CIVIL LIABILITY FOR GOVERNMENT WRONGDOING

CIVIL LIABILITY FOR GOVERNMENT WRONGDOING
"It's dangerous to be right when the government is wrong." (Voltaire)

Suing the government is the second most popular indoor sport in America, and police are often the targets of lawsuits, with over 30,000 civil actions filed against them every year, between 4-8% of them resulting in an unfavorable verdict, where the average jury award is $2 million. This isn't even counting the hundreds of cases settled thru out-of-court settlements, which probably runs in the hundreds of millions and involves about half of all cases filed. It may take up to five years to settle a police liability case.

When police fail to perform their duties, perform them negligently, or abuse their authority, the possibility of civil liability exists. Unlike criminal cases, liability cases are tried in civil court. It's common to name everyone associated with the injury or damage as the defendant (officers, supervisors, agencies, even the government entity) in order to reach the "deep pockets". Chances are the higher-ups will have the ability to pay larger awards either personally or by raising taxes.

There are two (2) ways to sue the police. One, the lawsuit may be filed in state court as a tort law claim. This is the preferred method since torts can only be settled by money awards and the standard of proof is preponderance of the evidence, a standard much lower to convict than in a criminal case. Two, the lawsuit may be filed in federal court as a violation of Title 42 of the United States Code, Section 1983. This is referred to as a civil rights claim, and is essentially a charge that someone has had their constitutional rights violated. States cannot be sued in a civil rights claim, but municipalities and sheriffs can be sued if they are (a) acting under color of state law, and (b) violating a specific Amendment right in the Constitution. The standards under federal law are custom or policy, and deliberate indifference, a rather poorly defined concept which is similar to totality of circumstances. Although federal lawsuits can result in money awards, the amount is usually less since the main purpose is to win and get the agency to change the way it operates; i.e., obtain injunctive relief.

STATE (TORT) LIABILITY LAW

There are three types of torts under state law, each with different levels of proof and focusing upon different elements of the injury or damage. Evidence rules, precedent, and judicial discretion play a role in determining what type of tort law will be applied.

STRICT LIABILITY -- In this case, the injury or damage is so severe and it's reasonably certain that the harm could have been foreseen that the law dispenses with the need to prove intent or mental state. The only issue is whether the officer or department should pay the money award, and since officers don't usually have any money, the department almost always pays. (Examples: reckless operation of vehicle; excessive SWAT tactics)

INTENTIONAL TORT -- In this case, the officer's intent must be proven, using a foreseeability test involving whether or not the officer knowingly engaged in behavior that was substantially certain to bring about injury. (Examples: wrongful death; assault; false arrest; false imprisonment)

NEGLIGENCE -- In this case, intent or mental state do not matter. What matters is whether some inadvertent act or failure to act created an unreasonable risk to another member of society. (Examples: speeding resulting in traffic accident; not responding to 911 call) Most states have three levels of negligence: (1) slight or mere (absence of foresight); (2) gross (reckless disregard); and (3) criminal. To be prosecuted under tort law for negligence usually requires at least level 2 since to be prosecuted for mere negligence requires considering foreseeability which would support charging the person with an intentional tort or not.

There are additional details of state tort liability associated with specific types of lawsuits, such as:

Wrongful death -- These are typically cases when the officer thinks a suspect is reaching for a weapon, shoots the suspect, and then no weapon is found on the suspect. Courts have ruled that the totality of circumstances must be looked at, especially the reason why the suspect came into contact with the officer in the first place. Merely alleging that a suspect appeared to be reaching for a weapon is no defense.

Assault & Battery -- A police assault would be if an interrogator threatens to throw a suspect out a second-floor window; a police battery is (paradoxically) defined more loosely as any offensive contact without consent; e.g., a male officer performing an illegal search of a female over her protests.

False arrest -- The unlawful restraint of a person's liberty without their consent; e.g., using the caged area of a patrol car as a holding area, several officers surrounding somebody, or ordering someone to remain at the station could all be interpreted as false arrest.

False imprisonment -- This is different from false arrest in that an officer may have had probable cause to arrest, but later violates certain pretrial rights, such as access to a judge or bondsman.

