to conduct discovery--via depositions, requests for production of documents, etc.--to determine if he has grounds for a lawsuit and against whom the suit should be directed.

Here is the long-winded version of what Rule 27 is about:

A person who desires to perpetuate that person’s own testimony or that of another person or to obtain discovery under Rule 34 or Rule 35 regarding any matter that may be cognizable in any court of this state may file a verified petition in the circuit court in the county of the residence of any expected adverse party. The petition shall be entitled in the name of the petitioner and shall show: (1) that the petitioner expects to be a party to an action cognizable in a court of this state but is presently unable to bring it or cause it to be brought, (2) the subject matter of the expected action and the petitioner’s interest therein, (3) the facts which the petitioner desires to establish by the proposed testimony and the petitioner’s reasons for desiring to perpetuate it, (4) the names or a description of the persons the petitioner expects will be adverse parties and their addresses so far as known, and (5) the names and addresses of the persons to be examined and the substance of the testimony which the petitioner expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition, for the purpose of perpetuating their testimony or to seek discovery under Rule 34 or Rule 35 from the persons named in the petition.

As the title states, Rule 27 is appropriate either before an action or pending an appeal. Well, Luther Strange's actions have VictoryLand now facing an appeal. So casino officials have every right to seek information that will either help with their appeal or with a future claim against those who have caused them damages. Also, the proper venue for such a petition likely would be Macon County.

Are there possible downsides to a Rule 27 filing? Perhaps, and the biggest one is that the petition could wind up on appeal before the same high court that already is cheating VictoryLand. But our research  indicates the Alabama Supreme Court's own rulings provide support for the notion that VictoryLand is entitled to conduct "preaction discovery" under Rule 27.

We have more on that coming up.

The bottom line? Parties who are being cheated by a dysfunctional court system--and that includes VictoryLand or anyone else--have a right to seek information that might identify the individuals or entities who are causing them harm. VictoryLand has the legal resources to pursue a Rule 27 petition, and in my view, it is way past time for doing so.

(To be continued)

Monday, June 29, 2015

Rob Riley and his sidekick provide classic examples of techniques that lying lawyers use to pervert justice

Jay Murrill
Based on the number of lawyer jokes that have been floating around for years, it seems safe to say that many Americans do not hold the legal profession in high regard. We suspect that is because lawyers are seen as individuals who lie more than the average person.

Alabama GOP operative Rob Riley and Jay Murrill, his sidekick from Homewood's Riley Jackson law firm, provide prime examples.

We've already caught Riley lying to The New York Times about the dubious defamation lawsuit he and lobbyist Liberty Duke brought against me, my wife, and the Legal Schnauzer blog. We also have caught Murrill lying about the case to the CBS television affiliate in Birmingham.

But Riley and Murrill are not limited to making false statements to the press. No, they are "talented" liars who are quite capable of fudging the facts (and the law) across multiple platforms, including court documents.

Let's consider Riley's words to Sara Rafsky, a reporter for the Committee to Protect Journalists (CPJ), in an article titled "Censorship in Alabama's Shelby County." Rafsky reports that Riley, in a telephone interview about his lawsuit against me, said "he has a right to seek injunctive relief in a defamation case and there is legal precedent for doing so."

Riley has a slight problem with that statement: It is false. The work of his own hack lawyer, Jay Murrill, proves it is false. The words of experts on First Amendment law, of which Riley clearly is not one, also show it is false.

As for Murrill's handiwork, evidence in the record suggests he or other members of the Riley firm wrote many (maybe all) of the orders that Judge Claud Neilson wound up signing in the case. That includes the Order on Petitions for Preliminary Injunction, which is dated October 4, 2013, and can be viewed at the end of this post.

On page 2 of the order, second paragraph, Murrill/Neilson cite a case styled South v. City of Mountain Brook, 688 So. 2d 292 (Ala. Crim. App., 1966) for the proposition that "injunctive relief can be an appropriate and effective remedy to repeated and ongoing defamatory speech."

The South case, however, says nothing of the sort. It's a criminal case, involving alleged harassing communications, and has nothing to do with defamation, injunctive relief, or any other civil matter. In fact, you don't even have to read the case to see that it represents a bogus citation--it's styling shows right up top that it's from the Alabama Court of Criminal Appeals, so it couldn't have anything to do with civil defamation. This is a stunning example of legal chicanery, which more or less amounts to a fraud on the court.

But Murrill/Neilson do not stop there. At the sentence regarding the South case, they refer to footnote No. 3. The reader can look to that footnote at the bottom of the page and find . . . 12 other cases that supposedly support the claim that injunctive relief is proper in a defamation case.

That raises another slight problem for Murrill/Neilson--and Riley: None of those cases supports the proposition that injunctive relief is proper in a defamation case; in fact, quite a few of them say just the opposite.

Claud Neilson
This did not escape the attention of various legal experts who noticed that a journalist/blogger (me) had been sent to jail under outrageous circumstances in Alabama. In an amicus brief asking Neilson to reconsider his actions, the ACLU noted that his orders made scant mention of U.S. Supreme Court cases prohibiting injunctive relief--and then went even further. (See brief at the end of this post.)

Indeed, not only were these substantial U.S. Supreme Court cases not presented to the Court, the cases cited in the Preliminary Injunction (see p. 2 and n.3) demonstrate that injunctive relief in a defamation case requires a final determination on the merits of the litigation.

In other words, those 13 cases cited by Jay Murrill do not remotely say what he claims they say. For the record, there was no final determination on the merits of the litigation because there was no trial--and that's because Riley and Duke did not seek a trial and did not ask to have their case presented to a jury.

Ken White, a Los Angeles-based First Amendment lawyer and author of the Popehat blog, picked up on the ACLU's theme in a post dated October 27, 2013, noting that Neilson had declared certain Legal Schnauzer posts to be defamatory without any such finding at trial. Wrote White:

So how did Judge Neilson excuse granting Riley's motion for a preliminary injunction before any trial of the matter? Very badly.

