Another Lawsuit Filed Against Mecklenburg Co., NC Sheriff by Former Deputy

Justin Lloyd Claims his Failure to Aid Chipp Bailey’s Campaign Led to Firing

From The Charlotte Observer By Meghan Cooke, May 25, 2012

Another former Mecklenburg County Sheriff’s Office employee is suing Sheriff Chipp Bailey, alleging he was fired after not supporting his 2010 re-election campaign.

The lawsuit says Justin Lloyd of Charlotte was terminated in November 2010, weeks after the election, despite good performance evaluations throughout his 10-year career at the Sheriff’s Office.

Bailey could not be reached for comment Friday, but Sheriff’s Office spokeswoman Julia Rush said Lloyd was not terminated. Rather, he was not reappointed, “which is within the authority of a sheriff,” she said.

The lawsuit, filed two weeks ago in Mecklenburg Superior Court, comes just months after two other ex-employees sued Bailey, saying they too were fired for not contributing to his campaign.

Lloyd’s lawsuit says he was hired by the Sheriff’s Office in 2000 as a detention officer at a county jail. He was later transferred to the intake area and then to immigration and customs enforcement. The suit claims he was an able employee and that he was “instrumental in breaking the case” of ex-Charlotte-Mecklenburg police Officer Marcus Jackson, who pleaded guilty in 2010 to more than a dozen sex-related charges after he was accused of assaulting women while on duty. It wasn’t immediately clear what role Lloyd played in the case.

Bailey, a Democrat who was appointed sheriff in 2008 to replace Jim Pendergraph, ran in 2010 against Republican opponent Christopher Hailey. That year, he admitted to using a county database of his employees to solicit campaign donations and support. The move drew criticism, with some saying he’d violated state law that prohibits employees from using county money, supplies or equipment for partisan purposes. But Bailey disagreed, arguing that the names had been previously downloaded to a disc and his actions didn’t incur any cost for the county.

During Bailey’s re-election campaign, Lloyd said, he received a letter from the sheriff asking for a contribution. Bailey also asked employees to volunteer for his campaign, the suit alleges, and Lloyd’s supervisor told him to buy a ticket to a barbecue fundraiser for Bailey’s campaign.

Lloyd said he did not contribute or volunteer.

The suit claims his termination was “part of a pattern and practice of terminating employees in the Mecklenburg County Sheriff’s Office for political reasons.” He is seeking at least $5 million in compensatory damages and $10,000 in punitive damages.

In January, ex-Sheriff’s Office employees Ivan McLaughlin and Timothy Stanley also sued Bailey, claiming they were fired within two months of the 2010 election as a result of not contributing to Bailey’s campaign.

But Bailey told the Observer that one of the men was fired after a chain of command hearing and the other was simply not reappointed to the position of deputy sheriff.

“Case and statutory law clearly support my authority to terminate or not reappoint either of these employees,” Bailey said in February.

Bailey has said his employees were told how to contribute or volunteer for his campaign but were not encouraged, coerced, threatened or promised anything in return.

“I have almost 1,400 employees and I’m sure not all of them supported me or contributed to my campaign,” he said in February. “I couldn’t possibly keep up with everyone’s politics.”

Rush said Friday that the Sheriff’s Office had not yet obtained a copy of the latest lawsuit and that attorneys will review the allegations when they are received.

Fresno, CA Police Say Man Converted Toy Squirt Gun Into Real Shotgun

Officers Say Super Soaker ‘Zip Gun’ Loaded with Shotgun Shell

Authorities in Fresno, Calif., said they arrested man who was stopped while carrying a Super Soaker water gun that was converted into a working shotgun.

Sgt. Rick de Jong with the Fresno Police Department said two officers spotted 54-year-old Randy Smith while on routine patrol and after approaching him, they discovered that the plastic toy slung around his neck had been turned into a homemade “zip gun” and that it was loaded with a shotgun shell, The Fresno Bee reported.

“He took the Super Soaker apart, was able to fashion a barrel to where he was able to make what’s considered a zip gun, where you can fire one round through it. In this case it was a 20 gauge shotgun shell,” Sgt. Mark Hudson told KMPH-TV.

Smith was booked into the Fresno County Jail on multiple charges, including being a convicted felon in possession of ammunition, a felon in possession of a firearm, manufacture of an illegal weapon and a misdemeanor warrant.

Bill Mayfield, who works at Gilmay Guns in Fresno, told KMPH that unfortunately it only costs about $30 worth of parts to transform a toy weapon into a shotgun.

Read more: http://www.wtae.com/news/national/Police-Man-converted-water-gun-into-shotgun/-/9681152/13710432/-/st5opfz/-/index.html#ixzz1vthLt1aL

Will Jesse and Al Demand a Hate Crime Charge in This Case?

‘This is For You, White Bitch’: Woman Allegedly Attacked While Ordering Lunch at Colorado McDonald’s

From www.theblaze.com, May 22, 2012

A Colorado woman was reportedly attacked by three African-Americans while ordering lunch at a McDonald’s drive-thru in Colorado recently, after she asked one of the alleged attackers not to leave her trash in the parking lot.

“I witnessed this young lady throwing trash out of her car and all I said was that it wasn’t cool,” Shannon, the woman who was seemingly assaulted, explained.

Before she knew it, she said, the woman and her female friend lunged at her, punching her face and pulling her hair through the car’s open window.  Then, in the midst of the confusion, a man interjected himself into the fight, throwing a soda at her.

“This is for you, you white b–ch!  This is a grape soda,” he reportedly said before taking off.

As for the women, Shannon recalled: “She was right in my window just punching me in my face, pulling my hair…She started biting on my hands so severely. I thought she was gonna bite ‘em off actually.”