HOT PURSUITS: This high-liability area typically involves reckless or negligent operation of a motor vehicle. It's also typically a strict liability area, and here are some of the acts used by the courts to infer intent or state of mind: not using flashers & sirens; not considering alternative to chase; using old, beat-up police cars; excessive disregard of traffic control devices; not securing the chase path; not warning the public; using cutoff maneuvers & roadblocks that create the possibility for overreaction; not stopping to assist any innocent injured bystanders. The duties are threefold: To warn & protect; To secure the scene; To render assistance.

FEDERAL LIABILITY LAW

Two elements have to be present simultaneously under federal liability law. If a person loses in federal court, they still have recourse under state law.

ACTING UNDER COLOR OF LAW -- This means that the behavior of officers not related to employment are not actionable. It does not mean that off-duty officers cannot be sued. An officer moonlighting in a security job can be held liable since they are acting under color of law in performing a police function. And, it sounds like a contradiction, but police behavior that is clearly illegal and violates departmental procedure, like beating up a citizen, is regarded by the court as acting under color of law.

VIOLATION OF A CONSTITUTIONAL RIGHT -- These involve whatever the court believes to be specifically prohibited conduct regarding freedom of religion, speech, press, or assembly (1st Amendment), freedom from unreasonable search and seizure (4th Amendment), freedom from double jeopardy and self-incrimination (5th Amendment), rights to a speedy, public, impartial jury trial, and to be informed of the charges, confront and compel witnesses, and to have assistance of counsel (6th Amendment); freedom from excessive bail, fines, and cruel and unusual punishments (8th Amendment); and freedom from deprivations of life, liberty, or property without due process (14th Amendment).

The leading case in police department liability under federal law is Monell v. Dept. of Social Services (1978). Under this ruling, it must be shown that the department adopted or promulgated (however informal) a "custom" or policy that was the driving force behind the officer's violation of constitutional rights. In essence, this is the doctrine of respondeat superior, since a policymaker (or "custommaker") has to be found to declare the department liable. A "pattern" of constitutional violations and an awareness of them by high-ranking officials must be demonstrated. However, there is precedent holding departments accountable for one single act as fulfilling "pattern" requirement.

Examples of gross negligence or accumulations of mere negligence constitute deliberate indifference. This standard is usually satisfied by looking at whether or not the agency administration engaged in supervisory negligence. Virtually every decision a police administrator makes subjects them to possible liability. The following are examples of supervisory negligence:

Negligent hiring -- hiring persons unfit for police work; not conducting psychological exams; not conducting full background checks

Negligent supervision -- inadequate monitoring of employee performance; failure to reprimand when appropriate; tolerating sloppy police work; hearing rumors & not acting; being new to supervisor job

Negligent retention -- keeping employees on the job or promoting them on the basis of favoritism or friendship when they clearly should have been severely disciplined, demoted, or dismissed

Failure to train -- inadequately preparing employees to perform their duties; minimal or too easy academy training; little or no in-service training; no educational tuition reimbursement

Negligent entrustment -- inadequately preparing employees prior to entrusting them with responsibilities; a synergistic combination of failure to train and negligent supervision

Negligent assignment -- assigning known problem employees to critical or inappropriate duties; reckless drivers to patrol; racist officers to ghetto areas; sexist officers with a female partner

Failure to direct -- not giving officers clear, articulated guidance in how to perform their duties; not having policies and procedures; having officers "sign off" on same without understanding them

Failure to discipline -- not having an effective discipline process; not following progressive discipline principles

Failure to investigate -- also a liability of officers; with supervisors, it's not having an effective Internal Affairs unit, inspections or integrity checks, a difficult (for citizens) complaint process, or a difficult (for employees) grievance process

Failure to protect -- also a liability of officers and jail managers; it's not inspecting safety conditions; allowing victims or witnesses to come in contact with suspects; (protection of public is an individual liability addressed with failure to direct for supervisors or writ of mandamus)

Failure to treat -- also a liability of officers and jail manager; not providing first aid, ambulance service, or counseling (given the foreseeability of suicide)

Negligent classification -- a jail manager liability; throwing adults in with children, or dangerous inmates in with non-dangerous ones

DEFENSES TO LIABILITY

Contributory negligence -- this is where the government shows that the plaintiff was also negligent, and contributed to their own injury or damage. No money award is granted if this defense is successful.

Comparative negligence -- this is when the court decides on a percentage split (say 60-40) in terms of who is negligent. This defense tends to mitigate, or reduce the size of the money award.