Judge Neilson — who may have executed a proposed order from Riley's attorneys — utterly failed to cite or distinguish any of the wall of authority discussing how preliminary injunctions are strongly disfavored in both equity and First Amendment law. Judge Neilson didn't cite the "only in the most extraordinary circumstances" rule, let alone apply it. He only cited two Alabama cases — one 1947 case about defamation of a business that had no First Amendment analysis, and one appeal of a criminal harassment conviction that doesn't even mention prior restraint or injunctions. In a footnote, Judge Neilson cited a melange of state and federal cases from California, Ohio, Michigan, and Illinois with no explanation or analysis. Those cases actually undermine his authority to issue the injunction, because they support the proposition that an injunction against defamation is almost always inappropriate before a finding on the merits at trial or if the plaintiff wins a summary judgment motion. It appears that the drafter of this order simply scoured the nation for the handful of outlier cases saying something positive about injunctions against defamation — plus the tiny number of cases approving them pretrial — while completely ignoring the authority (including from the United States Supreme Court) that such injunctions are inappropriate. . . .

How is that for an honest, accurate, and brutal analysis of Murrill and Neilson's work? White does not let Rob Riley off the hook, either:

It's difficult to see what justifies this order — unless it's the fact that Robert J. Riley, Jr. is the son of a former governor and well-connected in the Alabama Republican party. It's very rare for judges to approve pretrial injunctions against defamation in the face of the overwhelming law against it, but when it happens it tends to benefit the rich, connected, and powerful. It's called the rule of law: they rule, that's the law.

As White reminds us, all of this lying was done on behalf of Rob Riley (and Liberty Duke). How bad was it, how flagrant? To arrive at an answer, you have to understand what those 13 cases cited by Murrill/Neilson actually say. We will address that in an upcoming post.

Thursday, June 25, 2015

VictoryLand casino is set to reopen after state judge finds bingo raid was unfair and unconstitutional

Milton McGregor
Stating that actions of the Attorney General's office were unfair and unconstitutional, an Alabama judge found in an order released today that the seizure of 1,615 bingo machines and more than $260,000 dollars from the VictoryLand casino was unlawful.

The order from Circuit Judge William Shashy appears to pave the way for VictoryLand to reopen, after being closed for roughly 28 months. The facility shut down after agents for Attorney General Luther Strange seized equipment and money in a February 2013 raid, claiming violations of state anti-gambling laws, VictoryLand had operated lawfully for years under a voter-approved constitutional amendment that allowed bingo in Macon County.

Shashy's ruling grew from a forfeiture hearing in September 2014. The facts and the law appeared to be heavily on VictoryLand's side, and a ruling was expected to come around November 1 of last year. Why did it take so long to get a ruling on a relatively straightforward matter? Why was Shashy's ruling almost eight months late in arriving?

We don't have the answers to those questions, but VictoryLand owner Milton McGregor probably considers it a case of "better late than never." He also probably is relieved to have finally prevailed in a legal matter, considering that the Alabama Supreme Court consistently has violated its own precedents to rule in favor of former Governor Bob Riley (who launched the anti-bingo crusade in 2008) and Strange (who picked up the baton from Riley after being elected AG in 2010).

McGregor told al.com today that he plans to get back in business at VictoryLand, which includes a casino, hotel, and greyhound track. "The decision paves the way for electronic bingo to resume at VictoryLand and for the people of Macon County to once again go back to work and provide for their families," McGregor said in a statement.

Shashy ruled primarily on constitutional grounds, finding that Strange, by closing some electronic bingo facilities and leaving others open, had violated VictoryLand's right to equal protection of the law under the Fourteenth Amendment to the U.S. Constitution. The state, Shashy wrote, was unlawfully "cherry picking" some casinos to target and some to leave alone.

Shashy cited the Alabama Supreme Court's six-pronged test from Barber v. Cornerstone, 42 So. 3d 65 (Ala., 2009), which has been used to determine if casinos are offering a lawful form of bingo. But Shashy found that Barber had been unevenly and unlawfully applied:

Through testimony and discussion with counsel for all the parties, it is undisputed that other facilities within the State have operated the same type of gaming devices for substantial periods of time, even while VictoryLand has been shut down. The State did not dispute that other facilities have the same machines or that they are open. The Court asked State counsel, "My question is, if they've got the same machines, why are they open?" Counsel for the State protested that the State had, at times, raided some of those other facilities; however, the State did not dispute that between August 9, 2010, the date of the first closing of VictoryLand, and the beginning of trial, a period of approximately four years, electronic bingo games like those at issue here were in operation at Tribal Facilities in the State of Alabama continuously and without interruption. The State also did not dispute that during the same time frame, non-Tribal facilities in the State of Alabama also operated bingo games at Center Stage (Houston County), Greenetrack (Greene County) and Greene County Charity Bingo (Greene County) almost continuously for 1,166 days, 1,134 days, and 1,058, respectively. During this same four-year period, Victoryland operated the same type of electronic bingo for only 63 days. Electronic bingo operations ceased at VictoryLand permanently on February 19, 2013, the day of the raid that is the subject of this trial. While electronic bingo operations at VictoryLand remain shuttered, today, both Tribal and non-Tribal facilities within the State of Alabama continue to operate the same type of electronic bingo games. The State could not and did not offer any substantive reason why it permitted this state of affairs to continue at other facilities, while taking its present stance against the same operations at Victoryland.

Such uneven treatment, Shashy wrote, runs contrary to long-held Alabama case law:

The propriety of the State of Alabama electing to currently pursue action against only one facility is of great concern. It is apparent at the present time that the State of Alabama is cherry picking which facilities should remain open or closed. This Court refuses to be used as an instrument to perpetuate unfair treatment. The judiciary "cannot allow our justice system to do injustice in the name of doing justice." Aspinwall v. Gowens, 405 So. 2d 134 (Ala., 1981). "Courts exist to redress or prevent wrongs, not to perpetrate them." Kennedy v. Davis, 55 So. 104 (Ala., 1911).

