From: Mark R Ferran [mailto:mrferran@nycap.rr.com]
Sent: Thursday, May 7, 2015 2:17 PM
To: rmaltz@fkks.com; foncellom@dany.nyc.gov; jpaul@bdlaw.com; jmadden@courts.state.ny.us; vchang@wmd-law.com; jkevinmck3@gmail.com; david@newyorkpractice.org
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Subject: Deciding CPLR 3211(a)(7) Motions Without Reading and Considering the Complaint?

Dear David Paul Horowitz, and other members of the New York County Lawyer's Association,

I saw your articles online (e.g., at http://www.nycla.org/PDF/CPLR%20UPDATE%20BOOK.pdf )

Like yourself, I have been especially interested in the mechanics of civil procedure under the CPLR, which I taught to myself at the age of about 18 years old. Later, upon attending Albany Law School, I got an "A+" in Civil Procedure from the late Distinguished Professor David Siegel (West Publishing).

Please pardon me if I have mistaken you for someone who cares about the actual equal application of the Civil Practice Laws and Rules to similarly circumstanced individuals in particular cases (i.e., The Rule of Law), but if you do have more than an abstract interest in the CPLR, you may find the within and attached information of interest, or perhaps you may know someone who would care to know about it, and forward it along to them. Although the Court's deviation from the statutory CPLR 3211(a) duties has occurred in the Third Department, this deviation could be copied in the First Department, especially since one of the Third Department judges involved was recently appointed to the New York Court of Appeals. The Third Department's new Doctrine may be especially of concern to practitioners who practice "Tort" litigation, because the Doctrine effectively erases the State's Tort Law. The new Doctrine may also be of special concern to those who are interested in First Amendment Rights, or Civil Rights, since the Doctrine essentially obliterates the targeted individual's Rights of Petition, Due Process and Equal Protection of the Laws.

The Judges of the Third Department (Trial Court and Appellate Division) have established new ALTERNATIVE method of deciding the right/standing of a Plaintiff "TO SUE" (with respect to any tort cause of action that has accrued to Plaintiff; e.g., for his own loss of PERSONAL PROPERTY or for the trespassory invasion of Premises used and occupied by him to store such Personal Property) without Reading or Considering the Plaintiffs' Complaint.

Under the Statutory (formerly-exclusive) Method prescribed by CPLR 3211(a)(7) (and by the Constitution and Common Law):

The Court is required to Read and Consider the allegations of the Complaint (affording favorable inferences to Plaintiff) determine what if "any" "causes of action" defined by (Tort) law are pleaded in the Plaintiff's Complaint; If the Plaintiff has and states a "cause of action" (that had accrued to him) by Substantive (Tort) Law, then the Plaintiff has a "right to sue" for that cause of action:

     Leon v Martinez, 84 NY2d 83, 87-88 (1994)(“On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction [to determine] whether the facts as allegedfit within any cognizable legal theory.”);

         According to the New York Court Appeals, in LaBello v. Albany Med. Ctr. 85 N.Y.2d 701 (1995): “Our precedents do not support a distinction between ‘having a cause of action’ and ‘having the right to sue’.”  "A cause of action is the right to prosecute an action.  It is not possible for one at the same time to have a cause of action and not to have the right to sue.” “[T]he right to sue is indistinguishable from the very existence of plaintiff's cause of action.” “[A] tort is enforceable when all its elements can be truthfully alleged in a complaint.” “[W]hen all elements of the tort can be truthfully alleged in the complaint, the injured party is legally entitled to issue the complaint [and has] status in a court of law to sue.” “[When] plaintiff [can truthfully] alleg[e] all the elements of the tort in the complaint, [he is] a person entitled to commence an action.”; “Generally, tort claims accrue upon an injury being sustained.” CITY STORE GATES MFG. CORP. v. EMPIRE ROLLING STEEL GATES CORP., 113 A.D.3d 718 (2nd Dep’t Jan. 22, 2014); Accord, Wild v Hayes, 68 AD3d 1412 (3rd Dep’t, 2009) (“rights to sue for damages” “for negligence, trespass” vested “when any such causes of action accrued”).

      It is LEGALLY IMPOSSIBLE to lawfully and constitutionally determine a Plaintiff’s “right to sue” in a tort action without considering the allegations and causes of action of Plaintiff’sCOMPLAINT and his Rovello Affidavit in support of that Complaint.   Windsor v. McVeigh, 93 U.S. 274 (1876) (The party’s pleading was “ordered to be stricken from the files”; The decision “of a court, pronounced against a party without hearing him or giving him an opportunity to be heard, is not a judicial determination of his rights and is not entitled to respect in any other tribunal.” Syllabus). ALL "Parties whose rights are to be affected are entitled to be heard." Baldwin v. Hale, 68 U.S. (1 Wall.) 223, 233 (1863).

    The STATUTORY CPLR Rule is: It cannot be lawfully determined by a Court whether a Plaintiff has a “right to sue” in an “action” for “any” “tort” cause of action until the Court has examined the Complaint and determined what factual allegations are “alleged in the complaint”, and then decides whether the complaint alleges all the “elements” of “any” tort “cause of action cognizable at law”. After that determination is made based upon the allegations of the Complaint, the Court’s jurisdiction can be regularly invoked (e.g., by trial, or by “summary judgment”) to decide whether the allegations of the Complaint supporting each pleaded cause of action are “truthfully alleged”.