Watch the whole account, below:

According to Colorado’s 9News, the attack happened in the middle of McDonald’s busy lunch hour, and while there were security cameras in the area, they didn’t catch the alleged beating.

“I don’t feel safe anymore,” Shannon said, though she has been getting her lunch from the McDonald’s for five years.

“If they can do that, they can snap and do something else. Something worse,” Shannon explained.  “I don’t want anybody else to get hurt like I [did].”

To watch a video about this incident, copy and paste the link below into your web-browser:

http://www.theblaze.com/stories/this-is-for-you-white-b-ch-woman-allegedly-attacked-while-ordering-lunch-at-colo-mcdonalds/

‘Anti-Racists’ Attack White Heritage Group in Family Restaurant

From ABC News by Andrew Fies, May 22, 2012

A group of 18 people dressed in black, wearing masks, wielding steel batons and hammers and claiming to be extreme anti-racists allegedly stormed a suburban Chicago family restaurant in broad daylight to assault a meeting of alleged white supremacists, officials said.

• 

  ‘Anti-Racists’ Attack

Ten people were injured and at least three required treatment for head wounds as a result of the attack Saturday at the Ashford House Restaurant in Tinley Park, Ill., a quiet Chicago suburb.  The restaurant sustained $15,000 in damages including broken plates, glasses and furniture.

“I’ve been mayor for 31 years,” Tinley Park Mayor Ed Zabrocki tells ABC News, “and I’ve never heard of anything stranger than this.”

Five of the attackers were caught and have now been charged with aggravated battery, mob action and criminal damage to property, all felonies.  Brothers Jason, Cody and Dylan Sutherlin, along with Alex Stuck and John Tucker are all from Indiana.  The men are connected to the Hoosier Anti-Racist Movement (H.A.R.M.) whose website now claims them as “The Tinley Park 5?.

Meanwhile the targets of their attack were about a dozen members of the Illinois European Heritage Association, a group linked to the “White Pride” group Storm Front.  Two of these victims were also caught up in the police investigation following the incident: Steven Speers of North Dakota was arrested on an outstanding warrant for possession of child pornography and Francis Gilroy of Florida was charged with unlawful possession of a firearm by a felon.

A restaurant surveillance camera captured some of the melee on video and Zabrocki viewed it before it was turned over to prosecutors as evidence in the investigation.

“You see the door opens up, these 15, 18 people walk in. They’ve got hoods on, they’ve got masks on,” Zabrocki said.

While the confrontation itself happens out of the camera’s view, he said, “You see tables moving into view, food spilling on the floor.  You see them marching out and you see some of the waiters taking swings at them.”

Tinley Park police chief Steve Neubauer said neither of the groups involved had any connection to his town or the restaurant and he was struck by the randomness of the incident.

“There was a college graduation luncheon and a shower going on there.  It’s a nice little family restaurant. You take your mother in law there for mother’s day for breakfast,” Neubauer said.

The meeting of the Illinois European Heritage Association had been frequently mentioned on the “White Pride” webforum stormfront.org.  It was called the “5 th Annual White Nationalist Economic summit” and promoted as an opportunity to “work for whites.”

The Southern Poverty Law Center, which monitors extremist group activity, suggested that H.A.R.M. probably matched the names of those organizing the meeting on stormfront.org to those on a membership list of the neo-Nazi National Socialist Movement.  But Beckie Williams, one of the attack victims, told the Chicago Tribune that the charge of racism is “ridiculous” and that her Heritage group was only meeting to discuss “economic hardships.”

Meanwhile Zabrocki said he is angry about this “totally bizarre” incident for the law enforcement and emergency response it has required.

“This is going to cost us a bundle … to our town and a bunch of other towns that responded for you know, a bunch of idiots,” he said. “And I’m referring to both sides.”

Could You Be Sued For Texting with a Driver? Experts Say, ‘Maybe’

From MSNBC by Bob Sullivan, May 22, 2012

Could you be blamed for a car crash because you sent a text message?

A New Jersey judge will decide later this week if the sender of a text message might be partially liable for a horrific auto accident that occurred because the driver was reading that message on his cell phone and drifted into oncoming traffic.

With nearly half a million U.S. drivers injured in distracted driving-related accidents every year, according to the National Highway Traffic Safety Administration, the judge’s decision could have wide-ranging impact in both the legal and digital realms.

While it might seem absurd to blame someone who isn’t even in the car — or anywhere near it — for causing an accident, some legal experts say the plaintiff is on firmer ground than you might think.

Skippy Weinstein, a Morristown-based lawyer, is using similar logic to press the case he filed on behalf of David and Linda Kuber. Both Kubers lost their legs during a 2009 crash in Mine Hill, N.J., after 19-year-old Kyle Best sideswiped their car when driving while texting. Weinstein said Shannon Colonna, who was texting with Best, should also be held responsible for the Kubers’ injuries.

“She was not physically in the vehicle but she was electronically present,” Weinstein told msnbc.com. “She and he were assisting each other in a violation of the law.”

That word “assisting” is at the crux of Weinstein’s novel legal argument.

Most readers will be familiar with the notion of “aiding and abetting” a criminal act and the guilt it brings: the man who knowingly holds the door for the gang is just likely to be convicted of bank robbery as the safe cracker.

More recently, this notion of aiding and abetting has been extended to civil liability cases, too, creating a basis for what’s sometimes called “secondary” or “vicarious” liability. For the past two decades, most civil aiding and abetting cases have been limited to investment and securities fraud: An aggrieved investor might not only sue Bernie Madoff for stealing his money, for example, but also go after a third-party broker who repeatedly executed trades for Madoff. Even if the trader wasn’t profiting from the scheme or part of a “joint enterprise,“ a court might find the trader provided assistance to Madoff, and should have known that someone was likely be injured by his actions.

