Tuesday, April 7, 2020

Jared Kushner sparks outrage with his bogus statements about the Strategic National Stockpile, but he isn't the only con artist operating under the federal banner -- U.S. courts are filled with reptilian types

Jared Kushner

The liberal wing of the social-media world lit up with aparks of outrage over the weekend after presidential son-in-law and senior adviser Jared Kushner stated late last week that the Strategic National Stockpile of medical supplies was "our stockpile," meaning it was for the federal government and not for states to use during a a public-health crisis, such as the current coronavirus outbreak.

Was Kushner's statement correct? Not even close. Per The Washington Post, here is the actual language that describes the stockpile's purpose:

According to the U.S. Department of Health and Human Services (HHS), the role of the Strategic National Stockpile" is to supplement state and local supplies during public health emergencies.”

So, faced with an obviously false statement from Jared Kushner, what did the Trump administration do? It had HHS change its online stockpile language to more or less fit what Kushner had said. That set off a new round of liberal outrage on social media, perhaps because those who were angry figured this was an unusual example of such chicanery from the federal government. They were right to be angry, but they were wrong about such chicanery from the feds being unusual.

In essence, the Trump administration changed the rules in the middle of the game, to better suit its purposes. I've seen this kind of corruption in federal courts over and over, during a span of roughly 12 years -- where federal judges ignore black-letter precedent and create law of their own to produce a desired result.

The most recent example comes in "The Jail Case," a federal lawsuit Mrs. Schnauzer and I filed after Alabama deputies broke into our home, beat me up in our garage, and hauled me for a five-month stay in the Shelby County Jail -- all for blogging accurately about matters GOP thugs found politically distasteful.

Virginia Emerson Hopkins
 U.S. Judge Virginia Emerson Hopkins (Northern District of Alabama) "pulled  a Kushner" by dismissing our case based on wildly incorrect assertions of the law. Hopkins' hatchet job focused on two primary issues -- the statute of limitations and state immunity, where Hopkins found the deputies enjoyed immunity to break into our home and beat me up -- all with no sign of a warrant -- over a 100 percent civil matter, alleged defamation. Let's take a look at how Hopkins "pulled a Kushner. (Note: Hopkins memorandum opinion dismissing the case, and our appellate brief in response to it, are embedded at the end of this post):

Statute of Limitations (SOL)

With a judge who has any integrity -- and takes her oath to uphold the law seriously -- this should be a simple, straightforward issue that is hard to get wrong -- we either filed our lawsuit on time or we didn't. But that's not how it works with Hopkins, who essentially bought a seat on the federal bench via campaign donations to George W. Bush and U.S. Sens. Richard Shelby (R-AL) and Jeff Sessions (R-AL) Here is how we described her actions on the SOL issue in our ppellate brief:

Judge Virginia Emerson Hopkins, in the U.S. district court, erred by dismissing the Shulers’ federal claims (Counts 1-6) as time barred by Alabama’s two-year SOL for personal-injury cases, which governs most Sec. 1983 cases in the state. But Hopkins overlooks the fact that accrual of the SOL is governed by federal law (Holland v. Georgia, 11th Cir., 2016), which points to exceptions in cases, such as the Shulers’, involving allegations of false arrest and imprisonment. The statute of limitations for a Sec. 1983 case alleging false arrest and false imprisonment is governed by the following federal standard -- Wallace v. Kato, 549 US 384 (2007). In Kato, the nation’s highest court held: “The statute of limitations in a § 1983 suit is that provided by the State for personal-injury torts, e.g., Owens v. Okure, 488 U.S. 235, 249-250, 109 S.Ct. 573, 102 L.Ed.2d 594 . . . For false imprisonment and its subspecies false arrest, "[t]he... cause[s] of action ... provid[ing] the closest analogy to claims of the type considered here," Heck v. Humphrey, 512 U.S. 477, 484, 114 S.Ct. 2364, 129 L.Ed.2d 383, the statute of limitations begins to run when the alleged false imprisonment ends, see, e.g., 4 Restatement (Second) of Torts § 899.” This principle already has been correctly applied in the Northern District of Alabama – holding the SOL begins to run when the false imprisonment ends, which in the Shulers’ case was March 26, 2014, with their complaint timely filed on March 26, 2016. In James v. City of Birmingham (ND of AL, 2012), the court held: “As to Count Two, alleging false imprisonment, the running of the statute of limitations on false imprisonment is subject to a distinctive rule--dictated, perhaps, by the reality that the victim may not be able to sue while he is still imprisoned: ‘Limitations begin to run against an action for false imprisonment when the alleged false imprisonment ends.’” Wallace, 549 U.S. at 389 (quoting 2 H. Wood, Limitation of Actions § 187d (4), p. 878 (rev. 4th ed. 1916). The record is clear that Hopkins is out of touch with her own colleagues.