    Drezin v Delisser, 17 Misc 3d 706 (2007). (CPLR 3211 prescribes a Duty "to determinewhether the plaintiff's allegations fit within any cognizable legal theory, that is whether the plaintiff has a cause of action.”); A CPLR 3211 motion to dismiss “must be denied if the factual allegations contained within ‘the pleadings' four corners manifest any cause of action cognizable at law.’”[1][1] Quoting Leon, supra, and 511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 NY2d 144, 151-52 (2002); “On a motion to dismiss, under CPLR 7804(f) or CPLR 3211(a)(7), the court must look at the petition/complaint itself, accepting all of its allegations as true, to determine whether a cause of action exists.” In re: NADIA FERRAN v. CITY OF ALBANY (3^rd Dep’t April 10, 2014) (No. 516828) (Acknowledging the mandatory RULE applicable to ALL Plaintiffs, but arbitrarily applying that rule to Only ONE of the Plaintiffs in the action, and denying the Equal Protection of that Rule to the other CoPlaintiff).

Under the Third Department's New Non-Statutory Alternative Method (a Doctrine established in the case of Ferran v. City of Albany) of deciding who shall be allowed "to sue":

At the request of a Defendant moving under color of CPLR 321(a)(7) [or CPLR 3211(a)(3)], the Court 1) singles out one Plaintiff (e.g., among CoPlaintiffs), and applies an abstract "standing to sue" analysis to the targeted Plaintiff without reference to the allegations or causes of action pleaded in the Complaint: 2) ignores the allegations and tort cause(s) of action (e.g., trespass-to-chattels/conversion) pleaded in favor of the targeted Plaintiff in the Plaintiff's Complaint (refuses to Consider the Complaint); 3) identifies a legal interest of a third party (e.g., ownership of premises) that the Plaintiff does not claim; 4) identifies a different (Article 78) cause of action that a Third Party (CoPlaintiff) has that arises from the same set of occurrences and transactions; 5)) ignores the cause(s) of action pleaded in favor of the Targeted Plaintiff in the Plaintiff's Complaint; 6) declares that Plaintiff does not have "standing to sue" as a "Petitioner" upon the different (Article 78) cause of action that a Third Party (CoPlaintiff) has, 7) ignores the allegations and tort cause(s) of action (e.g., trespass-to-chattels/conversion) pleaded in favor of the Plaintiff in the Plaintiff's Complaint (refuses to Consider the Complaint); 8) dismisses Targeted Plaintiff from the action for lack of "standing to sue" without reference to any particular causes of action;

and, 9) if the CoPlaintiffs are pleading Pro Se, the Court summarily declares under color of Judiciary Law s 484 that the Plaintiff is without any First Amendment Right to Co-Petition for Redress of his own Grievances (e.g., loss of his own Personal Property) and 10) ignores All the Tort Causes of Action pleaded in the Complaint as to ALL Co-Plaintiffs; 11) entirely ignores the Second Plaintiff's Tort causes of action, declaring and rendering the State's Tort Law to be no longer "meaningful".

And, after the Appeal:

12) the Trial Court afterwards decides that the abstract prior "lack of standing to sue" determination supports a Defendant's CPLR 3211(a)(3) motion to declare that the human Plaintiff lacks the "legal capacity to sue" (for loss of his own personal property); 13) confirms that the Trial Court "has not and will not" consider any Pleading or papers offered by the Plaintiff on behalf of his own "self" (“any submissions that [Mark Ferran] has made (or may make) as aself-represented litigant … have not been (and will not be) considered.”); 14) renders Plaintiff Civiliter Mortuus (civilly dead) and thus effectively issues a Writ of Outlawry against Plaintiff (rendering him unable to enforce any civil right of property in the Courts).

What is the targeted Plaintiff who cannot get the Court to even Read or Consider the allegations and Tort causes of action Pleaded in his Complaint supposed to do to overcome his unexpected Civiliter Mortuus status? The simplest solution is for the targeted Plaintiff to effectively remove from Office all those Judges that arbitrarily and unconstitutionally refuse to Read or Consider the allegations and causes of action Pleaded his Complaint. However this remedy is difficult for one law abiding Plaintiff or a group of law abiding people to perform and does not necessarily obliterate the written instances of the Decision(s) and Method applied adversely to him.

So, the Outlawed Plaintiff attempts to restore his civil rights by resort to commencing an Action (against the State Court Judges) in the Federal Court.

See attached Amended Complaint filed in U.S. District Court Northern District of New York, and served upon Judge Stein, on May 6, 2015.

Essentially, I would like to see some evidence that the members of the Law Profession who Profit from the practice of Law are also "The Guardians of the Law" as it has been publicly claimed.

I would like to receive some assistance (e.g., in the form of Amicus Briefs, scholarly notice or publications, or an Affidavit of Expert Testimony as to the Normal operation of the CPLR and of the Courts)

And perhaps some help writing a Brief to help me overcome an anticipated Rooker-Feldman Doctrine motion: Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 292 (2005) (Rooker-Feldman does not apply to parallel state and federal litigation);the Supreme Court recently recognized in Lance v. Dennis, 546 U.S. 459 (2006) (per curiam), that its “cases since Feldman have tended to emphasize the narrowness of the Rooker-Feldman rule,” id. at 464.;Rooker-Feldman does not bar a federal plaintiff from asserting as a legal wrong that anadverse party engaged in “conduct which prevent[ed] a [federal plaintiff] from presenting his claim in court.” 359 F.3d at 1140 (quoting Wood v. McEwen, 644 F.2d 797, 801 (9th Cir.1981) (per curiam)).

Or, at least some intelligent criticism or commentary upon the several legal arguments presented.