Assumption of risk -- this is when the court decides that the suspect engaged in behaviors (e.g., fleeing from police) that assumed the risk of damages or injuries, and cannot expect to sue the police to recover.

Absolute Immunity -- This is a Section 1983 lawsuit defense that is limited to participation in the judicial process; i.e., testifying in court. If a police officer commits perjury on the stand, they cannot be threatened with civil liability, only the criminal offense of perjury. The courts reason that it's difficult enough to get people to testify without the threat of civil liability.

Qualified Immunity -- This is a Section 1983 lawsuit defense covering duties of a discretionary nature, such as when a police administrator decides to increase or decrease the number of patrols for drunk drivers. A motorist hit by a drunk driver charging that the department did not have enough patrol cars out protecting her would not win her lawsuit.

Probable Cause -- This is the standard defense to false arrest charges.

Good Faith -- This covers a wide range of behaviors, even unconstitutional ones, if the officer is executing a warrant believing in good faith that the warrant was valid, but it later turns out the warrant was defective or invalid.

College Education -- When a department has a 4-year college degree standard for all its employees, this protects somewhat against various forms of supervisory negligence, such as charges relating to the failure to supervise, direct, train, or entrust, since it can reasonably be expected that college educated officers are better prepared to understand a broader range of motivation and control issues, more likely to read and understand policy manuals, temper police powers with good judgment or democratic values, and have a more professional orientation.

INTERNET RESOURCES
Americans for Effective Law Enforcement, Inc.
AELE: Case Law Library
The Liability Reporter
Police Liability Assessment Guide
Police Liability Concerning Human Rights

PRINTED RESOURCES
Carter, D. & A. Sapp (1990). Higher Education as a Policy Alternative to Reduce Police Liability. Police Liability Review 2: 1-2.
Del Carmen, R. (1991). Civil Liabilities in American Policing. Englewood Cliffs, NJ: Prentice-Hall.
Kappeler, V. (1993). Critical Issues in Police Civil Liability. Prospect Heights, IL: Waveland Press.

Last updated: 07/16/04
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Yahuwah has no respect for persons, natural or not!! Neither does the Taxman

Opinion: Chilliwack proponent of 'natural person' theory convicted of counselling fraud
A+
By David Baines, Vancouver Sun? January 19, 2012

Chilliwack's Russell Porisky has been convicted of counselling people to evade taxes through his school, Paradigm Education Group.

B.C. Supreme Court judge Elliott Myers also convicted Porisky and his common-law wife of failing to report a total of $1,127,185 of income derived from the school during the five-year period ending December 2008, thereby evading $225,222 in income tax.

The judge further convicted Porisky of failing to remit $66,133 in goods and services taxes that he should have collected on the sale of Paradigm courses and materials.

The trial was held in November and December. The Crown was represented by Bruce Harper, while Porisky and Gould represented themselves.

Judge Myers handed down his 36-page decision on Wednesday morning. For the Minister of National Revenue, it represents a major victory.

For years, Porisky has been promoting his "natural person" theory, which holds that a per-son can arrange his or her business affairs to receive income as a "natural person" rather than as a taxpayer, thereby avoiding income taxes.

The only problem is, the courts have consistently rejected this argument. More than a dozen people, including some of Porisky's former students, have been convicted of tax evasion, and some have been sentenced to jail terms.

By getting Porisky convicted of counselling people to evade tax through the natural person theory, the federal government has effectively cut off the head of the snake.

In his decision, Judge Myers noted that Porisky worked in the construction industry, then in the early 1990s began to study the taxation system.

By 2001, he had dedicated him-self to studying and propagating his theories. He founded the Paradigm Education Group to "create a structure that everyone could work together in to save the country from a foreign parasite" - the international bankers who were supposedly responsible for the income tax system.

To promote his natural per-son theory, he wrote books and created instructional DVDs, and Paradigm sold them through its website, www.naturalperson. com.

He also conducted seminars, for which he charged a fee, and he qualified "educators" to teach Paradigm materials and assist people who wanted to set them-selves up as natural persons.

Gould, who has lived with Porisky since 1998, assisted in administrative matters and attended his seminars. Money generated by Paradigm was deposited into four bank accounts, two of which were in their joint names.