It is undisputed my incarceration ended on March 26, 2014 -- meaning the SOL accrued on that date --,and we filed our lawsuit on March 26, 2016, inside the two-year statute of  limitations. Hopkins ruled contrary to precedent from the U.S. Supreme Court, the U.S. Eleventh Circuit, and the Northern District of Alabama. That is quite a feat, one even Jared kushner probably could not imagine attempting.

On top of that, Hopkins' ruling runs contrary to the Restatement of Torts, which is a compendium of the U.S. common law, as we point out in our appellate brief:

Does other authority show that Hopkins erred on the SOL issue in Shuler? The answer is yes. The Restatement of Torts, Second is a treatise issued by the American Law Institute, and it summarizes the general principles of U.S. common law. The volumes covering torts are part of the Second Restatement of the Law series. The Restatement has been cited as controlling law in hundreds (thousands?) of Alabama cases. [See Wilson v. Birmingham Post Co., 482 So. 2d 1209 (Ala. Sup. Ct., 1986); American Road Service Co. v. Inmon, 394 So.2d 361 (Ala. Sup. Ct., 1980); DeStafney v. University of Alabama, 413 So.2d 391 (Ala. Sup. Ct., 1981); and Harper v. Regency Development Co., 399 So.2d 248 (1981), plus many others.]

The Restatement is clear that cases involving false arrest and false imprisonment accrue when the imprisonment ends. New Mexico courts, like their sister courts (federal and state) in Alabama rely on Restatement of Torts, with an example being a case styled Gose v. Board of McKinley County Commissioners, 727 F. Supp. 2d 1256 (D.N.M. 2010). From Gose: “For false imprisonment, the statute [of limitations] begins to run only when the imprisonment ends, since the period of imprisonment is treated as a unit." Restatement (Second) of Torts § 899, (1979). See Wallace v. Kato, 549 U.S. at 389, 127 S. Ct. 1091 ("The running of the statute of limitations on [common-law] false imprisonment is subject to a distinctive rule—dictated, perhaps, by the reality that the victim may not be able to sue while he is still imprisoned."). The Restatement (Second) of Torts does not state when an action for false arrest accrues. The Restatement, however, appears to treat false arrest as a part of false imprisonment. See Restatement (Second) of Torts Index at 530 ("False Arrest: See False Imprisonment").According to the Restatement (Second) of Torts: "If there is nothing more than the false arrest and the accused is released without any further proceeding, his remedy is an action for false imprisonment." Restatement (Second) of Torts § 654. Because the Restatement’s finding is based on “the reality that a victim [of false imprisonment/arrest] may not be able to sue while still imprisoned,” the Shulers’ related federal claims (and state claims, for that matter) accrue when Roger Shuler’s incarceration ended, which was on March 26, 2014, and this complaint was timely filed on March 26, 2016.

The Gose court cites other authorities on the issue of accrual in federal cases involving false imprisonment/arrest: “M.C. Dransfield, When Statute of Limitations Begins to Run Against Action for False Imprisonment or False Arrest, 49 A.L.R. 2d 922 (2010) (citing cases). See Stafford v. Muster, 582 S.W.2d at 680 (stating that, for "false imprisonment in particular, the authorities overwhelmingly hold that a cause of action for false imprisonment accrues on the discharge from imprisonment"). Again, Roger Shuler was discharged from imprisonment on March 26, 2014, and the Shulers’ complaint was filed on March 26, 2016, meeting the two-year statute of limitations.

It's hard to imagine any judge screwing up the SOL issue more than Hopkins did here. But that was not her only major blunder in "The Jail Case."