Shashy then address the constitutional issues at stake:

Equal protection, under the law, is one of the corner stones of our American system. . . . It is so integral to those foundations that the motto "Equal Justice Under Law" is etched into the facade of the United States Supreme Court Building. In order to achieve the equal protection that is so fundamental to our system, the law requires that we must equally apply the law. The Alabama Supreme Court . . . quoting from the United States Supreme Court in Plyler v. Doe, 457 U.S. 202 (1982), stated: "The Equal Protection Clause directs that 'all persons similarly circumstanced shall be treated alike.'" 
Applying this rationale, all facilities operating the same type bingo machines (Center Stage, Greenetrack, and Greene County Charity Bingo) should have the same forfeiture action applied against them each time there is a violation. This has not been done. . . .
This Court is not free to disregard an opinion of the highest court of the United States of America or the State of Alabama, nor is the State of Alabama free to apply the law in an unequal manner. Allowing unequal treatment places the Court in an untenable position.
The Court cannot condone or perpetuate unequal treatment. Perhaps it is best stated by the Supreme Court Justice Lewis F. Powell Jr.: "Equal justice under law is not merely a caption on the facade of the Supreme Court Building, it is perhaps the most inspiring ideal of our society. It is one of the ends for which our entire legal system exists . . . it is fundamental that justice should be the same, in substance and availability . . . "

Will Strange appeal to the Alabama Supreme Court, which consistently has ruled in his favor? That is unknown at this time, but Shashy's ruling seems to rest on sturdy legs, the ones that are supposed to under gird the U.S. justice system,

Ernie Potvin, writer and archivist on the gay-rights movement, probably helped unearth Bill Pryor photos

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Wednesday, June 24, 2015

Why did Rob Riley's lawyer send a letter to my wife, falsely claiming that she was not targeted for arrest?

Carol Shuler, from her Facebook page
After I had been incarcerated for several weeks in late 2013--the fallout from daring to write a blog about legal and political corruption in Alabama--my wife, Carol, received a curious letter from an attorney named Jay Murrill, of the Riley Jackson firm in Homewood.

The firm, of course, is headed by Rob Riley, the son of former governor Bob Riley and the individual (along with lobbyist Liberty Duke) who filed a dubious defamation lawsuit that led to my time behind bars. Murrill was the chief counsel for his boss, apparently because no lawyer from another firm would dare touch a lawsuit that so flagrantly ran contrary to First Amendment principles.

So why was Jay Murrill, who had filed papers asking that Carol and I unlawfully be arrested, writing my wife? He was trying to convince her that the Riley firm had no intention of actually seeking her arrest--even though Murrill's own court documents tell another story.

We've already shown that Rob Riley and Jay Murrill have epic struggles with the truth. (See here and here.) But this might be a falsehood for the ages.

Murrill's letter arrived via U.S. mail, and we have lost our only paper copy. I saw the letter but didn't read it, while my wife read it multiple times because she couldn't believe what she was reading. It was short, and this is the gist of it, based on Carol's memory:

Re: Robert R. Riley Jr., et al v. Roger Shuler, et al

Mrs. Shuler:

We would like to correct an apparent misunderstanding regarding the above-referenced case. Several news reports have indicated you are afraid to leave your home, from fear that you will be arrested. Please know that we never have had any intention of seeking your arrest in this matter.


Jay Murrill

Why did Murrill write the letter? I can only assume he and his Riley Jackson colleagues decided it was a bad public-relations move to be seen as seeking Carol's arrest in a matter that did not involve her. But that's exactly what they were doing--and Murrill's own court papers prove it.

(The words of Shelby County deputies also prove it. On the night of my arrest--while I was sitting in the back of a patrol car with pepper spray dripping all over me--I could hear deputies talking about trying to also apprehend Carol. She was asleep in an upstairs bedroom, and the cops apparently didn't want to call even more attention to themselves by breaking down a door to get to her.

(During the first week I was in jail, deputies made at least three additional visits to our house--all apparent attempts to arrest Carol, and each one failed. The visits only stopped after word about my arrest started circulating in the press.)

As for written proof of Murrill's intentions, let's consider a document styled "Petitioner Robert R. Riley's Petition to Hold Respondents in Contempt." (See document at the end of this post.) This is the primary document where Riley asks the court--under Jay Murrill's signature--to have me arrested, contrary to more than 200 years of First Amendment law. But Riley was not after just my arrest. The clear language shows he was seeking Carol's arrest, too.

First, her name is listed right under mine as a defendant. Then consider these words from the petition's first paragraph:

Comes now Petitioner Robert R. Riley Jr. and moves this Court to hold Respondents Roger Shuler and Carol T. Shuler in contempt of this Court's September 20, 2013, Temporary Restraining Order (the "TRO") and its October 1, 2013, Order on the Petitions for Preliminary Injunction ("Preliminary Injunction") . . . 

That language clearly seeks to hold me AND Carol in contempt. How nutty is this? I could not lawfully be held in contempt of a TRO and preliminary injunction that amount to prohibited prior restraints under longstanding First Amendment law. But at least I did (and do) write, edit, and administer the Legal Schnauzer blog--and I wrote the blog posts in question. Carol had nothing to do with the blog or the posts.

Now let's consider the last paragraph of Rob Riley's petition, under Jay Murrill's signature:

In light of the foregoing, Petitioner Riley respectfully requests that the Court find that the Respondents are in contempt of the TRO and the Preliminary Injunction and requests that the Court exercise its authority pursuant to Ala. R. Civ. P. 70(A)(e)(2) to require Respondents to comply with this Court's orders. 

Notice again the use of the plural ("Respondents"), referring to both me AND Carol. Also note the reference to Alabama Rule of Civil Procedure 70(A)(e)(2), which holds:

(2) COMMITMENT IN CASES OF CIVIL CONTEMPT. The court may order that a person who had been found to be in civil contempt be committed to the custody of the sheriff until that person purges himself or herself of the contempt by complying with the court's writ, subpoena, process, order, rule, or command.