Or, at the very least, will someone (e.g., foncellom@dany.nyc.gov) please incite the Albany County DA or Bar Association to file a normal criminal prosecution against me under color of Judiciary Law section 484 so that I can have a Meaningful Opportunity to Be Heard (e.g., with respect to whether I have a CPLR/ First Amendment Right to CoPlead Jointly with another Pro Se CoPlaintiff who suffered similar and different tort causes of action arising from the same transactions and occurrences)?

I PASSED the NY Bar Exam with high points in 1996. I also PASSED the US Patent Bar Exam, which is said to be the "hardest" Bar Exam in the US (though I did not think it was hard at all) (And I passed that exam based on self-study alone).

I won my first Trial in Albany Traffic Court when I was 20 years old. I won my first Federal Appeal at age 23 (argued before I began Law School) 21 F.3rd 11 (2nd Cir. 1993), and the Chief Judge of the Federal Court of Appeals said I was a "prodig[y]".

I entered Law School with a 7/8ths full-tuition merit scholarship. I had full-tuition merit scholarships to engineering schools, including Pratt Institute where I studied civil and electrical engineering until I was suddenly punched and knocked down by one among a pack of well-dressed feral black teens near campus.

I got A+ grades in Civil Procedure (From Distinguished Professor David Siegel (West Publishing)), Evidence, Ethics, and Real Property Tax.

As a scientist, and a logic/computer expert, the lawlessness and ignorance of upstate New York's judges was always disconcerting to me, because in the court rooms of upstate New York, the B-students always outnumber the A+student, and together they make-up whatever pretended rules they want, without regard to any set of established rules or laws. It is madness. It is simply disgusting to have to take an appeal to compel a Judge to read and follow the basic law. (I have many reversals on Appeal of State and Federal Judges in upstate New York).

BUT NOW, in upstate New York, it is getting even WORSE, much much worse. (Will you allow this deviancy to happen in New York County?)

Now, in upstate New York you have to file a lawsuit in Federal Court against State Trial and Appellate Judges just to force them to abide by the most elementary of Rules of Law and Civil Procedure: 1) CPLR 3211="READ THE COMPLAINT", and determine what "cause of action" is pleaded, before presuming to determine whether the Plaintiff has a right/standing "to sue" in the matter; 2) "FOLLOW THE LAW" even if that means your favored party will pay for his torts; 3) "DON'T LIE" in your Decision.

This Amended Federal District Court Complaint complains about LAWLESS upstate NY State Court Judges that New York's Governor Andrew Cuomo is fast-tracking up the chain of State Appellate Courts to position them for appointment to the Federal Courts, and even the U.S. Supreme Court, if and when he gets elected to President of the United States.

The Totally-Lawless and dishonest character of these upstate Judges can affect everyone in the United States.

In this Amended Federal District Court Complaint, we have pleaded and Proved that upstate New York State Court judges have LIED in written their decisions and have directly and expressly violated the Statutory and Constitutional Rights of litigants (especially Pro Se litigants) to Plead their Tort causes of action in the State courts against Democrat Machine operatives who employed fraud to transcend the limits of their lawful authority.

I believe that the related state court case being collaterally attacked is the first and only decision rendered by State Judges ever to declare with satisfaction that State Law failed to provide a "meaningful post-deprivation remedy". [Plaintiffs made no such argument. Plaintiffs argued that the Complaint stated a Cause of Action for Fraud, Trespass and Conversion for each Plaintiff] The Judges' declaration (without purporting to fix this problem with State Law that the Judges themselves created) is itself a violation of the Constitutional Duty of the Judges to establish and maintaining meaningful post-deprivation remedies. In this case, they made this absurd declaration as an excuse to IGNORE state law tort (trespass, fraud, conversion) causes of action pleaded against agents of New York's Democrat Machine, preferring to substitute the narrower Federal Section 1983 cause of action, even though Plaintiffs refused to plead such a federal cause of action. Plaintiffs' State Complaint expressly states that Plaintiffs are not pleading any federal causes of action under section 1983. It seems the State Court judges are trying to interfere with the Plaintiffs' right to file a parallel Federal Court action. Plaintiffs seek an injunction against the State Court Judges to restrain them from usurping jurisdiction over the Plaintiffs' Federal Causes of Action.

The Plaintiff Nadia Ferran (my mother) is an octogenarian who owned her mother's brownstone Historic District House at 54 Clinton Avenue in Albany, NY when it was targeted for an illegal "emergency demolition". A roofing contractor torched the roof and burned only "the roof" off of the House. The flat roof simply burned away cleanly. There was no structural damage below the roof level. But, the City Attorney Bradford Burns recommenced a civil engineer that he knew would Lie who then did Lie by stating that there was an invisible "bow" that he "could not see" in the lower front brick wall of the house. After that was verbally challenged by myself, the City Attorney realized that was RIDICULOUS and then the attorney and the engineer destroyed and concealed the engineer's original false report (dated November 14, 2011) and tried to substitute a different false report dated December 13, 2011 that he has REFUSED TO SIGN much less swear to in Affidavit form. After that, in March of 2012 they changed the time/date settings on the engineer's computer, to produce a counterfeit "draft" version of the December 13, 2011 report, to conceal the existence of the original false report (dated November 14, 2011). You can plainly see in the attached PDF print of emails between and the PDF draft "properties" print that the engineer Lanaro changed the date/time settings on his computer to create the false-dated "draft".

