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These issues become particularly troubling in light of our reports from earlier this week (see here and here) about a letter from attorney David Gespass, who reviewed the Riley/Duke file when it was sealed. The file showed, Gespass stated, that no summons was issued in the case until October 16, 2013, long after Officer Mike DeHart had allegedly "served" us via an unconstitutional traffic stop. The file also showed that as of October 31, the date of Gespass' letter, we had not been served--by DeHart or anyone else. (For the record, there were no other service attempts after the DeHart episode on September 29, so that means we never were served--with or without a summons.)
We will address the legal implications of all this in a moment, but first, let's look at the invasive nature of Alabama deputies' actions against us--and the information comes from the sheriff department's own records.
What did deputies do on our property while trying to "serve" us (even though no summons had been issued) from September 24 to September 29, 2013? Why were deputies so frantic during this six-day period, given that Alabama law generally allots at least 120 days (four months) for service of process in a civil case?
Let's look at what the log reveals. And keep in mind that each visit that we witnessed involved two or three deputies and multiple vehicles. On at least one occasion, they parked an SUV at an angle blocking our driveway, as if to ensure that dangerous criminals could not escape the premises.
(The full log can be viewed at the end of this post. The Gespass letter also can be viewed at the end of this post.):
* On 9/24/13 at 12:36 hours--Deputies look inside our garage-door windows.
* On 9/24/13 at 15:44 hours--Deputies again look inside our garage-door windows.
* On 9/26/13 at 19:56 hours (after dark)--Deputies checked the power meter at the back of our house, opened our mail box to check for mail, and again looked inside our garage-door windows. Being after dark, this was one of multiple occasions in which they shined lights in our windows.
* On 9/26/13 at 20:50 hours (after dark)--This was at almost 9 p.m., and deputies again shined lights in our windows.
* On 9/28/13 at 10:44 hours--Deputies again look inside our garage-door windows.
* On 9/28/13 at 19:11 hours--This probably was after dark or near dark. More looking in the garage, more shining of lights in our windows.
* On 9/29/13 at 12:34 hours--Deputy admits on log to conducting surveillance on our house for approximately two hours. (Do they do this in investigations of a potential drug-trafficking ring? Probably not, and this involved civil papers that were nowhere near the deadline for service.) More looking in the garage.
I'm not an expert on the law that governs process servers (deputies or otherwise) in the course of their work. And I understand that they have a right to knock on the door in an effort to get attention. But do they have a right to walk all around your house (front and back), to look inside your windows repeatedly (sometimes with flashlights), to check your power meter, to check your mailbox, to come multiple times after dark?
Do citizens have at least some expectation of privacy, on their own property, when they are the targets of process servers?
In a country where we seem to treasure "Second Amendment remedies," is it wise to allow this kind of invasion on private property? How many citizens would have taken a pistol or rifle and shot one of these deputies at some point in this process?
I'm a liberal, and I'm not particularly fond of guns--although I'm becoming more and more fond of them with each passing day. Would I blame a citizen who took matters into his own hands against this kind of wildly invasive activity? No, I wouldn't.
Am I starting to see the value of "Second Amendment remedies," especially when cops and the courts have proven they won't protect your rights? Yes, I am.
That brings us back to the shocking revelations in the David Gespass letter. A summons is an extremely important document in any civil case; it's the piece of paper that starts a lawsuit. If a summons has not been issued and served on defendants, the court has no authority to hear the case.
At the time of all this activity on our property, there was no lawsuit, and without a summons, deputies had nothing to "serve." That means they had no legal authority to be on our property--converting their actions from "law-enforcement work" to regular criminality. They probably committed criminal trespass, criminal surveillance, and possibly other state-law violations. Tampering with our mailbox likely constitutes a violation of federal law.
Essentially, we were being terrorized by packs of criminals for six days--all under the guise of "serving" us with a lawsuit that did not exist, with no summons call us to court or creating court authority to hear the case.
19 comments:
There's always been a fine line between cops and criminals. Looks like the cops crossed over that line in this case.
I don't advocate shooting people, especially in light of what happened last night in Louisiana, but these SOBs would have deserved it. I mean going on private property, shining lights in the windows, peering in the garage, when they don't even have proper court papers? It's nuts.
I, for one, certainly appreciate the efforts of Shelby County's finest to serve and protect us from hardened criminals like Mr. and Mrs. Schnauzer. Good work, gentlemen! Thank you for putting our tax dollars to good use!
Thanks for the LOL, Gabby. For the record, these weren't all gentlemen on our property. There were a number of female officers who joined in the fun. There was always at least one male officer, but female officers were in the crowd on several occasions.
I'm sure you already know, but you can only employ deadly force if a reasonable person would feel they are in immediate danger of serious bodily injury or death. A reasonable person would not say that, therefore deadly force isn't justified in the examples you provided.