The aiding and abetting argument in injuries that give rise to lawsuits, known as “torts,” is only beginning to find its way into other kinds of civil cases.

There’s a simple three-pronged test to prove someone is partly to blame for causing an injury by aiding and abetting someone else. It is set out in the Restatement of Torts published by the American Law Institute, which guides most civil courtrooms:

1) The party the defendant assists must do a wrongful act;

2) The party must be generally aware of his or her role in the illegal or “tortuous” act;

3) The party must “substantially assist” in the principal violation.

Weinstein think his argument is easy to make. The driver violated the law by texting while driving. Colonna, the text sender, should have known that Best was driving home from work and had to know texting while driving was a violation, he said. Therefore, it’s hard to argue that a text sender isn’t substantially assisting in the creation of a text message conversation that violates New Jersey’s driving laws.

“That very comfortably satisfies the third prong of the legal test,” he said.

Colonna’s lawyer, Joseph McGlone, doesn’t think the argument has any merit, and has asked Morris County Superior Court Judge David Rand to dismiss the case. Rand is scheduled to rule this week on McGlone’s motion to dismiss the case.

The sender of a text message has no way to control or predict when the recipient will read it, McGlone argues.

“The sender of the text has the right to assume the recipient will read it at a safe time,” McGlone told the local Daily Record  newspaper. www.cmsstage.dailyrecord.com/print/article/20120504/NJNEWS/305040026/Morris-judge-decide-sender-text-liable-receiver-crashes-car?nclick_check=1  “It’s not fair. It’s not reasonable. Shannon Colonna has no way to control when Kyle Best is going to read that message.”

He added that there is no precedent for heaping liability on a person on the other side of a text message conversation that causes injury.

Of course, there’s no precedent for a lot of legal areas in the Digital Age. In situations like this, judges usually turn to analogies. In driving injury cases, the judge has a bushel full to choose from.

For starters, it’s hard to tag liability on anyone who isn’t holding the steering wheel of the car while an accident occurs. Lawyers around the nation have repeatedly tried and failed to make passengers partly responsible for accidents caused by drunken drivers when passengers knowingly get into a car with an intoxicated driver.

There are exceptions, however. A South Carolina court has said a passenger could be judged a “proximate cause” of an injury if the driver and passenger were in some kind of “joint enterprise,” such as the passenger steering the car while the driver presses the gas pedal. www.caselaw.findlaw.com/sc-court-of-appeals/1232828.html

Passengers who have directly encouraged drivers to break the law — by urging them to speed excessively or to drive in the oncoming lane as part of a game, for example — have also been found liable, Weinstein says.

But to find a passenger liable, the South Carolina court said, “The passenger must have an equal right to control the direction and management of the vehicle.” It seems hard to argue that a text message sender has equal ability to control the vehicle as the driver does.

But there are plenty of other situations where someone other than the driver has to pay after an injury accident, an extension of liability called “imputed negligence.” The most common is when the driver is “an agent” of someone else — when a pizza delivery man driving for work causes an accident, his employer is liable.  Parents are often liable for accidents their children cause if they kids are directly under their care.

There’s also concept called “negligent entrustment”: if you knowingly let an unlicensed driver take your auto out for a spin, you will probably be liable for an accident he or she causes.

Neither of those cases fit this situation well, however. So Weinstein has settled on a simpler analogy.

“If she was in the vehicle and put her hands over his eyes so he couldn’t see, she would be liable,” he said. “(Texting with him) is as if she put her hands over his eyes.”

Is texting the digital equivalent of willfully rendering someone blind? To even make that argument, and to press on with the aiding and abetting claim, Weinstein has to persuade the judge that Colonna knew that Best was texting while driving. Colonna’s lawyers are contesting that point, but Weinstein says the pattern of texts between boyfriend and girlfriend make clear that she must have known he was on his way home from work.

But even if he fails on that argument, it’s easy to imagine other lawsuits where evidence of knowledge by the sender could be hard to deny. A driver might directly text, “Hey, I’m driving home,” for example.

That would make a big difference in a case like this, said Robert Mitchell, a Utah-based lawyer and author of a recent article on aiding and abetting claims. www.mitchell-attorneys.com/legal-articles/aiding-and-abetting-liability/

“If there is conclusive evidence that the person sending the text messages to the driver knew the driver was texting while driving, we see no reason why a claim for aiding and abetting the driver’s negligent or reckless conduct could not be made. The case is probably weaker if there is no evidence of actual knowledge, but only evidence of “constructive knowledge“, said Mitchell, referring to a concept that the sender “should have known” the recipient was driving. “Courts disagree over whether constructive knowledge is sufficient to give rise to aiding and abetting liability.”

Courts have found that the contribution by this third party in aiding and abetting cases can’t be slight – it must be “significant.” For example, giving directions to the bank robber probably wouldn’t be substantial enough to get you prosecuted, but telling him what time security guard shifts change could be. And, as with most civil liability cases, the harm caused by the action doesn’t have to be intentional.

Mitchell said this is the critical phrase in the American Law Institute’s guidelines.

“If the encouragement or assistance is a substantial factor in causing the resulting tort, the one giving it is himself a tortfeasor and is responsible for the consequences of the other’s act. This is true both when the act done is (intentional) and when it is merely (negligent),” Mitchell wrote in his review, quoting the guidelines with added parenthesis. In fact, liability exists even if the third-party has no idea he or she is doing something illegal or negligent.