After that the Judge Eugene Devine pretended the unsigned false-report letter (December 13) was an Affidavit/Affirmation and the Judge quoted from this False Hearsay paper in his Decision granting Pre-Answer Summary Judgment. Judge Eugene Devine also LIED about the content of the Defendant's only actual "Affidavit" in the case. Judge Devine invented a material false allegation that was not in the Affidavit, was not even argued for by the Defendants' Attorneys, and Devine declared that this fictional allegation was dispositive of the summary judgment. That summary judgment WAS REVERSED on appeal (for lack of "competent evidence), but the Appellate court did not condemn Eugene Devine for LYING in his decision. Five days after this soft reversal was issued, Eugene Devine was appointed to that Appellate Division, and a little while after that, one of these Appellate Judges was appointed to the NY High Court, by Governor Andrew Cuomo. Then a close staff attorney friend of Andrew Cuomo was appointed to hear the State case, replacing Eugene Devine.

Does New York Governor Andrew Cuomo intend to Appoint some these New York Judges to the U.S. Supreme Court and Federal Courts if and when he becomes President of the United States? I think that is his present intention, so even if you are not in New York, it is urgent that you read this Complaint to understand exactly how TOTALLY LAWLESS New York Judges have become, and what that will mean to vulnerable people throughout the United States if they are imposed by Cuomo upon the People of the United States.

The new Arbitrary "Standing" Doctrine invented by these Judges to IGNORE and defeat pleaded Tort (e.g., Fraud, Trespass) causes of action can affect anyone, even parties represented by Attorneys. But this doctrine does even more harm to directly Destroy the constitutional right of Pro Se (in pro per) litigants to PLEAD their causes of action Jointly without being falsely accused of the crime of "unauthorized practice of law".

This Federal Complaint points out the Judge's Lies with particularity and lucidly shows that these Judges are TOTALLY LAWLESS. The relief requested includes a declaration that these JUDGES ARE UNCONSTITUTIONAL, for lack of capacity or intent to KNOW and abide by the LAW of the Land.

The complaint "challeng[es] the constitutionality of state court Judges Eugene P. Devine, Richard M. Platkin, John A. Lahtinen, Leslie Stein, Elizabeth A. Garry, Robert S. Rose."

Because of the nature of the case, the Complaint Pleads Procedural and Substantive LAW, and establishes Constitutional Duty of Judges by reference to Quotations to Constitutional cases.

----- Additional Message -----

Subject: Magna Carta 800th: Unauthorized Deprivations / The Rule of "Conscience"

The 800th Anniversary of Magna Carta (June 15, 2015) is fast approaching. Perhaps you know someone who would be interested to write about the sad circumstance that American citizens today do not enjoy as much protection from lawless rulers as English subjects did 800 years ago, or at the time before the American Revolution.

The Anglo-American concept of The Rule of Law became manifest 800 years ago (1215) in a beseiged King's written Promises called Magna Carta, which ordained that "no freeman" would be intentionally subjected to any unauthorized deprivation of life, liberty or property. The ancient U.S. Supreme Court recognized that

"the terms 'due process of law'... come to us from the law of England, from which country our jurisprudence is to a great extent derived, and their requirement was there designed to secure the subject against the arbitrary action of the crown and place him under the protection of the law."

Dent v. West Virginia, 430 U.S. 651,123 (1888).

https://www.billstclair.com/ferran/markferran1.html

American Colonists at the time of their Revolution also noted that Magna Carta's Promise of LAW also defined the essential difference between free men and slaves:

"When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purelypersonal and arbitrary power. Sovereignty itself is, ...the author and source of law; but, in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And thelaw is the definition and limitation of power. It is, indeed, quite true that there must always be lodged somewhere, and in some person or body, the authority of final decision, and in many cases of mere administration, the responsibility is purely political, no appeal lying except to the ultimate tribunal of the public judgment, exercised either in the pressure of opinion or by means of the suffrage. But the fundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in securing to men the blessings of civilization under the reign of just and equal laws, so that, in the famous language of the Massachusetts Bill of Rights, the government of the commonwealth "may be a government of laws, and not of men." Forthe very idea that one man may be compelled to hold his life, or the means of living, or any material right [e.g., property] essential to the enjoyment of life at the mere will of another seems to beintolerable in any country where freedom prevails, as being the essence of slavery itself."

Yick Wo v. Hopkins, 118 U.S. 356 (1886)
http://www.law.cornell.edu/supremecourt/text/118/356

Thus: Arbitrary Government, where "one man may be compelled to hold his life, or" property "without a rule" and "at the mere will" or "conscience" of another man, is "the essence of slavery itself", and for any man or men "to usurp such authority, is tyranny".

In 1984, the Supreme court announced what is now known as The Doctrine of Unauthorized Deprivation, and officially as The Parratt-Hudson Doctrine, in two prisoner cases. The Doctrine is a misinterpretation of the Constitution to allow Executive and Judicial agents of state and Federal Government to disregard the Law and to intentionally commit "unauthorized deprivations" of Life, Liberty or Property, without violating their Oath of Office as-interpreted. The term "unauthorized deprivation" of "property" is a euphemism for STEALING:

"It is the defendant's contention that the prohibitive conduct under C.R.S.1973, 42-5-104, Theft of Automobile Parts, and the General Theft Statute, C.R.S.1973, 18-4-401, is essentially the same, i. e.,unauthorized deprivation of personal property.

http://law.justia.com/cases/colorado/supreme-court/1977/27145.html

The Supreme Court's Doctrine of Unauthorized Deprivation/Conscience effectively repeals the "Thou Shalt Not Steal" rule of conduct prescribed in Magna Carta that was copied into the Due Process of Law clauses of the Constitution. It would be timely to do a radio show about Magna Carta, and its effective repeal by the Doctrine. Maybe Richard Cordero could comment during his interview.