Just to be clear, my point was not to suggest that opening fire would be the lawful thing to do in such a situation. I haven't researched the matter myself, but I believe your comment represents a pretty accurate statement of the law. I think I've seen law where an apparent intruder has to actually be trying to break into the home to justify use of deadly force. If my memory is correct on that, it would be unlawful to shoot someone who is peering in your windows. It would be lawful to shoot someone who has broken your window and is about to come inside. My guess is this would satisfy the standard you cite of being in "immediate danger of serious bodily injury, etc." Of course, the law probably varies from state to state.
The larger point I was trying to make in the post is this: We are a gun-happy society, and it's dangerous for anyone--law enforcement or not--to repeatedly appear on someone's property and not only knock (or bang) on the door, but also go through all of the other activities described in the post. Is it smart, in a Second Amendment society, to appear on someone's property after dark, bang on the door, yell at the occupants and shine lights in the windows? I would argue that it's not very smart.
Yes, the homeowner might get in trouble with the law for shooting you. But you are still dead.
It's particularly stupid when you have no lawful grounds to be there, which more or less turns you into a prowler. A lot of people in postmodern America will shoot a prowler first and ask questions later. In this case, Rob Riley, and whoever was pulling his strings, obviously did not care about the welfare of these deputies. They caused them (via someone in authority at the sheriff's office) to be sent on these missions, which put the deputies' physical well-being at risk, for no lawful reason.
Does it surprise me that Rob Riley is just a user of others, that he would cause individuals to be put in harm's way because of his political agenda? No. Does it surprise me that Rob Riley would use taxpayer resources in a grossly unlawful fashion, for his own personal agenda? No. Does it surprise me that someone in a position of authority in Shelby County (then sheriff Chris Curry?) would put his own men and women in harm's way for no lawful purpose? No. (Note: Rob Riley serves as legal counsel for Jefferson County Sheriff Mike Hale. Perhaps that's how Riley gained a warped sense of entitlement and influence with law enforcement.)
With this level of corruption, you have individuals who simply don't care about the welfare and rights of others. They don't care about the right Carol and I have to the peaceful enjoyment of our property. And they don't care about the deputies, whose lives were put at risk for a mission that had no grounding in the law.
I find it interesting that multiple officers always were present for these visits "to serve court papers," and at least one often was female. I can insure you that is not normal procedure. No way, a sheriff's dept. sends multiple officers to send court papers. And no way they send them that many times over a 6 day period. Serving lawsuit papers is not that high a priority for sheriff departments. They usually send one officer once or twice, and if that doesn't work, they send the complaint back to the clerk's office so the plaintiff can try a process server or certified mail.
You've stated that you think the real purpose of the visits was to get you to open the door and then arrest both you and Mrs. Schnauzer. The info in this post makes me think you are right. Certainly female officers perform all sorts of duties in police departments these days. But I know for sure that many departments often want a female officer present if a female subject is expected to be arrested.
As a former officer, the more I learn about this, the worse it smells.
I agree that it varies by state and I was providing Alabama law. I always heard Texas had the easiest time justifying shooting a person. I was told, if you believed a person was on your property after sundown is there trying to steal, deadly force was justified. I never bothered looking it up because I don't live in Texas. Alabama is also a stand your ground state, that is you have no duty to retreat from the situation before resorting to deadly force; not limited to your property. If you are outside and someone posses an imminent threat of serious injury or death, as decided by a reasonable person, deadly force is allowed.
I knew you weren't implying that you would shoot them, but some people may not know what the law is and now they have a basis to go with.
Thanks for your insights, @10:34. We had been served with a lawsuit once before, and it was by one deputy, one car, early in the a.m. What we saw on this occasion looked nothing like that, and it convinced us they were not there to serve court papers.
Gespass was wrong. Alacourt shows that a summons was issued in September, well before the 10-16 summons.
You, or someone else, already made this assertion on another post. I invited the first person (you or someone else) to contact me and ID himself so I could arrange to see proof of this. That hasn't happened, so there is not much credibility to go with this.
Aside from that, what Gespass saw when the file was sealed and what the file now shows might be two entirely different things. There has been plenty of time to tamper with that file, so the information it shows is not trustworthy in my mind.
Gespass might be a little goofy, but he's been practicing law for 44 years, and I think he knows how to review a court file. I'm sure he's done it more than I have, more than you have--and probably more than you and I put together.
If he's wrong on such an important matter, why don't you contact HIM, and see what he has to say on the matter.
Keep in mind, he didn't just tell me what the sealed file said, he put it in writing after contacting Riley's law office. Until someone provese otherwise, and I'm not holding my breath, I'm going with Gespass on this one.
Do you see where it says "PREPARED: 09/23/2013" in the bottom left corner of the summons?
No, I don't see it, I've never seen the summons. Why don't you send it to me?
You attached the summons to your post. It is the first document. The one that says "summons" at the top.
