Date: Wed, 27 Jan 93 16:59:26 EST
From: ims@beach.kalamazoo.mi.us
Subject: File 1--Response to "Resistance at Shopping Mall" (CuD
5.07)

Overall, this was a well-written and accurate article. As Ron
stated,
his article gives suggestions on how to deal with private
individuals;
my stance will be on how to deal with gov't agents. I promise to
keep
the quoting to a minimum.

>You may be able to fight city hall and win, but fighting with
people
>in uniforms (even on a verbal level) is almost always a disaster.

This is 100% true. Gov't cannot break the law, by definition, for
in
Brookfield Co. v Stuart, 234 F. Supp. 94, it was recognized that
"an...officer who acts in violation of the Constitution ceases to
represent the government." However, individual representatives of
gov't can and do break the laws pertaining to them, which is
nothing
less than treason, being a violation of their oath of office.
Remember, though, as Mr. Carolina has stated, that this applies to
gov't, and not to anyone else. If at all possible, you should
always
avoid confrontations with officers low on the totem pole.

>...guards, cops, and other "uniforms" get really nervous around
>organized groups.  The more inexperienced the uniform, the more
>nervous they get. Second, when a uniformed person starts a
>confrontation with anyone, he or she is trained to assert control
>over the situation as quickly as possible.  Any perceived
challenge
>to his authority, including "mouthing off", will produce a
harmonic
>disturbance at least double in intensity to the perceived
>non-acquiescence.

That's why we have the three rules for dealing with gov't
officials:
Don't say anything, be quiet, and SHUT UP! There's plenty of time
to
talk later in court, where it counts.

>Money awarded by a court is a poor substitute for missing teeth.

Perhaps, but it may be the only substitute possible in some cases.
Ideally, we would never be assaulted by gov't. But when we are, it
is
our right and duty to extract compensation for damages.

>Third, recognize that a mall IS private property and the mall
>operators can throw you out for little or no reason.

To be totally accurate, they can throw you out for NO REASON AT
ALL.
It may sound cruel and unfair, but without the concept of private
property, we'd still be scratching in the dirt just worrying about
bare survival.  If you really want to have a secure meeting, order
takeout and meet at someone's house -- which is also private
property,
and cannot be lawfully entered without a valid 4th Amendment
warrant.

Now when a gov't agent violates your rights, he loses his immunity
from prosecution -- IF IT'S HANDLED CORRECTLY. Of course, you have
to
know what those rights are, or you'll never know if they're being
violated.

When a gov't agent is stepping outside the bounds wherein he would
be
protected by "sovereign immunity", and he is violating your right,
you
ARE REQUIRED to tell him, to give him "constructive notice" of his
violation of law, just as he would inform YOU of some of your
rights
if he were to arrest YOU.  If you don't do that, the courts will
not
entertain your lawsuit for damages later. You have to tell him what
rights he is violating, what laws he is breaking, what the
penalties
are that he is risking, and what action is open to him so that he
doesn't break the law.  If on giving him notice, he corrects his
error, then there is no need to take him to court over any damages.
We all are required to behave so as to minimize damages to ANYONE,
including ourselves.

>Fourth, mall cops are not gov't agents, and as such, their
>conduct is (mostly) not governed by the Constitution.

Their conduct is not governed AT ALL by the Constitution, since it
only
applies to the gov't and its agents.

>If you are confronted by a group of threatening looking mall cops
and
>they hassle you, ask if you are being ejected from the mall.

When dealing with gov't agents, NEVER ask, "Am I under arrest?".
Rather, ask, "Am I free to go?".

>If the mall cop tries to detain you, ask if you are under arrest.

See above. This is a preferable strategy no matter who you are
dealing
with.

>If you are physically blocked from leaving (no scuffles please),
OR if
>they have the guts to claim that you are under arrest, then YOU
ask for
>the police on the grounds that you wish to file a criminal
complaint
>for wrongful imprisonment.  The strategy here is to escalate by
>demanding the presence of lawful authority.

Again, this is the preferable method of handling gov't officials as
well. The lower an officer is in the hierarchy, the more likely he
is
to violate the laws which restrain him from rights violations,
usually
because he is more likely to be ignorant of them. It's always a
good
idea to politely request that he call for a superior officer, and
not
bother trying to explain yourself until the superior arrives.

>if the real cops actually do show up, you are once again fully
>protected by the Constitution.  For this reason, real cops tend to
be
>a little more cautious in these encounters and can often defuse
>problems like this.