This rule is about having someone arrested for alleged contempt of court. And Jay Murrill's own words show that he intended to have it applied to me AND Carol.

So why did Murrill lie his fanny off and state in a letter that he never had any intention of seeking Carol's arrest? I can think of only two possible explanations: (1) He and Riley were receiving blow back for seeking my spouse's arrest, with no lawful grounds for doing so; (2) They were trying to convince Carol to let down her guard, so they could then nab her.

If No. 2 was the goal, it didn't work. Carol remained free and was able to drum up national and international press coverage about the trampling of constitutional rights in Shelby County, Alabama--at the direction of attorneys Rob Riley and Jay Murrill.

Does this remain a sensitive topic for Murrill? Apparently so. I sent him the following e-mail on February 19, 2015:

Mr. Murrill:

I understand that while I was in jail, upon the demands of you and Mr. Riley, you sent my wife a letter, assuring her that she was not the target of arrest.

I have seen a copy of that letter and would like to have a copy for my files.

Could you please send a copy via e-mail attachment.

Thank you,

Roger Shuler

When that did not draw a response, I followed up with another e-mail on March 16:

Mr. Murrill:

This is a followup to my request of Feb. 19, asking that you send a copy of a letter you wrote to my wife, assuring her that she was not the target of an arrest.

I do not have a copy of that letter for my files, and this is my second request for you to send me one via e-mail attachment.

Also, would you please send a copy of any affidavit that Mr. Riley filed in the lawsuit against my wife and me. I have a copy of Liberty Duke's affidavit, but I do not have a copy of any similar affidavit from Mr. Riley.

Since you and your client rushed to file a lawsuit against us, and to have me unlawfully thrown in jail, I assume you also will act in a speedy fashion to get these requested documents to me. I ask for receipt by end of workday on Friday, March 20, 2015.

Thank you,

Roger Shuler

When that did not draw a response, I tried again with an e-mail on March 31:

Mr. Murrill:

This is a followup to my requests of Feb. 19 and March 16. In those e-mails, I asked for a copy of the letter you wrote to my wife, assuring her that she was not a target of an arrest. I have not received a copy of that letter, and hereby renew my request for a copy. I have seen that letter, so I know it exists.

I also asked for a copy of any affidavit that your client, Rob Riley, filed in the lawsuit against my wife and me. You also have not sent a copy of any Riley affidavit. Does that mean one does not exist? If so, why did Liberty Duke file an affidavit, while Mr. Riley did not?

One other item that I would like to request: Would you send any and all documents related to the temporary restraining order (TRO)/preliminary injunction that Mr. Riley and Ms. Duke sought against me. Please enclose any proof that I received actual notice of the TRO by personal service or otherwise, as required by Rule 65 of the Alabama Rules of Civil Procedure (ARCP). Also, please enclose a copy of any security bond (noting the amount) that was filed with the TRO/preliminary injunction application, again as required by ARCP 65.

As you know, the court file in this case was sealed for a number of months, at your client's request, meaning my access to documents either was limited or nonexistent. In the interest of fairness, I trust that you now will respond promptly to my requests for the above documents.

Thank you,

Roger Shuler

I discovered the following on my own: (1) Rob Riley did not file an affidavit; (2) He and Liberty Duke did file security bonds; (3) The file appears to include no evidence that I was personally served, as required by law, with either the TRO or the preliminary injunction. It would seem hard to violate orders that you did not lawfully receive.

The record shows that Rob Riley and Jay Murrill were quick to invade our lives, even though they had zero grounds for doing so under the law. But when questions are headed in their direction--in an effort to determine to what degree they engaged in falsehoods--they are not so quick to respond. In fact, they don't respond at all, and essentially go into hiding.

Now, why would that be?

Georgia woman seeks to pierce the veil of judicial immunity and nail a corrupt judge right in the wallet

Angela Garmley
The doctrine of "judicial immunity" usually is a corrupt judge's best friend. It means that a judge, no matter how badly he cheats a litigant or butchers the law in a particular case, cannot be held accountable via a lawsuit. In other words, a judge is home free in terms of civil liability for any actions taken in his "official capacity."

Judicial immunity, in theory, allows judges to make bold, legally sound decisions--even when they are not popular with powerful interests. In reality, the doctrine provides a license to cheat, even steal. And its victims tend to be the everyday folks immunity supposedly is designed to protect.

Unless a judge acts abominably outside his official capacity--say, by harassing or discriminating against his office staff--or attracts the attention of law enforcement by, say, beating his wife (see Fuller, Mark), he is unaccountable and truly above the law.

A Georgia woman, however, is trying to pierce the veil of judicial immunity and hit a corrupt judge where it hurts--right in the wallet. So far, it looks like she might succeed. She certainly appears to have exposed an extraordinary law-enforcement campaign to retaliate on the judge's behalf. That could turn an already intriguing case into one of the legal stories of the year.

Angela Garmley, of Chatsworth, Georgia, filed a judicial disciplinary complaint in 2012, claiming that Murray County magistrate judge Bryant Cochran had solicited sex in exchange for a favorable ruling in a case she had before him. She went to the press with her story and alleged that Cochran retaliated by planting methamphetamine in a magnet box on the underside of her car, conspiring with sheriff's deputies to frame her for a false arrest. Two deputies eventually pleaded guilty to federal charges of planting the drugs.

At a trial last December, a federal jury sided with Garmley, finding the judge guilty on six counts of civil rights and drug violations. The trial also revealed that Cochran had engaged in a three-year affair with a paralegal who testified at his trial that Cochran had asked her to lie about the affair to state and federal authorities.

The judge has been booted off the bench, but the legal battle is far from over. Garmley filed a civil complaint against Cochran, but a North Georgia judge dismissed it in February 2014. Now, after Cochran's criminal convictions, it looks like the lawsuit might rise again. It appears that Cochran's behavior was so heinous, and so far removed from his courtroom duties, that even judicial immunity won't save him. (See civil complaint at the end of this post.)

