Root Causes

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While I respect the ideas and opinions submitted by the majority of the
members of this list, I wonder if perhaps we're failing to deal with the
_root_ problem of such things as the CDA, Clipper, DTA, etc.

Specifically, I wonder if it wouldn't be a better approach to *prevent* such
measures from ever being proposed in the first place.

(pause to adjust nomex undies and titanium body armor :-)

Is there any precedence or possibility of either filing civil or criminal
charges against a Government official for their _official_ actions?
Something that will not only make for some Serious Press, but hit them from
an unexpected angle?

(close hatch on bunker :-)

It would seem that things such as the CDA, etc, are patent violations of the
Bill of Rights. As such, wouldn't the Congressrodent(s) proposing such
measures be violating our civil rights, and thus be criminally liable?
Aren't Congressrodents supposed to take an Oath of Office that involves
upholding the Constitution?

Alternatively, could a civil suit be filed for invasion of privacy or
somesuch? Or perhaps the previously mentioned violation of civil rights (a
la Rodney King)?

How many laws, etc, can we invoke? I mean, most congresscritters don't craft
laws on their own, so the involvement of their staff would constitute
conspiracy, as well, wouldn't it?

I'd think that if a few of the <insert favorite expletive here> were sued
and/or tried, it would sure make the rest of them consider the full
implications of any laws they might consider proposing. Too, it might
accidentally ripple through all of the Government, and settle down some of
the beaurocrats that aren't subject to voters.

IANAL, of course, so I'll leave it up to those on the list who are to
express more informed opinions; still, it _seems_ like a possible course of
action.....

Dave Merriman

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I think this is a good idea...

On Thu, 13 Jul 1995, David K. Merriman wrote:

> -----BEGIN PGP SIGNED MESSAGE-----
> 
> While I respect the ideas and opinions submitted by the majority of the
> members of this list, I wonder if perhaps we're failing to deal with the
> _root_ problem of such things as the CDA, Clipper, DTA, etc.
> 
> Specifically, I wonder if it wouldn't be a better approach to *prevent* such
> measures from ever being proposed in the first place.
> 
> (pause to adjust nomex undies and titanium body armor :-)
> 
> Is there any precedence or possibility of either filing civil or criminal
> charges against a Government official for their _official_ actions?
> Something that will not only make for some Serious Press, but hit them from
> an unexpected angle?
> 
> (close hatch on bunker :-)
> 
> It would seem that things such as the CDA, etc, are patent violations of the
> Bill of Rights. As such, wouldn't the Congressrodent(s) proposing such
> measures be violating our civil rights, and thus be criminally liable?
> Aren't Congressrodents supposed to take an Oath of Office that involves
> upholding the Constitution?
> 
> Alternatively, could a civil suit be filed for invasion of privacy or
> somesuch? Or perhaps the previously mentioned violation of civil rights (a
> la Rodney King)?
> 
> How many laws, etc, can we invoke? I mean, most congresscritters don't craft
> laws on their own, so the involvement of their staff would constitute
> conspiracy, as well, wouldn't it?
> 
> I'd think that if a few of the <insert favorite expletive here> were sued
> and/or tried, it would sure make the rest of them consider the full
> implications of any laws they might consider proposing. Too, it might
> accidentally ripple through all of the Government, and settle down some of
> the beaurocrats that aren't subject to voters.
> 
> IANAL, of course, so I'll leave it up to those on the list who are to
> express more informed opinions; still, it _seems_ like a possible course of
> action.....
> 
> Dave Merriman
> 
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> 
> 

____________________________|||||||||||||||||||||______________________________
		 R. Leland Lehrman@The Gate, New Haven, CT.     	    
		    http://id.wing.net/~gate/gate.html
	  God, Art, Technology and Ecology Research and Development
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>Do you love the Mother?>>>>>>>>>>>>>>>>>>>>>>>>

If I understand, you can't sue the governemtn for just trying to pass a 
law, or for even passing it.  What has to happen is that somebody needs 
to be arrested and charged with breaking the law before you can challenge 
them.