Attorney-Professor Rosalie Berger Levinson, wrote in "Time to Bury the Shocks the Conscience Test", that

[Long ago] "the Supreme Court ... acknowledged that “the Due Process Clause, like its forebear in the Magna Carta, was ‘intended to secure the individual from the arbitrary exercise of the powers of government’ . . . to prevent governmental power from being ‘used for purposes of oppression.’”

"Historically, Magna Carta was aimed at limiting the power [to commit] arbitrary deprivations of life, liberty, and property by officials, such as police officers, jail guards, public-school educators, public employers, and members of zoning boards. However, the Supreme Court has emasculated its efficacy as a limitation on executive power. In 1998, in County of Sacramento v. Lewis, it held that ... only the most egregious executive misconduct, that which “shocks the conscience,” will be [forbidden]."

http://www.chapman.edu/law/_files/publications/CLR-13-rosalie-berger-levinson.pdf

To fully appreciate the current unprotected condition of American citizens under the Rule of "Conscience", read the Cruz-Erazo case http://caselaw.findlaw.com/us-1st-circuit/1281915.html. In the Cruz-Erazo case it was expressly decided by a Federal Court of Appeals that any time a State or Federal Police Officer or a State or Federal Judge desires a new house, or a vacation home, his Oath of Office leaves him free to simply move into your house, change the locks, and threaten to charge you with "burglary", or SHOOT YOU as a Burglar, if you shall dare attempt to return to your own house consistent with their Oaths of Office; and all the agents of the state or federal government can, consistent with their Oaths of Office, aide and abet them in the withholding of your house or other property, and can even LIE under Oath for that purpose, without violating their Constitutional Oath of Office;. And, the Federal Court Judges who have sworn and undertaken to enforce the Constitutional limitations will not intervene on your behalf. Thus, Police Officers and Judges now claim and have essentially unlimited power to move into your house, or take your car, your cash, your wallet, your phone, and change your locks or passwords, and declare themselves the new "owner" of your things, consistent with their Oaths of Office as-interpreted.

Rosalie Berger Levinson, Reining in Abuses of Executive Power through Substantive Due Process:

"Government officials who act with intent to harm or with deliberate indifference to our rights have been found to engage in conduct that “shocks the judicial conscience” contrary to the guarantee of substantive due process. A burgeoning body of case law, however, has limited substantive due process as a viable restraint on the conduct of officials in the executive branch of government. Some appellate courts have restricted substantive due process to claims involving deprivation of a fundamental right. Others have rejected all claims where only deprivation of property is at stake, or they have dismissed such claims where state law provides a remedy, thus confounding the treatment of procedural and substantive due process claims. Further, the courts have narrowly defined the concept of a duty of care to immunize raw abuses of executive power."

http://www.floridalawreview.com/2010/rosalie-berger-levinson-reining-in-abuses-of-executive-power-through-substantive-due-process/

The basic premise of the Doctrine of Unauthorized Deprivation is that the Property Rights of free citizens are merely equal to the degraded property rights of incarcerated prisoners who have been duly reduced to the status of state's slave pursuant to the "punishment for crime" exception in the 13th Amendment:

"I have difficulty, however, with the majority's conclusion that the district court erred in dismissing Dr. Watts' claim that he was entitled to redress ... for the alleged deprivation of property without due process of law. It is well settled that ..., random destruction of prisoner's property by state prison officials, even if intentional, did not violate the Due Process Clause of the Fourteenth Amendment." citing Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984)."

http://openjurist.org/854/f2d/839/watts-v-h-burkhart

In other words, in the view of the Federal Judges, all Americans are subject to "unauthorized deprivations" (without any regard for Law as a Limitation of Power), exactly like prisoners in prisons are subjected to arbitrary and unauthorized deprivations of property at the mere will of their Masters. This equalization of the rights of freemen down to the illusory privileges of enslaved prisoners is contrary to the Promise of Magna Carta that Law of the Land is only the right of a "free man". The elimination of the Constitutional right of freemen established in Magna Carta was proposed as way to enable the Federal Courts to reduce their caseload (docket reduction). Supposedly, the revokation of Magna Carta in the Federal Courts is justified by the "the availability of state tort remedies" in the state courts. http://openjurist.org/854/f2d/839/watts-v-h-burkhart ("because of the availability of state tort remedies, random destruction of prisoner's property by state prison officials, even if intentional, did not violate the Due Process Clause of the Fourteenth Amendment")

And, local Government Attorneys all over the country ARE SYSTEMATIZING THEFT, and developing stables of expert witnesses and criminal "informants" who are willing to LIE on behalf of government defendants at the drop of a gun.

The local DA in Tenaha Texas made THEFT (by Extortion) into a SYSTEM.

Highway Robbery in Tenaha Texas

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=102x3778183

If they can get complete cooperation among Blue-shirts for the LYING (false-accusation) shakedown in Tenaha (knowingly-false accusations being specifically authorized by Albright v. Oliver which is part of the Doctrine), then their will be places where officers will cooperate together to STEAL as much as they want for their own personal enrichment.