Stuart James and McCracken Poston, Garmley's attorneys, filed a motion in January for a judge to reconsider the lawsuit. From the motion:

It would be a strange contortion of the law for Cochran to stand in one courtroom of the United States District Court and have it declared 'not plausible' he committed these acts, yet stand in another courtroom in the same courthouse and have it be declared beyond a reasonable doubt that he violated the plaintiff's rights.

The case took another twist in February 2015 when Garmley, who has acknowledged that she has a methamphetamine problem, pleaded guilty to drug-trafficking charges. Her arrest in that case came last September, roughly two months before Cochran's criminal trial.

Bryant Cochran
Was law enforcement targeting her because of her complaint against a judge? One of Garmley's attorneys said the answer is yes. From an article at the Dalton Daily Caller:

The attorney for a woman who pleaded guilty to distributing meth on Friday says she was targeted by Murray County officials because of her role in bringing down former Murray chief magistrate judge Bryant Cochran. Angela Garmley was sentenced by Judge Jim Wilbanks to 90 days house arrest and 10 years probation. She must also pay a $2,000 fine plus court costs and surcharges, perform 300 hours of community service work, receive drug treatment and have random drug screens.

Garmley’s attorney, McCracken Poston, called that sentence fair.

“She is motivated. She will get the help she needs. It’s a very good sentence,” he said.

But Poston said Garmley had been targeted by law enforcement because she was the star witness in a federal trial of Cochran.

“Nothing excuses her meth activities that go along with her addiction,” said Poston. “They were going after a federal witness. They were trying to discredit a federal witness before she testified against Bryant Cochran. Ironically, this backfired against them because her arrest made her realize she had a problem. And because she recognized that and dealt with it she was a wonderful witness.”

Is law enforcement running out of control in North Georgia. It certainly looks that way. From the Dalton newspaper report:

Garmley was arrested on Sept. 9, 2014, by Dalton police at the Wal-Mart on Shugart Road on a warrant arising from an undercover drug investigation that began in Murray County.

“I don’t know of any other attorney who has had a client who was twice targeted like this by law enforcement,” Poston said.

What will become of Garmley's lawsuit? Will her guilty plea on drug charges hurt her case if it goes before a jury? How much prison time will former judge Cochran receive? Will a judge finally be forced to pay out of his pocket for gross misconduct and violations of constitutional rights?

All of those questions remain unanswered. But that last one will be of particular interest as this drama continues to unfold.

Tuesday, June 23, 2015

Legal analyst says statements from Rob Riley's lawyer are "blindingly ignorant" or "cynically dishonest"

Ken White, of Popehat blog
We already have shown that Alabama Republican Rob Riley made false statements to multiple news outlets (see here and here) about the defamation lawsuit he and lobbyist Liberty Duke brought against my wife and me.

But what about Riley's lawyers in the case, who were from his own Riley Jackson firm--perhaps because no real lawyer would touch such a facially bogus case? What about Jay Murrill, who seemed to be Riley's primary in-house shill? Is he a lawyer with a strong sense of honor and respect for the truth? Uh . . . not exactly.

And you don't have to take my word for it. We will let Ken White, a Los Angeles lawyer and First Amendment expert at the Popehat blog, take the honors.

Popehat is not a good source of information on all topics. On matters that require more than surface research, White tends to become a lazy, name-calling hack. But he does know First Amendment law, and he can recognize a con artist like Jay Murrill when he sees one.

It's unusual for one lawyer to say or write anything negative about a fellow member of the legal tribe--at least in public. But White administers a spanking to Jay Murrill that's unlike anything I've seen before. It came in an article posted roughly three weeks after my arrest on October 23, 2013. The following is from a Popehat post that is based in part on a report by Mike McClanahan of CBS 42 in Birmingham. (Unfortunately, the link to the original CBS 42 piece no longer works.):

This week a local news station reported that on November 14, 2013, the Alabama court held a hearing and indicated that it would issue a permanent injunction finding Shuler's posts about Robert J. Riley, Jr. to be false and ordering him to take them down.

The local station quoted Riley's law partner and attorney James Murrill as dismissing the prior restraint and First Amendment concerns:

Here is the Jay Murrill quote, in all of its "glory":

There's been speculation that the Court's previous orders have infringed on Mr. Shuler's constitutional rights. Actually, libelous speech is not protected by the First Amendment. As the United States Supreme Court ruled in Linn v. United Plant Guard Workers of America, "it must be emphasized that malicious libel enjoys no constitutional protection in any context." Also, the concept of "prior restraint" applies to an action to enjoin speech before it occurs. This lawsuit dealt with speech that had already occurred, and the law allows a plaintiff to seek civil remedies for defamatory speech that has already occurred. All of this is clear if you look at the Court's records, which the Court has now agreed to unseal.

How does Popehat assess the Jay Murrill statement? Well, to say he treats it with disdain would be putting it mildly:

That press statement is either one of the most blindingly ignorant or cynically dishonest I have ever read from an attorney about a case. Riley may be suing Shuler based on past speech. But Riley — through Murrill — sought an injunction that prohibits future speech. That's classic prior restraint. Murrill is simply lying when he suggests that Riley has not litigated to silence Shuler's ongoing and future speech.

Let's make sure we all understand what's being said here--and it comes from Ken White, a California-based expert on the First Amendment. I'm not necessarily a fan of everything White writes, but I think it's understood he is knowledgeable about free-speech issues.

Jay Murrill
White says that Jay Murrill, Rob Riley's lawyer, made statements that are "blindingly ignorant or cynically dishonest" about the lawsuit against Legal Schnauzer. White goes on to flat-out state that Murrill is "simply lying" when he suggests that "Riley has not litigated to silence Shuler's ongoing and future speech."

Bottom line? A well-known expert says Riley's lawsuit was designed to unlawfully shut down my reporting, and Riley's lawyer is lying about it. Also, Riley's lawyer is trying to mislead the public about constitutional issues in the case.