Paradigm proved to be a very popular and lucrative business. A Canada Revenue Agency investigator testified that a total of $1,843,298 was deposited into Porisky's and Gould's bank accounts during the relevant period. After deducting expenses, he estimated net business income to be $1,127,185, which he allocated evenly between the two accused.

While the profitability of the venture was clear, its underlying logic was not:

"Mr. Porisky's theory not only does not bear any legal logic but it also fails to accord with common sense. It is a failed attempt at word magic and has no validity," Judge Myers wrote in his decision.

He said the "absurdity" of Porisky's distinction between a natural person and a non-natural person was illustrated during the trial when he was asked whether he wanted to give any evidence.

"If I make the decision and I go in that box, which person, in the eyes of the law, am I?" he asked the judge.

"Am I Russell Anthony Porisky in my inherent personality as a natural person, or am I a sovereign-granted personality?"

"You're Mr. Porisky," the judge replied.

"That's fairly misleading because that's not clear enough for me," Porisky responded.

At that point, the judge tried to reduce the question to its simplest form:

"Let's assume you get into the stand and the Crown asks you, 'What did you have for break-fast today?' Would it make a difference as to what capacity you were in?"

"For me, it would, your honour, yes."

The judge also noted that, when Porisky was asked to confirm the identity of a Paradigm educator in the public gallery, he said it depended in what capacity the Crown was asking about.

The judge found that Porisky was well aware of previous court decisions rejecting the natural person theory, and was therefore "wilfully blind" in utilizing and promoting his views to others.

"It is clear to me that Mr. Porisky intended that Paradigm students follow his teachings by arranging their affairs as natural persons and avoid paying income tax."

The judge noted that Paradigm's books and DVDs contained a disclaimer that the information in them "should in no way be construed as either legal or financial advice," and that readers should consult a competent expert to determine its veracity before utilizing it.

But he said these caveats were "lost in a sea of material that [Paradigm] presented with 100-per-cent certainty," and it was clear he was "encouraging the fraud of income tax avoidance."

Judge Myers will consider an appropriate sentence at a later date. Based on his income tax evasion conviction alone, it is highly likely that Porisky, at least, will be handed a jail sentence. The counselling conviction can only lengthen that term.

dbaines@vancouversun.com

Blog: vancouversun.com/baines

TRUE US HISTORY

From AbundantHope.net
TRUE US HISTORY
Man or Other Animals: US Laws Define Humans to be Animals - Livestock on the Global Plantation
By Al Adask with comments by Donna & Ron
Dec 31, 2011 - 2:28:25 AM

Man or Other Animals: US Laws Define Humans to be Animals - Livestock on the Global Plantation

On 27/12/11, in the third hour of 'The Power Hour' radio talk show program the host, Joyce Riley, interviewed Al Adask. See: http://archives2011.gcnlive.com/Arch...ur/1003113.mp3 the first few minutes of the program deal with a typically smooth talking Talmudic author who, I assume from what he says, has written a book demonising Muslims. Feel free to ignore that.


Mr. Adask has brilliantly exposed the truth about how any unlawful government legislated "laws" in the US have defined humans as mere animals so that they can treat them accordingly.

Donna visited Al Adask's blog at Adask.wordpress.com which is shared with you below. This information is so interesting and relevant that many may wish to research these articles and legal resources for themselves. At the end of the articles listed below Al Adask makes a personal statement. He is a man who stands in his own sovereignty.

Quoting Al Adask from his blog:

"The subject of the interview will be the “man or other animals” laws whereby the government expressly defines the American people to be “animals” rather than men and women made in God’s image (Genesis 1:26-28) and endowed by their Creator with God-given, unalienable Rights (“Declaration of Independence”). This definition violates fundamental principles of the Bible and Declaration of Independence and constitutes an act of genocide against the American people.

I know these definitions exist in Texas and federal law, as well as five other States that I’ve investigated. I presume these “man or other animals” laws exist in all 50 States. I’ve had reports from England and Australia that their definitions of drugs also declared man to be an “animal”. It is likely that the presumption that mankind are nothing but “animals” is a cornerstone principle for big government and the New World Order.

The concept of “man or other animals” laws is hard to follow over the radio. Therefore, so, as a convenience for today’s radio audience, I am publishing several links on this blog entry to the fundamental laws and documents I’ll discuss during the interview.