So in Mitchell’s view, it’s a relatively easy to argue that the texter “substantially assisted” the driver in causing the accident.

“The third prong, substantial assistance, would be an easier hurdle to clear (than knowledge) since sending somebody a text message while driving distracts the driver and that distraction may ultimately cause the accident,” he said.  “Of course defenses may include superseding or intervening causes to the underlying tort (the first prong), like bad weather, poor road conditions or visibility, avoiding someone or something on the road.”

Not all experts agree, however. Maryland-based lawyer Bradley Shear, an expert in digital law, openly fretted about how far liability might extend if Weinstein is successful in his novel legal argument.

“What if someone is hopping on a boat, and they look down at a text, slip and drown? What if a doctor gets a text before a surgery that upsets him and he makes a mistake? Is the sender responsible?” he said. “If you start going down that route where are you going to draw the line?”

Mark Rasch, former head of the Justice Department’s Computer Crimes Unit, said he thinks the case will boil down simply into this question: Can anyone really prove that the sender of the text, Colonna, knew that Best would read it while driving? Absent such proof, there is no case, he says.

But he was concerned with the larger issue of extending liability through digital means.

“The real question here is, do we as a society want to impose a duty on the non-driving texter for accidents that happen when a recipient is driving”? “For now, it seems a reasonable place to draw the line at this: The person driving has a duty not to text. And the person on other end of line has no duty unless there are special circumstances.”

One special circumstance he envisioned: A boss or other person in a position of power who received a message from an employee saying, “I can’t text, I’m driving,” but continued to send demanding texts with an implied threat if they weren’t answered quickly.

“The person in the position of authority might have liability then,” said Rasch, now a cybersecurity consultant with Virginia-based CSC Inc.

Complicating matters, juries can apportion liability, and theoretically could find a driver 90 percent responsible and the sender of a text 10 percent responsible. Damages can be similarly apportioned, although the realities of collections means the party with the deepest pockets usually pays the most in damages.

It’s also possible that Congress or state legislatures might create a chain of liability, as states have done with dram shop laws, which make bars liable for injuries and damages caused by patron who are served after they’re drunk.

For his part, Weinstein demurs when asked if he’s trying to set an important legal precedent or make law. He’s just trying to win a case for his client, he said.

“The defense … wants to make this into a cause celebre, but this is not complicated,” he said. “A jury may find I’m wrong and thrown me out on my duff. … All I’m saying is don’t (text) while driving, and don’t assist someone else in texting while driving.”

Softball Tournament to Honor Slain Charlotte-Mecklenburg Officers

From The Charlotte Observer by April Bethea, May 22, 2012

A benefit softball tournament will return to Matthews next month to honor slain Charlotte-Mecklenburg police officers Sean Clark and Jeff Shelton.

The annual tournament, along with a Home Run Derby Contest, is set for June 2-3 at Idlewild Road Park. It’ll feature 16 teams, eight co-ed and eight all-men teams.

Shelton, 35, and Clark, 34, both were fatally shot in 2007 when responding to a disturbance call at the Timber Ridge Apartments in east Charlotte. Demeatrius Montgomery was convicted of two counts of first-degree murder in their death’s and sentenced to two consecutive life prison terms.

The memorial tournament has been held every year since 2007.

Teams can register for the softball tournament for $200, and the Home Run Derby fee is $20 per person.

To learn more, contact Det. Darryl Seegars at 704-241-8343.

What’s Blocking Thousands of Jobs?

Why It Doesn’t Pay To Cooperate With Police

From www.personalliberty.com by Joe Livingston, May 21, 2012

Police officers are trained manipulators. They take classes to learn how to read people’s body language and how to ask open-ended and innocent-sounding questions in order to surreptitiously obtain information they can use against you.

They also have a knowledge of the laws that you don’t possess — and laws differ from State to State, and even from one jurisdiction in a State to another. Police have also been known to invent “laws,” place “evidence” that can be linked to you and twist your words into meaning something you did not intend.

For that reason you should never consent to a police search of your vehicle and never volunteer information when being questioned. Of course, not consenting doesn’t mean you won’t be subjected to an unConstitutional and illegal search, as Nancy Genovese learned.

But two recent cases drive home the point of why it doesn’t pay to cooperate with police: that of Army Lt. Augustine Kim and that of Diane Avera.

Before being deployed to Afghanistan, Kim left his gun collection with his parents in New Jersey. In the summer of 2010, Kim was back in the United States after being injured in a vehicle crash in Afghanistan. He had a medical appointment at Walter Reed Army Medical Center and decided to work a trip from his South Carolina home to his parent’s New Jersey home around the medical center appointment.

He loaded his guns plus some spare parts in the trunk of his Honda Civic and headed to his medical appointment. He got lost in downtown Washington, D.C., and was pulled over by police. The officer said his license had been suspended, but Kim said he was not aware that it had been. It turns out the suspension was a clerical error caused by the State of North Carolina incorrectly reporting to South Carolina that Kim had failed to pay for a ticket.

But because of the erroneous suspension, the D.C. officer called for backup and told Kim he’d have to go to the police station. Then the officer asked if he could search his vehicle. Kim consented because he knew his guns were properly locked in a case, which complied with Federal firearms transportation laws. Kim was handcuffed and made to sit on the curb. He was then booked on four counts of carrying outside the home. Officers told him that he was in violation of registration laws because he admitted to having stopped at Walter Reed. In D.C., having a weapon outside the home is illegal.

In Demopolis, Ala., Avera answered a police officer’s question honestly. It landed her in jail for 40 days — including 17 hours strapped in a restraint chair — and a conviction on a drug charge that carries a sentence of one year in jail and seven years of probation.