Language from one lawyer, about two other lawyers, does not get much more blunt than that.

Popehat does not address this, but I want to make it clear for the record: Murrill also is lying about the meaning of a prior restraint. It is a restriction on speech prior to a finding at trial that the speech is defamatory--and case law generally holds that such a finding should be made by a jury, not a single judge. The notion that you can enjoin speech before it occurs is absurd; most third graders would know that. In my case, there never was a lawful finding that anything I reported was false or defamatory--and that's because there was no trial, no discovery, no cross-examination, nothing to challenge Riley and Duke's bare assertions in their complaint.

As for Popehat's tendency to go off the rails, let's consider a couple of things he wrote about me in a post dated October 27, 2013, four days after my arrest. First, I should note that White repeatedly states that Alabama Judge Claud Neilson ruled unlawfully by granting a temporary restraining order and preliminary injunction in a defamation case--and then ordered me jailed for "violating" orders that run contrary to more than 200 years of First Amendment law. White, however, can't leave it at that; he has to make assumptions about me, someone he knows nothing about, has never met, and with whom he's never sought an interview, even though I'm easily available. Consider these statements from White:

* White says I am "creepy and crazy," and he claims to have formed that opinion from reading my blog. What, specifically, has White read on my blog that makes him think I'm "creepy and crazy"? White doesn't say; he doesn't cite one example. If White is like most lawyers I've encountered, he's a righteous defender of his "profession"--even though it costs Americans millions of dollars while returning very little in either financial or societal benefit. Perhaps a journalist who knows what he's talking about, and is willing to unmask the legal tribe, is "creepy and crazy" (and threatening) to a guy like Ken White.

* White says I am "a vexatious litigant, a serial pro se abuser of the court system," and he claims to have formed that opinion from researching records of my litigation history. White helpfully provides a footnote with information that he unearthed. But when you check at Footnote 1, you find that White's "research" barely scratched the surface of any case. He apparently accessed PACER to determine the outcome of certain federal cases, and since I "lost" several of them, that makes me vexatious and abusive. White, however, did not take the time, or expend the effort, to see if those cases were lawfully decided. (Answer: They were not, not one of them.) He also did not bother to check any underlying state matters. If those had been correctly decided (and they were not), there would have been no federal cases. White's effort stopped at determining who "won" or "lost" the case, so he really knows nothing about the merits of the cases I presented to the courts.

How's this for irony? White correctly chastises Judge Claud Neilson for repeatedly making unlawful rulings in the Rob Riley/Liberty Duke case. But White apparently assumes Alabama federal judges in those other cases ruled correctly. And he's so sure that Alabama state judges are highly competent, other than Claud Neilson, that he doesn't even bother to check state cases. In Ken White's world, Claud Neilson is an incompetent or corrupt boob, but every other judge in Alabama--federal or state-- is a paragon of legal virtue. Does that make a lick of sense? Of course not. But Ken White can't be bothered to actually research cases that would show judicial corruption in Alabama is widespread and goes way beyond Claud Neilson. It's easier to hurl insults at me.

* Finally, White tries to connect me to an anonymous commenter at Breitbart Unmasked who goes by "RogerS," and White wonders if that person is me. "RogerS" is devoted to urging liberal activist Brett Kimberlin to file a RICO lawsuit against various right-wing bloggers who operate under the Breitbart umbrella--and White has taken up the bloggers' cause, even though their activities have devolved from legitimate criticism and research on Kimberlin to what appear to be harassment and stalking. (The "RogerS" saga is closely associated, in time, with my incarceration, and I will have more on the bizarre episode in an upcoming post.)

In Footnote 5 of his October 27 post, White wonders if "RogerS" is me, in part because he claims we both have a poor understanding of federal civil procedure. I, of course, was not (and am not) "RogerS," but here is what White has to say about me anyway: "Now, I'm not saying that Roger Shuler is definitely RogerS. But I can't help noticing that both like Kimberlin and both have an astoundingly awful grasp of federal law. I'm not just saying Roger Shuler is ignorant of federal civil procedure; it's a dry subject, and there's nothing wrong with learning about other things instead. Rather, Shuler seems to have acquired a positive aversion to correct federal civil procedure, possibly by electrical means."

Where did White get the notion that I "like" Brett Kimberlin? I don't know Brett Kimberlin, and I believe my interaction with him consists of one brief telephone call. I don't "dislike" Brett Kimberlin, and I've written all of one post about his battles with the Breitbart bloggers, noting that (unlike many liberals) Kimberlin doesn't mind fighting back against those who appear to be bullying him.

Where did White get the notion that I have a "positive aversion to correct federal civil procedure"? Again, he doesn't say; he doesn't cite a single example to back that up. Does he examine any of the federal cases involving me and show how U.S. judges, such as William M. Acker Jr. and Abdul Kallon, have repeatedly ruled contrary to simple procedural and case law? Nope, he doesn't do that either.

While I appreciate Popehat's accurate assessment of Jay Murrill and First Amendment law, the lawyer/blogger might be wise to steer clear of complex topics that require the kind of in-depth research to which he apparently has a "positive aversion."

Monday, June 22, 2015

Alabama GOPer Rob Riley has a fractured relationship with the truth, leading to plenty of pointed questions

Rob Riley
We have shown that Alabama Republican Rob Riley lied to The New York Times about the defamation lawsuit he and lobbyist Liberty Duke filed against my wife, Carol, and me. But why should Riley stop there? Why not extend his oily ways to an interview on the same subject with the Committee to Protect Journalists (CPJ), the organization that identified me as the only incarcerated journalist in the western hemisphere for 2013?

CPJ's Sara Rafsky interviewed Riley for an article titled "Censorship in Alabama's Shelby County." It sounds like Riley mostly blew off steam while sidestepping substantive questions, but Rafsky summarized his words with these two paragraphs:

Riley said in a telephone interview he has a right to seek injunctive relief in a defamation case and there is legal precedent for doing so. He said someone who decides "to make up a lie, destroy someone's reputation, that's not journalism."