"Law" is "A RULE" of civil conduct. See Blackstone's Commentaries. http://www.constitution.org/tb/tb-1102.htm

Law is the original "civil religion" of America, said Abraham Lincoln.https://www.billstclair.com/ferran/markferran2.html

The American Civil Religion has its roots in the Greek, Roman and Hebrew worship of written "Law" as "a gift from God" that secures "Equal" Justice to every "citizen" (Pericles, 400 BC http://en.wikipedia.org/wiki/Equal_justice_under_law) and makes earthly government More Just and Less Evil than where the life liberty and property of a man is subject to the mere Will and Conscience of Rulers. The English colonists of New England also revered Law (Rules) as the boundary between Good and Evil human government.

"ARBITRARY Government is where a people have men set over them...who have power to govern them, and judge their causes without a rule. God only hath this prerogative; whose sovereignty is absolute, and whose will is a perfect rule, and reason itself; so as for man to usurp such authority, is tyranny...."
Anno Domini 1644

https://www.billstclair.com/ferran/markferran2.html quoting http://www.bartleby.com/43/9.html

The same colony of Englishmen in Massachusetts who condemned "Arbitrary Government" as that which governs "without a rule", ordained the Massachusetts Bill of Rights which defined the rule of "Law" as the distinction between slaves and free men, and promised that the government governing free men of the commonwealth shall "be a government of laws, and not of men." Yick Wo v. Hopkins, 118 U.S. 356 (1886)
http://www.law.cornell.edu/supremecourt/text/118/356

Magna Carta likewise recognized that the essential Promise of rule by "LAW" would be worthless without an organized human system for its constant enforcement, in the from of dedicated "judges", who would religiously read the law and maintain the Promise of Law against the threat of lawless rulers:

"We will not make justiciaries, constables, magistrates, or sheriffs, except of such persons as are knowing in the laws of the realm, and disposed duly to observe them."

Magna Charta, Chapter 52 (King John, 1215).

This Promise was also copied from the BIBLE. https://www.billstclair.com/ferran/markferran1.html

And, there was a time, perhaps even during our lifetimes, when the Federal Courts and Law Professors recognized that Law is a Constitutional Limitation of Executive Power.

"[T]he prohibition against the deprivation of property without due process of law reflects the high value, embedded in our constitutional and political history, that we place on a person's right to enjoy what is his, free of governmental interference."

Fuentes v. Shevin, 407 U.S. 67, 82 (1972) (citing Lynch v. Household Finance Corp., 405 U.S. 538). By the Due Process of Law Clauses of the Constitution, State and Federal Officials are "absolutely prohibited ... to deprive anyone of life, liberty, or property without due process of law." United States v. Lee, 106 U.S. 196, 220 (1882); Tindale v. Wesley, 167 U.S. 204, 217 (1897).

"The enforcement of these limitations by judicial process is the device of self-governing communities to protect the rights of individuals ... as against the violence of public agents transcending the limits of lawful authority, even when acting in the name and wielding the force of the government."

Hurtado v. California, 110 U.S. 516, 535-36 (1884).

It was the religious devotion to the Promises of Magna Carta by dead American Lawyers, Judges and Citizens that once protected Americans from "the violence of public agents transcending the limits of lawful authority".

billstclair.com/ferran/markferran1.html

www.givemeliberty.org/spotlights/archive/march1999/markferran.

But, the Judges and Lawyers and Government Attorneys of our time are no longer educated by Law Schools with the catechism of Magna Carta and its central idea that LAW is a Limitation of Executive Power. billstclair.com/ferran/markferran2.html
htm

The Lawyers and Judges of our time are being taught in Law School that the religion of Magna Carta and of the American Colonists is irrelevant and that NOW only the "Conscience" of our Executive and Juducial Rulers limits their Power to commit intentional deprivations of Life, Liberty and Property. The Lawyers and Judges of our time are being taught in Law School that "Conscience" of our Executive and Judicial Rulers almost NEVER prohbits THEFT of PROPERTY nor PERJURY for that purpose. See two studies by Attorney-Professor Rosalie Berger Levinson:

Attorney-Professor Rosalie Berger Levinson, wrote in "Time to Bury the Shocks the Conscience Test", that

[Long ago] "the Supreme Court ... acknowledged that “the Due Process Clause, like its forebear in the Magna Carta, was ‘intended to secure the individual from the arbitrary exercise of the powers of government’ . . . to prevent governmental power from being ‘used for purposes of oppression.’”

"Historically, Magna Carta was aimed at limiting the power [to commit] arbitrary deprivations of life, liberty, and property by officials, such as police officers, jail guards, public-school educators, public employers, and members of zoning boards. However, the Supreme Court has emasculated its efficacy as a limitation on executive power. In 1998, in County of Sacramento v. Lewis, it held that ... only the most egregious executive misconduct, that which “shocks the conscience,” will be [forbidden]."

http://www.chapman.edu/law/_files/publications/CLR-13-rosalie-berger-levinson.pdf

Contrary to the express promise of Magna Carta' to prohibit rulers from committing intentional property deprivations (i.e., thefts) outside the authority "Of Law", a promise copied in the Fifth and Fourteenth Amendments to the US Constitution, the Federal Courts "have rejected all claims where only deprivation of property is at stake" http://www.floridalawreview.com/2010/rosalie-berger-levinson-reining-in-abuses-of-executive-power-through-substantive-due-process/

A Slave holds his Life, Liberty and Property subject to the mere Will or "Conscience" of his Masters. According to the Promise of Magna Carta, a free man holds and defends his Life, Liberty and Property without compulsion to surrender it at the mere will and conscience of any man.