Yes, I've seen that, but as I've reported, it can't be legitimate. Just read the information on the summons, which contains the standard Alabama language--that we had 30 days to respond to the complaint. What Officer DeHart gave us, during his unconstitutional traffic stop on 9/29/13, said we were to appear at a hearing the next day (9/30/13), in less than 24 hours. Court records show there was a hearing on that date.
DeHart's own signature and date--plus the fact we were told to appear the next day--conflicts with the clear language in the summons. I know from having viewed the paperwork on 9/29/13 that what we received on that date was not a summons. An Alabama summons says--as this one does--that you have 30 days to answer the complaint. But court records show a hearing was set for 9/30, so this summons can't possibly be correct or legitimate.
David Gespass' written words, based on his review of the sealed file, shows there was no summons issued until 10/16/13. And that is entirely consistent with what we know happened in the case. In fact, the summons was issued on the same day we filed our motion to quash. That motion is what prompted a summons to be issued. My theory is that someone was hoping we wouldn't respond at all, but when we filed the motion to quash, someone said, "Oh crap, we'd better generate a summons so it looks like the court has authority." Pretty quickly, sometime after my arrest, the summons was doctored to make it look legitimate. But it clearly was not.
Gespass is not stupid or senile. He knows what he saw, and he put it in writing long before you, or anyone else, came on the scene to dispute it.
As an aside, the summons/service record embedded in this post did not originate with me. It originally was posted at the Popehat blog, written by California attorney Ken White. You can go to the following URL and click on the link in the fourth paragraph and it will bring up the docs:
http://popehat.com/2013/11/20/an-aside-in-the-roger-shuler-story-fourth-amendment-rights-and-pretext/
That was posted on November 20, 2013. Obviously, I was in jail at the time and did not have access to such information. I only saw the info long after my release from jail and copied it to my own Scribd account for publication on Legal Schnauzer.
But the information from Popehat blog is consistent with David Gespass' words. Gespass said there was no summons until Oct. 16, 2013, and Popehat did not publish one until Nov. 20, 2013.
Being the curious fellow that I am, I wonder about the identification of the "helpful tipster" who sent Ken White this information. Perhaps the "tipster's" goal, and maybe White's goal too (given his ties to the right-wing National Bloggers Club), was to "establish" that a summons had been issued in September, when it really was not issued until Oct. 16. Perhaps White was trying to show the court had authority in the case, when it actually did not.
Here is another curiosity about Ken White's coverage at Popehat, and it comes from his first post on my case, dated Oct. 27, 2013--four days after my arrest and roughly the date of my first meeting with David Gespass. Here is URL of the post:
http://popehat.com/2013/10/27/alabama-blogger-roger-shuler-arrested-for-violation-of-unconstitutional-injunction/
In the 12th paragraph, there is a link to Rob Riley's petition to hold my wife, Carol, and me in contempt. On page 2 of that petition is a reference to the Sept. 30 hearing.
Maybe Ken White isn't smart enough, or he's too busy, to put 2+2 together--but the timeline should have raised red flags in the mind of any semi-attentive person. You've got a "summons," allegedly served on Sept. 29, which shows we had 30 days to answer the complaint. But you've got another document that shows a hearing was held on Sept. 30, in violation of Alabama and the clear language on the summons.
Ken White ran both documents, but he never saw the glaring conflicts between the two? Strange, indeed. Maybe he didn't want to see the conflicts. Maybe he just wanted to get information out there that indicated a legitimate summons had been issued and served, when that had not happened.
Alabama apparently does not have to serve anyone according to the US Constitution, Federal Rules of Civil Procedure, or the Alabama Rules of Civil Procedure. Dumb but required disclosure: I'm not a lawyer, I cannot give legal advice, and only a "competent attorney" licensed to practice in the jurisdiction can give legal advice and is authorized to practice law and whatever else is required so that MOBILE CIRCUIT COURT does not digitally drag me into a state that I have never been to and would never go to in order for their evil officers to try to accuse me of practicing law-- as a pro se defendent in a foreign jurisdiction being forced to represent myself-- I was not served. Because I was not served and they cannot have jurisdiction over Guam, Nevada, Alaska and everywhere else that I was traveling to, they used their magic to do whatever they pleased. In my opinion, these wins are based on technicalities because you were forcibly removed and taken to the jail, they may--with their deformed standards and disorder in the court--argue that you consented. As incredible as it sounds--keep in mind I was dragged from Guam--Alabama can do it on a whim. I think it is unfortunate that they cannot confuse us, Roger. I have read somewhere that when an attorney cannot win, the best thing she can do is confuse the other party. I suppose there is an imaginary exception to perfecting service or perhaps they will try to say that it has to be a "Special Motion to ..." and that, too, cannot be found in the aforementioned authorities.
Sounds like you are having problems with Alabama attempting out-of-state service on you. My understanding is that there is a general notion in the law that if you appear to defend yourself, then you have consented to the court's jurisdiction. In my view, that's why it's important to challenge service if it appears it wasn't done correctly.
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