State Immunity

Hopkins hatchet job on immunity rivals that on the SOL issue, as we explain in our appellate brief:

Hopkins butchery of the state-immunity issues regarding law-enforcement officers is staggering. First, she errs regarding the burden of proving a defendant is entitled to state immunity, especially immunity based on claims of working within the line and scope of employment. Hopkins puts the burden on the Shulers, writing: “Plaintiffs do not dispute that the defendants (Sheriff Curry, Deputy Sheriff Blevins, and Deputy Sheriff Valenti) were acting in the course and scope of their employment when the complained-of touching allegedly occurred.” The Alabama Supreme Court, however, has adopted a burden-shifting framework for establishing a right to immunity, per Ex parte Estate of Reynolds, 946 So. 2d 450 (Ala., 2006): “A defendant initially bears the burden of demonstrating that he was acting in a function that would entitle him to immunity.” In this case, the defendants hold the burden of proving they were acting within the line and scope of their employment, and they have not come close to doing that, making dismissal on this issue improper. In fact, the Alabama Supreme Court has held that a determination on immunity for deputies cannot be made without discovery, so again, dismissal is improper and outside the law. From Ex parte Haralson, 853 So. 2d 928 (Ala., 2009): “The Court cannot conclude, at this early stage of the proceedings, without evidence showing that at the time of the accident, [the deputy] was acting within the line and scope of his employment, that [the deputy] is entitled to immunity.” No such evidence has been produced in the instant case, so the Shelby County sheriff officials are not entitled to a finding in their favor on immunity.

How many different ways did the deputies violate the law in the course of my arrest? The answer is "many," but the most important might have been this, as we addressed in our brief:

Speaking of warrants, the U.S. Supreme Court’s finding in Payton v. New York, 455 U.S. 537 (1980) “prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest." The deputies’ entry into the Shulers’ home was warrantless and nonconsensual and did not involve a criminal arrest, much less a felony arrest.” Bottom line: The Shelby County deputies violated at least two rulings of the nation’s highest court – rulings that invoked the First and Fourth Amendments – and the force used (for an unlawful arrest) was illegal, per Jackson v. Sauls, 206 F. 3d 1156 (11th Cir., 2000). (" . . . if a stop or arrest is illegal, then there is no basis for any threat or any use of force, and an excessive force claim would always arise but only collaterally from the illegal stop or arrest claim.") The deputies, in essence, acted like terrorists, violating one law after another – both state and federal. They have not, and cannot, show that it is within the line and scope of their employment to break the law and trample constitutional rights.

Hopkins essentially found that sheriff's deputies enjoy immunity, even when they violate laws with impunity. Both state and federal courts say she is wrong:

Further, the Alabama Supreme Court held in Phillips v. Thomas, 555 So. 2d 81 (Ala., 1989): “This Court has recognized that a state officer or employee may not escape individual tort liability by ‘arguing that his mere status as a state official cloaks him with the state's constitutional immunity. . . .’ Clearly, a state officer or employee is not protected by § 14 when he acts willfully, maliciously, illegally, fraudulently, in bad faith, beyond his authority, or under a mistaken interpretation of the law.”

The U.S. Eleventh Circuit has held in Grider v. City of Auburn, 618 F. 3d 1240 (11th Cir., 2010) that Alabama recognizes two kinds of state immunity – state-agent immunity and discretionary-function immunity, which applies to law-enforcement officers. The Grider court shows that immunity for law-enforcement officers can be pierced by a test set out in Ex parte Cranman, 792 So. 2d 392 (Ala., 2000). From Grider: Cranman's test for state-agent immunity also governs whether law enforcement officers are entitled to statutory, discretionary-function immunity. This includes the Reynolds burden-shifting framework, first requiring the defendant law enforcement officer to show that he was acting within the ambit of his discretionary functions and then shifting the burden to the plaintiff to show "bad intent" — that the officer acted willfully, maliciously, fraudulently, in bad faith, or beyond his or her authority — in order to defeat the officer's discretionary-function immunity.”

My point here is not to defend Jared Kushner; I find him to be a despicable child of privilege who is arrogant enough to think he can take on tasks for which he is wholly unqualified. The point is that Kuhner hardly is the only con artist operating under the federal flag; U.S. courts are filled with them, at both the trial and appellate levels.

Speaking of appeals, our case has gone to the Eleventh Circuit (Alabama, Georgia, Florida). How did that august body handle the issues noted above? Long-time readers probably can make educated guesses about that one. We will provide details in an upcoming post.

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