To fully appreciate the current unprotected condition of American citizens, read the Cruz-Erazocase http://caselaw.findlaw.com/us-1st-circuit/1281915.html. In the Cruz-Erazo case it was expressly decided by a Federal Court of Appeals that any time a State or Federal Police Officer or a State or Federal Judge desires a new house, or a vacation home, his Oath of Office leaves him free to simply move into your house, change the locks, and threaten to charge you with "burglary", or SHOOT YOU as a Burglar, if you shall dare attempt to return to your own house; and all the agents of the state or federal government can, consistent with their Oaths of Office, aide and abet them in the withholding of your house or other property, and can even LIE under Oath for that purpose, without violating their Constitutional Oath of Offic;. And, the Federal Court Judges who have sworn and undertaken to enforce the Constitutional limitations will not intervene on your behalf. Thus, Police Officers and Judges now claim and have essentially unlimited power to move into your house, or take your car, your cash, your wallet, your phone, and change your locks or passwords, and declare themselves the new "owner" of your things.

Rosalie Berger Levinson, Reining in Abuses of Executive Power through Substantive Due Process:

"Government officials who act with intent to harm or with deliberate indifference to our rights have been found to engage in conduct that “shocks the judicial conscience” contrary to the guarantee of substantive due process. A burgeoning body of case law, however, has limited substantive due process as a viable restraint on the conduct of officials in the executive branch of government. Some appellate courts have restricted substantive due process to claims involving deprivation of a fundamental right.

Others have rejected all claims where only deprivation of property is at stake, or they have dismissed such claims where state law provides a remedy, thus confounding the treatment of procedural and substantive due process claims. Further, the courts have narrowly defined the concept of a duty of care to immunize raw abuses of executive power."

http://www.floridalawreview.com/2010/rosalie-berger-levinson-reining-in-abuses-of-executive-power-through-substantive-due-process/

Historically speaking, the Judicial appointments made during the Nixon Administration were the direct cause that the Law/Consent of the Governed Limitation of Executive Power has been erased from the caselaw books. See Part 2, at http://billstclair.com/ferran/markferran2.html

In 1984, the Supreme court announced what is now known as The Doctrine of Unauthorized Deprivation, and officially as The Parratt-Hudson Doctrine, in two prisoner cases. The Doctrine is a misinterpretation of the Constitution to allow Executive and Judicial agents of state and Federal Government to disregard the Law and to intentionally commit "unauthorized deprivations" of Life, Liberty or Property, without violating their Oath of Office as-interpretted. The term "unauthorized deprivation" of "property" is a euphemism for STEALING:

"It is the defendant's contention that the prohibitive conduct under C.R.S.1973, 42-5-104, Theft of Automobile Parts, and the General Theft Statute, C.R.S.1973, 18-4-401, is essentially the same, i. e., unauthorized deprivation of personal property.

http://law.justia.com/cases/colorado/supreme-court/1977/27145.html

"I have difficulty, however, with the majority's conclusion that the district court erred in dismissing Dr. Watts' claim that he was entitled to redress ... for the alleged deprivation of property without due process of law. It is well settled that ..., random destruction of prisoner's property by state prison officials, even if intentional, did not violate the Due Process Clause of the Fourteenth Amendment." citing Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984)."

http://openjurist.org/854/f2d/839/watts-v-h-burkhart

The elimination of the Constitutional right of freemen established in Magna Carta was proposed as way to enable the Federal Courts to reduce their caseload (docket reduction). Supposedly, the revokation of Magna Carta in the Federal Courts is justified by the "the availability of state tort remedies" in the state courts. http://openjurist.org/854/f2d/839/watts-v-h-burkhart ("because of the availability of state tort remedies, random destruction of prisoner's property by state prison officials, even if intentional, did not violate the Due Process Clause of the Fourteenth Amendment")

But NOW, the New York State Court judges are directly quoting and copying the Federal Judges, (now the State Court judges are citing only federal "shocks the conscience" precedents as the rule of decision in cases of abuse of Executive power) and are ignoring the entire body of the state's TORT LAWs, and disregarding the entire body of the Civil Procedure Code. In other words, the State Court Judges are now claiming on behalf of New York Executive agents an Arbitrary Power to exceed their legal authority over Life, Liberty and Property. They now openly claim that the Power of the State Executives and Judges is far beyond the authority conferred by The Consent of the Governed, as long as their law-violations do not shock their own "consciences". They have openly declared themselves ABOVE THE LAW. They have overthrown the self-evident truths of the Declaration of Independence.

It is as if we are in Germany just as Hitler has declared that his "Conscience" or the "Conscience" of his storm troopers shall take precedence over any Statute or Law adopted by or consented to the People's legislature, or any rule consented to by Hitler himself; that all Life, Liberty, and Property is under the arbitrary (rule-less) disposal of Hitler and his storm troopers or agents so long as they do not act too "brutal"; and all eye-witnesses to illegality or brutality shall be subject to "unauthorized deprivations" of their life, liberty and property. And, any eye-witness who comes forward to offer evidence of wrongdoing will be threatened with criminal prosecution for "unauthorized practice of law". And, any Judge or attorney who opposes the new system of lawless government shall be subject to trumped charges of misconduct; and all Judges or Attorneys who Lie and cover-up and violate the rules to facilitate the new system of lawless government shall be rewarded.

The Federal Judges have already overthrown Magna Carta's Rule of Law in the Federal Courts and US Government, replacing our once-constitutional form of government with the ancient and primitive "Rule of Conscience" (i.e., the Rule of Men: only those illegal deprivations that "shock the conscience" of our Masters are forbidden by our newly revised Constitution.