Avera had recently taken up the hobby of scuba diving. Her dive instructor had advised her to take pseudoephedrine (Sudafed) to help her equalize pressure on her eardrums and to help her with other sinus issues she experienced while diving. This is a common practice among divers; and Avera had, under advice from her physician, taken pseudoephedrine many times before to treat allergies.

But just weeks before Avera was arrested, a new State ordinance went into effect in her home State of Mississippi that made pseudoephedrine a prescription drug. So Avera drove to Alabama to buy some.

In the car with Avera were her adult son, his girlfriend and their three children. The son and girlfriend bought two boxes of Sudafed from a CVS. Avera bought another at Wal-Mart. As she pulled away from Wal-Mart, Demopolis Police Sgt. Tim Soronen pulled her over. (In Avera’s trial it was revealed the CVS pharmacist was a police informant who tipped off police about the Sudafed purchase.)

“What brings you to Demopolis?” Soronen asked.

“I came over to buy some Sudafed for our scuba diving trip this weekend, since we can’t buy it in Meridian anymore,” Avera replied.

Soronen asked Avera if she knew it was against the law to cross the State line to buy Sudafed. Avera said she did not. Soronen ordered her out of the car.

Using the threat of kidnapping Avera’s grandchildren and putting them into the hands of the State Department of Human Resources, Soronen extorted a confession from Avera that she was buying Sudafed to manufacture crystal methamphetamine. It did not help that her son — a habitual drug user who had been through rehab several times — had a bottle of methadone and a pouch containing drug paraphernalia that police found during a vehicle search.

She was convicted after the trial judge allowed the prosecutor to make entirely unsubstantiated claims. These included that Avera had confessed to having used crystal meth for two years — her former employer, a physician, insisted there was never any indication she was a drug user — and that she had somehow “diluted” drug tests that showed she had no meth in her system.

Avera’s conviction is being appealed, and she is free on a $20,000 bond. But Kim accepted a deal that allowed him to plead guilty of one misdemeanor charge of possessing an unregistered gun with the understanding the charges would be dismissed and his guns and gun parts — worth $10,000 — would be returned if he stayed out of trouble for nine months. Now the Metropolitan Police are refusing to release Kim’s guns.

“The mistake he made was agreeing to a search of his vehicle,” Kim’s attorney Richard Gardiner told The Washington Times. “If the police ask for consent to search, the answer is ‘no.’ If they ask, ‘why not?’ The answer is, ‘no.’”

For most people, encounters with police end with no more than a warning or a ticket. But you never know when you may say or do something that interests the officer enough that he or she wants to take a closer look at who you are and where you’ve been.

Privacy expert and lawyer Mark Nestmann writes in his book, The Lifeboat Strategy to never consent to a vehicle search. He reminds that you do not have to answer an officer’s questions if you are being detained.

From his book:

Say something like, “Officer, I know you want to do your job, but I can’t consent to a search.” A likely response will be, “Why not? What do you have to hide?” You are under no obligation to answer this question. Instead, say something like, “Officer, am I under arrest? If not, I would respectfully ask that you permit me to leave.” If there’s no response, then announce, “Officer, if you’re not detaining me, may I leave?” If the response is “yes,” say “thank you” and leave immediately. If the response is ambiguous, or if your question is answered by another question, repeat your question: “Am I being detained, or may I leave now?”

If the response is “no,” you’re being detained. Police may detain you or your vehicle for a brief time… If you’re detained, you’re under no obligation to answer any questions or consent to a search. You should point that out; but again, in a non-threatening way. One way is to make a joke; e.g., “My lawyer would kill me if I consented to a search without him being present.”… Specifically mention the word “lawyer.” This will end many requests for a search or to answer questions. If not, tell the officer that you want to call your lawyer… If you don’t have a lawyer… Just keep your mouth shut and don’t consent to a search.

Nestmann also recommends you keep your car free from clutter and conceal everything that you want to keep private. If an officer sees something suspicious out in the open, he can get around the need for consent or a warrant and claim probable cause.

Most people now break many laws during the course of their day that they don’t even know exist. The presumption of innocence no longer applies. Over the past several decades, police have become increasingly militarized and increasingly militant and abusive. For years, complaints about abusive police from members of the black community have fallen on deaf ears. Propaganda-induced ignorance will cause many to dismiss this issue still.

Some people are concerned there will come a time in the United States when the military will be brought to bear on the regular citizens in a time of riots or civil unrest. But it’s more likely we should fear the police, who are already showing a proclivity to attack and abuse citizens — including children — and are obviously preparing for civil unrest.

North Carolina House of Representatives Aims to Defend Against Federal Tyranny

From The New American Magazine by Joe Wolverton, II, May 19, 2012

Considering it a crime to not report treason when one witnesses it, earlier this week, a bill was introduced to the North Carolina General Assembly that would declare the National Defense Authorization Act unconstitutional and treasonous.

The resolution’s primary sponsors are State Representatives Glen Bradley and Larry Pittman and their bill was referred on Thursday to the Rules Committee of the North Carolina House of Representatives.

In the text of the measure the NDAA is accurately described as “repugnant to, and destructive of, the Bill of Rights of the United States and the constitutions of the United States and the State of North.” In response to this constitutional insult, the North Carolina bill expresses:

OPPOSITION TO THE PROVISIONS IN THE NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2012  THAT AUTHORIZE, IN DIRECT VIOLATION OF THE UNITED STATES CONSTITUTION AND THE CONSTITUTION OF NORTH CAROLINA, MILITARY DETENTION AND TRIAL OF  UNITED STATES CITIZENS AND LAWFUL  RESIDENTS OF THE UNITED STATES.