Riley told CPJ: "Shuler has a history of making up things and writing things that are outlandish lies...I am going to pursue every avenue possible to me in the courts to defend my name, my family and my business. . . . He has no proof this is true. He has just decided to be a cyber-bully and make stuff up and I've had enough."

Let's take a closer look at the first paragraph:

* Riley says he has a right to seek injunctive relief in a defamation case--The truth: No he doesn't. Near v. Minnesota, the "foundational" 1931 U.S. Supreme Court case on the subject, makes it clear that a temporary restraining order and preliminary injunction (Riley sought both) are unlawful prior restraints under the First Amendment. Legal experts ranging from Erwin Chemerinsky on the left to Ken White (of the Popehat blog) on the center/right, have shown that Riley's statement is false.

* Riley says there is legal precedent for seeking injunctive relief in a defamation case--The truth: No there isn't. In its amicus brief to the Alabama court, the ACLU showed that key U.S. Supreme Court decisions prohibiting preliminary injunctions were not presented in the Riley/Duke case, and the injunction itself cites cases that do not support its issuance. (See ACLU brief at the end of this post.) This is from Footnote 4 in the ACLU brief, and we will address this issue further in an upcoming post:

Indeed, not only were these substantial U.S. Supreme Court cases not presented to the Court, the cases cited in the Preliminary Injunction (see p. 2 and n.3) demonstrate that injunctive relief in a defamation case requires a final determination on the merits of the litigation.

Now, let's look at the second paragraph from the CPJ article, where Riley claims that I have "a history of making things up and writing things that are outlandish lies"; he is "going to pursue every avenue possible" to defend his name, family, and business; and I have "no proof this is true."

Riley seems to be frothing at the mouth here, and his statements are so generic that perhaps it would be instructive to consider some followup questions the reporter could have asked:

* If Shuler wrote "outlandish lies" about you, why didn't you file an affidavit stating specifically how Shuler's reporting was false and defamatory? Why did you rely only on an affidavit from Liberty Duke, while you filed no similar sworn statement? Why have you never denied under oath the allegations in Shuler's reporting?

* If you were going to pursue "every avenue possible," why didn't you seek a full adjudication at trial, as spelled out in Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376 (1973)There was no trial in the Shuler case because you didn't seek one, correct?

* Why didn't you pursue the avenue of placing your claim before a jury? Why did you allow Judge Claud Neilson to essentially serve as a one-man censor, in apparent contradiction of Bernard v. Gulf Oil Co., 619 F. 2d 459 (1980). Did you want Neilson to act as censor because he has longstanding ties to Birmingham attorney Bill Baxley, with whom you now are working in the ongoing Lee County grand-jury probe? Was Neilson hand-picked to give you favorable treatment and ensure that you would not have to face scrutiny from a jury--or answer uncomfortable questions under oath?

* You claim Shuler "has no proof this is true," but as plaintiffs, the burden is on you and Ms. Duke to prove the allegations are false, correct? Given that, why did you not engage in the discovery process to prove the allegations are false? Why did you and Ms. Duke not sit for depositions, why were there no interrogatories in this case, why did you not turn over relevant documents (e-mails, text messages, phone records, etc.)? Why did you apparently avoid the discovery process altogether?

* If you are confident about the power of your complaint, why did you try to hide it from the public by insisting that the case file be sealed? You claim that Mr. Shuler reported "lies," but as of now, no jury in any legitimate court of law ever has found his reporting to be false or defamatory, correct?

* You complain about Roger Shuler's reporting, but why did you sue his wife, Carol Shuler? Is this just beating up on an innocent party, someone who had nothing to do with your claims? What does this say about your treatment of women in general? Are you just a bully who happens to wear nice suits?

Wouldn't it be interesting if Sara Rafsky conducted a followup interview with Rob Riley and posed these questions (among others) to him? How long do you suppose Mr. Riley would stay on the phone?

(To be continued)

Thursday, June 18, 2015

Did Alabama officer commit a crime when he initiated a traffic stop to "serve" papers in Rob Riley lawsuit?

Was it a crime for an Alabama deputy to conduct a traffic stop of my wife and me in order to serve us with court papers in the Rob Riley/Liberty Duke defamation lawsuit? Does a recent U.S. Supreme Court decision add to the likelihood that the deputy committed a crime? Was a well-known legal analyst wrong to shrug off the officer's actions as fallout to be expected from "the war on drugs"?

The answer to all three questions appears to be yes--meaning Officer Mike DeHart probably went beyond just a violation of our civil rights into criminal territory.

We already have shown that DeHart's own words on a log of service attempts in the Riley/Duke case suggest he had no probable cause to believe I had committed a traffic violation and no grounds to stop us at all. Even if he did have grounds to make the initial stop, he clearly violated the law by prolonging the stop beyond its original purpose, with no grounds to do so.

Can this amount to criminal behavior? A recent case from Georgia, styled United States v. House 684 F. 3d 1173 (11th Cir., 2012), shows that the answer is yes. Ironically, Birmingham-based federal judge Bill Pryor, who has curious connections to 1990s gay pornography, wrote the opinion in House.

The case involved Stephen G. House, a former officer of the Federal Protective Service who made it a habit to stop people in traffic for no lawful reason. House wound up being convicted in federal district court on eight counts of willfully depriving a person of the constitutional right to be free from unreasonable seizure by a law enforcement officer, 18 U.S.C. § 242. An 11th Circuit panel, headed by Pryor, upheld most of the convictions. Here is the gist of the case against House:

When the driver of a motor vehicle notices blue lights flashing in the rear view mirror, the driver cannot help but feel a sense of dread. The public reposes a special trust in the peace officers we empower to patrol our highways. That power includes the authority to disrupt the flow of motor vehicle traffic, often traveling at high speeds, and the power to detain a driver and vehicle on the side of a road, which can be a dangerous place. This appeal involves a federal officer with limited authority who repeatedly usurped the power to patrol traffic, violated the civil rights of motorists, abused the public trust, and lied about it in official reports.