See Cruz-Erazo http://caselaw.findlaw.com/us-1st-circuit/1281915.html (Police and Judges now have unlimited power to move into your house and change your locks and declare themselves the new "owners" of it) I have also found documented cases where state and Federal Judges have allowed Albany City exective officials to unnecessarily and illegally emergency-demolish people's ENTIRE HOMES under false pretenses, or no sufficient pretenses, when only a small defect is present. (This is like the case I am suing upon, false pretenses, false unsworn statements, false hearsay, and falsified documents were employed to manufacture "the appearance of propriety") This monstrous body of lawless precedent is a direct consequence of the Doctrine of Unauthorized Deprivation:

Federal Courts "have rejected all claims where only deprivation of property is at stake" http://www.floridalawreview.com/2010/rosalie-berger-levinson-reining-in-abuses-of-executive-power-through-substantive-due-process/

See e.g.,

Part 2: US Supreme Court Permits "Unauthorized Deprivations" and thereby Declares War Against God and Against The People of the United States

http://billstclair.com/ferran/

Now, the New York State Court judges are directly quoting and copying the Federal Judges, (now the State Court judges are citing only federal "shocks the conscience" precedents as the rule of decision in cases of abuse of Executive power) and are ignoring the entire body of the state's TORT LAWs, and disregarding the entire body of the Civil Procedure Code. In other words, the State Court Judges are now claiming on behalf of New York Executive agents an Arbitrary Power to exceed their legal authority over Life, Liberty and Property. They now openly claim that the Power of the State Executives and Judges is far beyond the authorityconferred by The Consent of the Governed, as long as their law-violations do not shock their own "consciences". They have openly declared themselves ABOVE THE LAW. They have overthrown the self-evident truths of the Declaration of Independence. This is the Doomsday Scenario referred to by dissenter Judge Kozinski in Silveira v. Lockyer

The situation in New York as the Doomsday Scenario referred to by dissenter Kozinski in Silveira v. Lockyer

http://openjurist.org/328/f3d/567/silveira-v-lockyer

"The majority falls prey to the delusion — popular in some circles — that ordinary people are too careless and stupid to own guns, and we would be far better off leaving all weapons in the hands of professionals on the government payroll. But the simple truth — born of experience — is that tyranny thrives best where government need not fear the wrath of an armed people. Our own sorry history bears this out: Disarmament was the tool of choice for subjugating both slaves and free blacks in the South. In Florida, patrols searched blacks' homes for weapons, confiscated those found and punished their owners without judicial process. See Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 Geo. L.J. 309, 338 (1991). In the North, by contrast, blacks exercised their right to bear arms to defend against racial mob violence. Id. at 341-42. As Chief Justice Taney well appreciated, the institution of slavery required a class of people who lacked the means to resist. See Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 417, 15 L.Ed. 691 (1857) (finding black citizenship unthinkable because it would give blacks the right to "keep and carry arms wherever they went"). A revolt by Nat Turner and a few dozen other armed blacks could be put down without much difficulty; one by four million armed blacks would have meant big trouble.

All too many of the other great tragedies of history — Stalin's atrocities, the killing fields of Cambodia, the Holocaust, to name but a few — were perpetrated by armed troops against unarmed populations. Many could well have been avoided or mitigated, had the perpetrators known their intended victims were equipped with a rifle and twenty bullets apiece, as the Militia Act required here. See Kleinfeld Dissent at 578-579.

If a few hundred Jewish fighters in the Warsaw Ghetto could hold off the Wehrmacht for almost a month with only a handful of weapons, six million Jews armed with rifles could not so easily have been herded into cattle cars.

My excellent colleagues have forgotten these bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed — where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.

Fortunately, the Framers were wise enough to entrench the right of the people to keep and bear arms within our constitutional structure. The purpose and importance of that right was still fresh in their minds, and they spelled it out clearly so it would not be forgotten. Despite the panel's mighty struggle to erase these words, they remain, and the people themselves can read what they say plainly enough:

The Doctrine of Unauthorized Deprivation and the cases coming out of the Capital District of New York prove the Wisdom of the Second Amendment.

The Doctrine of Unauthorized Deprivation (the idea that LAW is NOT a Limitation of Executive Power), is being used to destroy other express promises of the US Constitution and Bill of Rights, including the Fourth Amendment and the Just Compensation Clauses. Unlike the Due Process of Law Clauses, which absolutely prohibit all arbitrary and unlawful deprivations of life, liberty, and property, it is said that the Takings/Just Compensation Clause of the Fifth Amendment "is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking." First English Evangelical Lutheran Church of Glendale, v. County of Los Angeles, 482 U.S. 304, 107 S.Ct. 2378 (1987). But, what is left of the Just Compensation Promise if the executive agents of government are allowed to use illegal actions, false accusations, false prosecutions, and illegal or unequal burdens to extort private property from individuals without payment of any compensation?

In the Frank Robbins case, the Supreme Court essentially instututionalized THEFT-and-Perjury-on-behalf-of-the-government in much the same way that the first branch of the Doctrine of Unauthorized Deprivation specifically condones Theft and Robbery and Perjury for the enrichment of individual rulers and groups of rulers.

"thereafter, a BLM employee asked Robbins to reinstate its easement without offering him any compensation. According to Robbins, when he declined, BLM employees embarked on a series of retaliatory acts and harassment to coerce him into granting the easement: for example, they brought false criminal charges, ..., trespassed on his property, and harassed his [business] guests ...."

Investigative Blogger ~ Reverend Crystal Cox

Thursday, May 7, 2015

Information and Case Law for Those Interested

Highway Robbery in Tenaha Texas

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