Expressly cited in the resolution are Articles I, Section 9 (Habeas Corpus Guarantee); Article III, Section 2 (Right to a Trial by Jury); and Article III, Section 3 (The Definition of Treason). Each of these critical clauses of the Constitution are said to be violated by the NDAA, according to the bill’s authors.

Specifically targeted in H.R. 982 is Section 1021 of the NDAA. Section 1021 places the American military at the disposal of the President for the apprehension, arrest, and detention of those suspected of posing a danger to the homeland (whether inside or outside the borders of the United States and whether the suspect be a citizen or foreigner).  

Furthermore, a key component of the NDAA mandates a frightening grant of immense and unconstitutional power to the executive branch.

Moreover, under the provisions of Section 1021, the President is afforded the absolute power to arrest and detain citizens of the United States without their being informed of any criminal charges, without a trial on the merits of those charges, and without a scintilla of the due process safeguards protected by the Constitution of the United States.

Beyond that, in order to execute the provisions of Section 1021 described in the previous paragraph, subsequent clauses (Section 1022, for example) unlawfully give the President the absolute and unquestionable authority to deploy the armed forces of the United States to apprehend and to indefinitely detain those suspected of threatening the security of the “homeland.” In the language of this legislation, these people are called “covered persons.”

The universe of potential “covered persons” includes every citizen of the United States of America. Any American could one day find himself or herself branded a “belligerent” and thus subject to the complete confiscation of his or her constitutional civil liberties and nearly never-ending incarceration in a military prison.

Courageously, Representatives Bradley and Pittman describe these noxious provisions permitting the permanent imprisonment of American citizens without charge or trial as: “injuries and usurpations, all having in direct object the establishment of an absolute tyranny over these states, are nearly identical to many of the long train of abuses and usurpations that compelled our forefathers to take up arms and to separate from Great Britain, as enumerated in” the Declaration of Independence.”

Recently there has been much discussion of the eradication of the panoply of fundamental principles of liberty by the Congress and its attempts to convert the president into a totalitarian dictator with historic powers to apprehend and indefinitely detain American citizens. This author has questioned whether the permission for the absolute abuse of power soon to be codified as part of the National Defense Authorization Act is not a greater act of tyranny than any perpetrated by George III that precipitated the waging of America’s war for independence.

The “long train of abuses” of which Britain’s crown was accused are enumerated in the Declaration of Independence. This historic indictment of King George III was penned principally by Thomas Jefferson and was laid out in a manner both methodical and lyrical. It stood on the rooftops and decried for the all the world to hear the despotic measures levied against the American colonies by the government of Great Britain.

As our own modern government passes  laws, one after another, eroding the bedrock of freedom upon which our republic was built after the successful waging of the war against English oppression, the specific examples of the abuse of power cited in the Declaration of Independence seem eerily familiar (the North Carolina resolution calls the similarity “shocking and obvious”) and may someday embolden us in our efforts to restore liberty and the constitutional boundaries of government.

For all the foregoing reasons, the North Carolina General Assembly, should it pass H.R. 982, would declare the offensive provisions of the NDAA of 2012, null and void  from their inception and are not enforceable in” their state and would make it the “express policy of  [the state] legislature that no officer, employee, or agent of the State will implement, enforce, or otherwise support, directly or indirectly, any of the  unconstitutional provisions noted  above, and that a violation of such policy will be deemed a violation of his or her oath of office and employment agreement and will subject him or her to disciplinary action up to, and including, termination.”

In light of the failure of the members of the national House of Representatives to fulfill their oaths of office to preserve, protect, and defend the Constitution by repealing the indefinite detention provisions of the NDAA in the 2013 edition, the recorded reasons behind the offering of the North Carolina measure are particularly praiseworthy:

The [North Carolina] House of Representatives recognizes its duty to interpose itself between unconstitutional usurpations by the federal government or its agents and the people of this State, as well as the duty to defend the unalienable natural rights of the people,  both of which are consistent with the Ninth and Tenth Amendments to the Constitution of the United States, and with our oaths to defend the Constitution of the United States and the constitution of this State against all enemies, foreign and domestic.

With North Carolina, there are now 13 states whose legislatures are currently considering some version of anti-NDAA legislation, a fact that brings joy to all those who value our republican form of government and the freedom enjoyed by all Americans.

Pennsylvania Constable Proposes Anti-NDAA Resolution

From The New American Magazine by Joe Wolverton, II, May 22, 2012

Despite the attempts by many to portray the opposition to the National Defense Authorization Act (NDAA) as “absurd,” the ranks of the resistance to this tyrannical act grow larger day by day.

On May 26 at 10 a.m. at a park across the street from the Northumberland County Courthouse in Sunbury, Pennsylvania (pictured at left, along with the county jail), Ed Quiggle, Jr. will add his name to that noble roster by signing an anti-NDAA resolution.

While the broad strokes of the NDAA are by now likely familiar to readers, a brief overview is in order.

Most of what is contained in the over-500-page 2012 version of the NDAA (the 2013 version is working its way through Congress as we speak) is anathema to constitutional liberty. For example, under the provisions of Section 1021, the President is granted the extraordinary power to arrest and detain citizens of the United States without their being informed of any criminal charges, without a trial on the merits of those charges, and without a scintilla of the due process safeguards protected by the Constitution of the United States.

Moreover, in order to execute this immense power, the NDAA unlawfully grants the President the absolute and unquestionable authority to deploy the armed forces of the United States to apprehend and to indefinitely detain those suspected of threatening the security of the “homeland.” In the language of this legislation, these people are called “covered persons.”