Although publishing an "Enemies of the Constitution" list all over the 
net, listing which congress-critters opposed the constitution (suck as 
Exon) might be interesting.  Might even make a good web project.  *ponders*

____        Robert A. Hayden      <=> Cthulhu Matata
\  /__          -=-=-=-=-         <=>          -=-=-=-=-
 \/  /  Finger for Geek Code Info <=> hayden@krypton.mankato.msus.edu
   \/   Finger for PGP Public Key <=> http://att2.cs.mankato.msus.edu/~hayden

Robert A. Hayden writes:

> If I understand, you can't sue the government for just trying to pass a
> law, or for even passing it.  What has to happen is that somebody needs 
> to be arrested and charged with breaking the law before you can challenge 
> them.

Correct, insofar as American jurisprudence is concerned (and a big hello
to all our friends in the rest of the world!).

A few citations, hopefully relevant:

"States and state officials acting officially are held not to be
'persons' subject to liability under 42 USCS section 1983." Wills v.
Michigan Dept. of State Police, 105 L.Ed. 2nd 45 (1989).

Title 42 of the United States Code is the section that describes
the process by which one may sue a government official. However:

"...an officer may be held liable in damages to any person injured in
consequence of a breach of any of the duties connected with his
office...The liability for nonfeasance, misfeasance, and for malfeasance
in office is in his 'individual', not his official capacity..." 70
AmJur2nd Sec. 50, VII Civil Liability.

So the trick is to sue the offender as an individual, and not as a
government official.

"A  plaintiff  who  seeks  damages for  violation  of  constitutional or
statutory   rights  may  overcome  the  defendant  official's  qualified
immunity  only by showing that those  rights were clearly established at
the time of the conduct at issue." Davis v. Scherer, 82 L.Ed.2d 139,151.
 
In summary: Failure to object timely is fatal. You must immediately let
someone know when they are violating your rights, and what the possible
penalties are, and give them the opportunity to stop, and be able to show
as evidence that they continued their actions despite your clear warning
of the consequences.

     Title 42 USC )1983:
 
     "Every   person  who,  under  color   of  any  statute,  ordinance,
regulation, custom, or usage, of any State or territory, or the District
of  Columbia, subjects,  or causes to  be subjected, any  citizen of the
United  States, or other person within  the jurisdiction thereof, to the
deprivation  of  any rights,  privileges, or  immunities secured  by the
Constitution  and laws,   shall  be liable  to the  party injured  in an
action at law, suit in equity or other proper proceedings for redress."

Notice that this statute recognizes that "statutes, ordinances, regulations
and customs" can violate your rights. Where they do so, it's up to you to
challenge the law's jurisdiction over you. Failure to challenge jurisdiction
at the first instance of a rights violation can be fatal to your case, and
will be seen as an admission that the law in question does indeed have lawful
jurisdiction over you.

     "To  maintain an action under  42 USC 1983, it  is not necessary to
allege or prove that the defendants intended to deprive plaintiff of his
Constitutional  rights or that they acted willfully, purposefully, or in
a  furtherance of a conspiracy.  . . it is  sufficient to establish that
the  deprivation. . . was the  natural consequences of defendants acting
under  color of law. . .  ."  Ethridge v. Rhodos,  DC Ohio 268 F Supp 83
(1967), Whirl v. Kern CA 5 Texas 407 F 2d 781 (1968)

     Further, United States Code, Title 18, section 242 provides for "one
or more persons who, under color of law, statute, ordinance, regulation,
or custom, willfully subjects any inhabitant of any state, territory, or
district to the deprivation of rights, privileges, or immunities secured
or protected by the Constitution or laws of the United States. . . shall
be  fined not more than  $1,000 or imprisoned not  more than one year or
both." This means you can sue for conspiracy if there's more than one
person involved, such as a magistrate acting in collusion with a police
officer. And you are able to sue them as individuals because:

"...an...officer who acts in violation of the Constitution ceases to
represent the government." Brookfield Co. v Stuart, (1964) 234 F. Supp
94, 99 (U.S.D.C., Wash.D.C.)


On a more relevant note:

> Although publishing an "Enemies of the Constitution" list all over the 
> net, listing which congress-critters opposed the constitution (suck as 
> Exon) might be interesting.  Might even make a good web project.  *ponders*

Well, the Internet Advertisers Blacklist seems to be doing pretty well,
despite the obvious backlash by the likes of Marthe Siegel. The Idea
Futures market also seems to be doing a hot business. The recent focus
here on 'moderated' areas and whether the signal-to-noise ratio is worth
the added layer of 'authority' shows the need for individual choice.
I may choose to have person A forward me Cypherpunks excerpts, person B
specific rec.toys.lego postings, etc. Or I can use software (getting
better all the time) to act as an intelligent agent and find articles
for me. Or most likely, I'll use a combination of the two, and I suspect
most folks will choose this as well when they are made aware of the
respective advantages and disadvantages of each method.