If the listeners want to verify some of what I’ll be saying, they’ll be able to so with relative ease from this single blog entry and list of articles and legal resources.

1. This first link is to a copy of the original paperwork (a freedom of religion defense) that I used when the Texas Attorney General sued me and six others for the “manufacture and distribution of a a controlled substance” (colloidal silver). Each defendant was threatened with fines of $25,000/day ($9 million/year). After investing 6 years and nearly $500,000 in the pre-trial investigation and hearings in our case, the Texas simply ceased all prosecution efforts. I believe the reason is that the case was dropped is that the “man or other animals” insight is so politically explosive that the gov-co couldn’t risk taking it to court. I.e., the “war on drugs” started by President Nixon in A.D. 1971 is based on a definition of the word “drug” that presumes the people to be animals. The war on drugs laid the foundation for much of the modern police state. The police state gave us the prison-industrial complex. Similarly, the pharmaceutical industry, the medical establishment , and the FDA’sregulation of raw milk and vitamins are all based in large measure on a definition of “drug” that presume the people to be “animals”. All of these institutions (and billions of dollars) are based on a definition of “drug” that can’t withstand a challenge based on freedom or religion. If the “man or other animals” definitions are overturned in court, these various institutions will be badly debilitated and perhaps destroyed. The Texas Attorney General wasn’t willing to take that risk, so he dropped the case. http://adask.wordpress.com/2008/06/1...her-animals-1/

2. This second link explains why the “man or other animals” laws are acts of genocide perpetrated by the federal government against the American people. http://adask.wordpress.com/2008/06/1...her-animals-3/

3. This third link is to an article published at GenocideWatch.org entitled the “8 Stages of Genocide”. Note that “Stage 3″ in this article is “dehumanization” and includes declaring other people to be insects, vermin or “animals“: http://genocidewatch.org/aboutgenoci...fgenocide.html

[Ron: Please note that Al Adask inappropriately and wrongly further publishes the Talmudic calumny that the German nation exterminated Jews during WWII. IT DIDN'T! And anyone concerned about human rights, as he is, should be scrupulously careful about Blood Libelling the German nation with throw-a- way lines. In fact, the US and its British and Soviet allies genocided some 13 million Germans at the end of WWII and in the five years thereafter. Moreover, NO Jews were holocausted by the German nation and the Red Cross reported that only 271 304 Jews died in German concentration WORK camps during WWII - most of them from disease, malnutrition and (at the end of the war) starvation due to Anglo-US bombing of Germany . See eg: OFFICIAL RECORDS FROM INTERNATIONAL RED CROSS PROVE "HOLOCAUST" WAS A FRAUD – Repost. See: http://just-another-inside-job.blogspot.com/2007/06/official-records-from-international-red.html ].


4. Here’s a link to the A.D. 1906 Pure Food and Drug Act. See Section 6 wherein the government defines the words “food” and “drugs” to apply to “man or other animals” and thus defines man to be an “animal”. This the earliest instance we’ve found of government declaring the American people to be “animals”. For over a century, your government has regarded you, your spouse, children, parents and friends to be “animals”. http://www.ncbi.nlm.nih.gov/books/NBK22116/

5. Here’s a link to Title 7 (Agriculture) of the United States Code, (7 U.S.C. Section 136(d)) which defines man to be an “animal”. http://codes.lp.findlaw.com/uscode/7/6/II/136

6. 21 U.S.C. 321(g)(1) Federal definition of “drugs” defines man to be an animal: http://codes.lp.findlaw.com/uscode/21/9/II/321

7. Texas Health & Safety Code definition of “drugs” at 431.002(14) defines man to be an animal at: http://www.statutes.legis.state.tx.u...31.htm#431.002 .

8. For an assortment of other articles I’ve published on this blog that touch on the “man or other animals” laws, see: http://adask.wordpress.com/category/...other-animals/
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About Al Adask
I am a man made in our Father YHWH ha Elohiym's image (Genesis 1:26-28) and endowed by my Creator with certain unalienable Rights ("The unanimous Declaration of the thirteen united States of America"; July 4th, A.D. 1776). I am one of the People of The State of Texas. My articles are written and published within the venue of The County of Dallas, located within The State of Texas--a member-State of the perpetual Union styled "The United States of America".
Posted by Al Adask on October 3, 2011 in "Man or Other Animals"