Regardless of Republican promises to the contrary, the language of the NDAA places every citizen of the United States within the universe of potential “covered persons.”

Any American could one day find himself or herself branded a “belligerent” and thus subject to the complete confiscation of his or her constitutional civil liberties and nearly never-ending incarceration in a military prison.

Since its inception, concerned citizens and citizen statesmen around the country have offered bills, resolutions, and amendments decrying the despotism perpetuated by the NDAA.

The New American has faithfully chronicled the spread of this patriotic zeal for liberty.

For example, last week we reported on such a proposal working its way through the North Carolina House of Representatives. In H.R. 982, the legislators who sponsored the resolution recognized the duty of their state House to

interpose itself between unconstitutional usurpations by the federal government or its agents and the people of this State, as well as the duty to defend the unalienable natural rights of the people,  both of which are consistent with the Ninth and Tenth Amendments to the Constitution of the United States, and with our oaths to defend the Constitution of the United States and the constitution of this State against all enemies, foreign and domestic.

With North Carolina, there are now 13 states whose legislatures are currently considering or have already passed some version of anti-NDAA legislation, a fact that brings joy to all those who value our republican form of government and the freedom enjoyed by all Americans.

In addition to the many state lawmakers who are riding to the defense of the Constitution, there are a handful of federal representatives courageous enough to defy the powers behind both major political parties by declaring their opposition to the indefinite detention provisions of the NDAA.

As The New American recently recounted, two praiseworthy congressmen tried in vain to impede the progress toward a tyranny of the executive as established by the NDAA.

In a laudable effort to prevent such a scenario from continuing as the law of the land, Republican Representative Justin Amash of Michigan joined forces with Representative Adam Smith (D-Wash.), and offered an amendment to the 2013 iteration of the NDAA that would have explicitly repealed the indefinite detention provisions, as well as one that would have permitted the transfer of prisoners from civilian to military custody.

The Smith-Amash amendment identified and would have closed two very large gaps still present in the NDAA.

First, the Smith-Amash Amendment would have prohibited the indefinite detention of suspects, as well as the conducting of the trials of such suspects before military tribunals. The language in this amendment made it clear that any individual arrested in the United States on charges stemming from the NDAA or the AUMF would be tried in a civilian court and be afforded the complete catalog of constitutional protections.

Second, the Smith-Amash Amendment would have repealed that section of the NDAA that required foreigners suspected of committing terrorist acts be held in military custody, unless they have been granted a specific waiver from the President.

Unfortunately, late last week in a shameful display of disregard for the Constitution, by a vote of 182-238 the House of Representatives rejected the Smith-Amash amendment.

Despite such setbacks, Constable Quiggle is undeterred.

Using language familiar to many other similar resolutions that seek to thwart the enforcement of the NDAA, Quiggle’s resolution lays out his position, giving no quarter to those who would participate in the carrying out of the indefinite detention of Americans living in Sunbury County.

The final paragraph mandates that any state or local official found guilty of aiding or supporting the illegal detention of an American citizen or lawful resident shall be subject “to discipline up to and including termination and potential arrest for assault, battery, kidnapping, unlawful detention, and other unconstitutional actions under the color of law.”

In a press release issued concurrent with Quiggle’s resolution, it is reported that Quiggle was elected in 2011 as a Republican write-in candidate. Quiggle’s purpose in offering the anti-NDAA resolution is described as an obligation under the “oath [sic] to the Constitutions of the U.S. and Pennsylvania” he took upon taking office.

The reason behind the choosing of May 26 as the date for making his declaration is also revealed in the press release:

On May 26th, 1857 Dred Scott was emancipated. Slaves who were taken to states where slavery was illegal, and could be kidnapped and forced to go back with their masters. There were also kidnappings of fugitive slaves who had escaped to the northern states.

And:

[On that date] in 1938 the House Un-American Activities Committee began its first session. The committee would go on to investigate the internment of Japanese-Americans during World War II. The only committee member to oppose the Japanese internment was Rep. Herman Eberharter (D-PA), the rest of the committee seemed to support the internment.

Finally, in defense of his resolution, Constable Quiggle states, “I believe I must follow my conscience and my oath to the U.S. and Pennsylvania Constitutions. Opposing unconstitutional laws is the duty of all Americans. We are on the right side, we are patriotic Americans standing up for our inalienable rights that the government does not have the authority to take away from us.”

“I feel all elected officials need to speak out and do whatever possible to oppose and nullify the NDAA,” he added.

Notably, The John Birch Society is listed in the press release as being one of many groups from across a wide band of the political spectrum “supporting the nullification and repeal of the NDAA.”

It should come as no surprise to readers that Constable Quiggle is a member of the Constitutional Sheriffs and Peace Officers Association.

To learn about the authority of Pennsylvania Constables see the article below:

Pennsylvania Constables Have Significant Arrest Authority

This article delves into the authority of Pennsylvania Constables to affect warrantless arrests for crimes committed in their presence. In future articles we will explore the Constables activities in the areas of Process service, Court Security, Training, Vehicle Code Enforcement, and the display of emergency lighting on Constables vehicles as well as other topics.

Contrary to the beliefs of most citizens, law enforcement officers, and even many Constables themselves, Pennsylvania Constables have full authority to make warrantless arrests for crimes in the Commonwealth.

I stress “warrantless arrests” due to the common belief that the only function of Constables, due mostly to ignorance of the laws and court decisions pertaining to Constables, is serving arrest warrants and other documents issued by the courts.