In sum, "reputation markets" as Tim described are just starting to take
off. The need for strong security tools increases with it. What if some
big-name megacorp put up a page with all kinds of financial transaction
options - and suffered a mass boycott because they refused to use PGP?
If someone feels like creating an "Enemies of the Constitution" list, I'd
certainly be interested; even more so if there were competitors doing
similar projects.
  
Folks may think the pot's boiling now, but remember: We're the frogs
who, at the very least, know what's coming, even if we aren't able to
jump completely out. "Forwarned is forearmed." Every time government
does something stupid and outrageous, they piss off a few more people.
Mass disobedience (preferably nonviolent) will become more common, and
this is definitely a Good Thing.

(Blatant plug: My home page has links to both the Net Advertisers Blacklist
and the Idea Futures page, along with lots of other things. It's at:

http://yakko.cs.wmich.edu/~frogfarm

All constructive comments are welcomed.)


-- 

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On Thu, 13 Jul 1995, Damaged Justice wrote:

> Title 42 of the United States Code is the section that describes
> the process by which one may sue a government official. However:
> 
> "...an officer may be held liable in damages to any person injured in
> consequence of a breach of any of the duties connected with his
> office...The liability for nonfeasance, misfeasance, and for malfeasance
> in office is in his 'individual', not his official capacity..." 70
> AmJur2nd Sec. 50, VII Civil Liability.
> 
> So the trick is to sue the offender as an individual, and not as a
> government official.

I composed my "misfeasance in office" post before reading this
thoughtful  and well researched message from Damaged Justice.
I had read all of the messages in my mailbox with "Re: Root
Causes" as the subject, but missed this one, since the subject
line had been changed.

Damaged Justice has looked into this in much greater depth than
I have, and raises some interesting possibilities.  
(Obviously, IANAL.)

AR

%#%=%#%=%#%=%#%=%#%=%#%=%#%=%#%=%#%=%#%=%#%=%#%=%#%=%#%=%#%=%#%=%#%=%#%
"Government is not reason... it is force.  Like fire, it is a dangerous
servant and a fearful master."                      - George Washington
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Allen Robinson...................................sebaygo@intellinet.com
PGP public key AD022AA9   fingerprint 5A3BC05B2EC67724 F5664A20AEEAB07A

David K. Merriman writes:
> Specifically, I wonder if it wouldn't be a better approach to *prevent* such
> measures from ever being proposed in the first place.
> 
> Is there any precedence or possibility of either filing civil or criminal
> charges against a Government official for their _official_ actions?

Not only is it a bad idea politically, but in fact members of congress
are made specifically immune by the constitution from any legal action
being taken against them for their words or actions during sessions of
congress by any body other than congress.

.pm

On Thu, 13 Jul 1995, Perry E. Metzger wrote:

> David K. Merriman writes:
> > 
> > Is there any precedence or possibility of either filing civil or criminal
> > charges against a Government official for their _official_ actions?
> 
> Not only is it a bad idea politically, but in fact members of congress
> are made specifically immune by the constitution from any legal action
> being taken against them for their words or actions during sessions of
> congress by any body other than congress.

While I recognize this to be the case, it remains exceedingly
frustrating.  It would seem that a textbook example of
misfeasance (not malfeasance) would be the act of introducing
and/or participating in the passage of legislation that a
member knew or should have known was unconstitutional -- at
least when misfeasance is defined as "the performance of a duty
or right which one has the right to do, but in a manner such as
to infringe upon the rights of others."  [anno. 20 ALR 104]

AR

%#%=%#%=%#%=%#%=%#%=%#%=%#%=%#%=%#%=%#%=%#%=%#%=%#%=%#%=%#%=%#%=%#%=%#%
"Government is not reason... it is force.  Like fire, it is a dangerous
servant and a fearful master."                      - George Washington
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Allen Robinson...................................sebaygo@intellinet.com
PGP public key AD022AA9   fingerprint 5A3BC05B2EC67724 F5664A20AEEAB07A