Much of the section in yellow applies to DeHart's actions against us. And an April 21 U.S. Supreme decision, styled Rodriguez v. United States, adds to the likelihood that DeHart acted unlawfully. Rodriguez involved an officer who prolonged a traffic stop by calling for a drug-sniffing dog, without reasonable suspicion for doing so. Justice Ruth Bader Ginsburg wrote the 6-3 majority opinion, which even right-wing stalwarts John Roberts and Antonin Scalia joined. Among the key findings in Rodriguez (citations omitted):

Beyond determining whether to issue a traffic ticket, an officer’s mission includes “ordinary inquiries incident to [the traffic] stop.” Typically such inquiries involve checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance. These checks serve the same objective as enforcement of the traffic code: ensuring that vehicles on the road are operated safely and responsibly.

A dog sniff, by contrast, is a measure aimed at “detect[ing] evidence of ordinary criminal wrongdoing.” Candidly, the Government acknowledged oral argument that a dog sniff, unlike the routine measures just mentioned, is not an ordinary incident of a traffic stop. Lacking the same close connection to roadway safety as the ordinary inquiries, a dog sniff is not fairly characterized as part of the officer’s traffic mission.

Likewise, serving court papers is not part of an officer's traffic mission--and that adds to the dubious nature of DeHart's actions against us.

What about the legal analyst who got it wrong about our traffic stop? That would be Ken White, the Los Angeles-based author of the Popehat blog. White wrote several posts about my arrest in the Riley/Duke case, correctly noting that it was wildly unlawful under longstanding First Amendment precedent. White also discussed the DeHart traffic stop, but the Popehat analysis there was not so accurate. Here is what White wrote:

Maybe you're outraged because the Sheriff violated Shuler's Fourth Amendment rights by pulling him over to serve him with legal papers on behalf of the son of the former governor of Alabama. If you want to be outraged, it should be because under current law it's probably not a violation of his Fourth Amendment rights.

You can thank the Great War on Drugs for that. [Eighteen] years ago the Supreme Court, in one of its innumerable drug cases, ruled that a cop can run a traffic stop on you on a pretext. That is to say, if cops want to question you, or sniff around your car in hopes of developing probable cause to search it, they can follow you until they think you've broken a traffic law, and stop you for it, even if they would normally never bother with that particular traffic infraction. So: is it outrageous that a deputy would follow Roger Shuler until he (allegedly) broke some traffic law, and then stop him and use that opportunity to serve papers on him? Hell yes. Is it legal? Unfortunately, it probably is.

That case from 18 years ago is styled Whren v. United States, 517 U.S. 806 (1996), and we've written about it here several times. Unfortunately, Popehat's analysis goes awry with the "pretext" concept at the heart of Whren. As we explained in a recent post, it helps to know exactly what is meant by a "pretext traffic stop":

The Web site knowmyrights.org addresses pretext stops and Whren v. United States, 517 U.S. 806 (1996), the primary U.S. Supreme Court (SCOTUS) case on the subject. Here is how knowmyrights.org defines a pretext traffic stop:

A "pretext" or "pretextual" stop is a stop in which the officer detains the citizen for a minor crime (i.e. traffic offense) because the officer actually suspects the person of involvement in another, more significant crime (i.e. drug possession).

That definition is in keeping with Whren, which involved an officer who stopped a vehicle, on the surface, for a traffic violation--but the real reason for the stop was suspicion of illegal drug activity.

It's clear that, by definition, a pretext traffic stop involves suspicion of criminal activity. DeHart never articulated the slightest hint that he suspected criminal activity associated with our car; he wanted to serve court papers--and probably because the case involved Rob Riley--was desperate enough to break the law in the process.

As for Popehat, he addressed our pretext traffic stop in a second post, after a tipster sent him the log of service attempts in our case. (We now have the log, too, and you can view it at the end of this post.) Even Popehat was taken aback by the brazen actions of Shelby County deputies, writing:

One of Roger Shuler's loudest complaints has been that Shelby County Sheriff's deputies pulled him over for the purpose of serving him with papers in Robert R. Riley, Jr.'s defamation suit against him.

Shuler sees that — law enforcement stopping his car and detaining him, however briefly, for the purpose of serving him in a civil case – as a violation of his Fourth Amendment rights against unreasonable search and seizure. In my first post on the subject I pointed out that, regrettably, it probably isn't a Fourth Amendment violation — as part of the Great War on Drugs, the Supreme Court long ago decided that police may make pretextual stops. That is to say, police who wish to ask you questions, or sniff about your car, or otherwise develop probable cause to arrest you or search your car, may stop you for any traffic violation they (purportedly) observe even if under normal circumstances they would not bother to do so. Having stopped you, they may then talk to you and observe you and your car in an effort to develop sufficient cause to take further investigative steps. That doctrine probably allows Shelby County Sheriff's deputies to stop Shuler for a purported traffic violation and, as long as they are lawfully in contact with him, serve him with papers.

What I did not anticipate is how brazen law enforcement has become about this sort of thing. A helpful tipster sent me the Shelby County Sheriff's return of service and log of service attempts. The log generally supports the assertion (admitted by Shuler) that Shuler was evading service of process, which is part of the pattern of nutty pro se conduct that contributed to his trouble. But it also contains this entry describing the eventual traffic stop:


Thanks to the United States Supreme Court, law enforcement can feel free to admit that their traffic stops are pretextual. Thanks, War on Drugs!

While we appreciate Popehat's not-so-subtle digs at Shelby County deputies, it's unfortunate that he is wrong about the actual definition of a pretext stop. (He's also wrong about me admitting to avoiding service.) As we showed above, a pretext stop involves suspicion of criminal activity. That was not present in our case, so Officer DeHart did not conduct a legal pretext stop.

The record shows DeHart certainly violated our civil rights and probably committed a crime as well--and nothing about the "war on drugs" excuses that.