Most often this belief is expressed by, how should I say, the miscreants of our society? Well, however you say it, the bad guys. Usually they express this belief when they are out & about engaging in their less than honorable pursuits and observe someone in a uniform with a badge. The miscreants will stop what they are doing and look closely at the uniform in an effort to determine if the officer may be able to arrest them. Almost without fail when they determine the officer is a Constable, they say to each other “It’s just a Constable” and they go back to their misdeeds without concern.

This perception of Constables must be corrected as sooner or later a Constable who is on his game is going come across a bad guy who honestly believes a Constable cannot arrest him without a warrant and will resist the Constable when told he is under arrest creating a very dangerous situation for the Constable & the suspect.

In addition, Constables can be a very positive factor in law enforcement’s ever increasingly difficult job of getting the bad guys off the street; if they know and understand the authority they can exercise.

The PA Supreme Court has noted in the case of In Re Act 147 of 1990, 528 PA 460,463 (1991) “Constables are Peace Officers charged with the conservation of the peace, and whose job it is to arrest those who have violated it; It is the Constables job to enforce the law and carry it out, just as the same is the job of District Attorneys, Sheriffs, and the police generally”.

The arrest authority of PA Constables is defined generally in PA law in Title 13 of  the Pennsylvania Consolidated Statutes Annotated, commonly referred to as Purdon’s Statutes (P.S.), 45 et seq. which states: “Constables of the Commonwealth, in addition to the powers already conferred upon them, shall and may, without warrant and upon view, arrest and commit for hearing any and all persons guilty of  a breach of the peace, vagrancy, riotous and disorderly conduct or drunkenness,or who may be engaged in the commission of an unlawful act tending to imperil the personal security or endanger the property of the citizens, or violating municipal ordinances, for the violation of which a fine or penalty is imposed. Any person arrested with or without a warrant, shall be entitled to trial.”

   In The case of Commonwealth v. Frombach, 420 Pa Super. 498 (1992) the PA Superior Court determined that the PA Legislature by 13 P.S. 45 et seq. (above), “Conferred on Constables the power to without warrant and upon view, arrest and commit for hearing any and all persons guilty of a breach of the peace.

A breach of the peace has been defined generally as any of “a great variety of conduct destroying or menacing public order and tranquility. It includes not only violent acts but acts and words likely to produce violence in others” (see 310 U.S. 296, 308) In its broadest sense the term refers to any criminal offense, or at least any indictable offense (see 207 U.S. 425). Breaches of the peace have been defined by state courts as “disturbances of the public peace violative of order and decency or decorum (see 147 N.W. 2d 886,892). And as “any violation of any law enacted to preserve peace and good order” and “signifies disorderly, dangerous conduct disruptive of public peace (see 261 A. 2d 731, 739).

In the case of Commonwealth v. Taylor, 450 Pa. Super. 583, 677 A. 2d 846 (1996)the Superior Court, citing the Constables authority to affect warrantless arrests for breaches of the peace, determined that Constables have the authority make arrests for possession of a controlled substance with intent to deliver. (see also Commonwealth v. Corley, 507 Pa. 540,491 A.2d 829 (1985)) where the court held that a private citizen can affect an arrest when a felony has been committed and the citizen reasonably believes that the person he arrests has committed the felony.

In further exploration of the authority of PA Constables it must be noted that in the case of Commonwealth v. McGavin, 305 Pa. Super. 528, 534, 451 A. 2d 773 (1982)the Superior Court held that the statute authorizing  Constables to make warrantless arrests, 13 P.S. 45 et seq. (above),requires that the offense for which the warrantless arrest is made be an offense that (1) is committed within view of the Constable, and (2) constitutes a breach of the peace (described above).

In a real world scenario this seems to indicate that should a Constable observe 2 men fighting in the street, the Constable has authority to make arrests for disorderly conduct, etc., but should a Constable observe a man sitting on a sidewalk bleeding from his nose and upon investigation learns that the man was assaulted by an identified individual, the Constable should secure the scene & protect the victim from further harm and then would need to contact the law enforcement agency for the jurisdiction so that they could make the arrest on information received from the victim since the Constable did not witness the breach of the peace.

Also, in the bloody nosed victim example above, if the victim or a witness  were to point out the person(s) with whom the victim was fighting, it seems  the Constable would be authorized to detain,  not arrest, the individual(s) for investigative purposes. If the Constable decides to detain, not arrest, the accused individual(s), he would be justified in performing a pat down frisk of the individual(s) in an effort to be certain the individual(s) does  not possess dangerous weapons and he may even place the individual(s) in handcuffs while waiting for the arrival of the jurisdictions law enforcement agency (see Commonwealth v. Leet, 537 Pa. 89, 641 A. 2d 299 (1994); Terry v. Ohio, 392 U.S. 1, 26, 88 S. Ct. 1868 (1968); Ornelas v. United States, 517 U.S. 690, 116 S. Ct. 1657 (1996); United States v. Cortez, 449 U.S. 411, 101 S. Ct. 690 (1981).

In short, based on the court’s language in the McGavin case above, it seems that a Constable has authority to make arrests for crimes in progress that he sees taking place.

However, recall that in the Corley case the court held that “even a private citizen can effect an arrest when a felony has been committed and the citizen reasonably believes that the person he arrests has committed the felony”. Note that the court did not say that the citizen must actually observe the felony being committed. Rather, the court said the citizen can affect an arrest for a felony when the citizen reasonably believes that the person he arrests has committed the felony.

 In summation, Pennsylvania Constables are authorized to affect warrantless arrests for breaches of the peace committed in their presence and may detain for investigative purposes individuals they reasonably believe to be engaged in criminal activity.

In addition, Constables, the same as private citizens, may affect an arrest for a felony if he reasonably believes that a felony has been committed and that the person he has arrested committed the felony.