Even "real cops" are usually ignorant of the laws which govern
their
conduct. You may be "protected by the Constitution", but that won't
do
you any good if you're not willing to fight to the last to defend
those
rights. You are the only one who can protect your rights, in the
end.
See my comments below regarding lawyers.

>If the mall cops look like they might get physical, tell them that
>anything silly on their part will draw a complaint of criminal
assault,
>and will force your father, the lawyer, to sue everyone in sight.

The minute you rely on a lawyer, you've pissed away your rights.
You
lose your powers as a sovereign over government. You can't claim
all
rights at all times. For example, a lawyer cannot claim your right
to
remain silent:

"The right of a person under the 5th Amendment to refuse to
incriminate
himself is purely a personal privilege of the witness. It was never
intended to permit him to plead the fact that some third person
might
be incriminated by his tesimony, even though he were the agent of
such person." Hale v. Henkel, 201 U.S. 43.

Not only that, but if you allow anyone to "represent you", instead
of
being "the belligerent claimant in person" (Hale v Henkel, i.s.c.),
you
become a "ward of the court". Why? Because obviously, if someone
else
has to defend your rights for you, you must be incompetent! Clients
are
called "wards" of the court in regard to their relationship with
their
attorneys. See a copy of "Regarding Lawyer Discipline & Other
Rules",
as well as Canons 1 through 9.

Also, see Corpus Juris Secundum (CJS), Volume 7, Section 4,
Attorney
& client: "The attorney's first duty is to the courts and the
public,
NOT TO THE CLIENT, and wherever the duties to his client conflict
with
those he owes as an officer of the court in the administration of
justice, THE FORMER MUST YIELD TO THE LATTER." (emphasis mine) I
trust
this needs no further explanation.

Corpus Juris Secundum assumes courts will operate in a lawful
manner. If
you make this assumption, you may learn, to your detriment, through
experience, that certain questions of law, including the question
of
personal jurisdiction, may never be raised and addressed,
especially if
you are represented by the bar. (Sometimes "licensed counsel"
appears to
take on the characteristics of a fox guarding the hen house. Send
me
e-mail if you would like more info regarding "licenses to practice
law".)

Lawyers will NEVER do the necessary things before arraignment to
get a
case dismissed.  They will guarantee that you are locked into a
criminal
proceeding from the start by entering a "not-guilty" plea for you,
and
will give the government all the time it needs to win the case by
waiving the speedy-trial time limits.  With a lawyer as a friend,
you
don't need any enemies!

>first make it clear that you protest the action, and then let them
>take it from you.  The trick here is to make sure that you have
not
>"consented" to the search -- however, you must give in to a claim
of
>authority from a police officer.

An officer has no authority until he proves it. If you let this
strange
person do whatever they want without having determined their lawful
authority and their true identity, you have "consented", no matter
how
much you may verbally protest.

>(And no, you do not get to argue the Fourth Amendment search and
>seizure issue right there on the spot. Your lawyer will do that
later
>at your criminal trial...

No lawyers, unless you want to lose.

>A really smart cop might say to the guard, "I will not make the
search,
>but I won't stop you if you search."  Stand your ground at this
point.
>Tell the real cop that you REFUSE to allow the search unless the
real
>cop orders the search to take place.

Excellent suggestion, but be sure to take the above precautions
regarding true identity and lawful authority before you think about
"consenting".

>The only words you should utter after being arrested are "I want
to
>speak with a lawyer."

Change this to, "I demand counsel of my choice." The 6th Amendment
is your authority. If the court tries to force you to use a
"licensed
lawyer" or a "public defender", it is not counsel of your choice.

>ROBERT A. CAROLINA
>Member, Illinois State Bar Association

Your advice is surprisingly good, for a member of the bar. :-) Not
all
lawyers are ignorant and lawless, but the 99% that are give the
other
1% a bad name. I'm glad to see we have a few of the good ones
reading
CuD.

Finally, let me leave you with one of the most eloquent statements
ever by the Supreme Court:

"Decency, security and liberty alike demand that government
officials
shall be subjected to the same rules of conduct that are commands
to
the citizen. In a government of laws, existence of the government
will
be imperiled if it fails to observe the law scrupulously. Our
government is the potent, the omnipresent teacher. For good or for
ill,
it teaches the whole people by its example. If the government
becomes a
lawbreaker, it breeds contempt for the law; it invites every man to
become a law unto himself; it invites anarchy. To declare that in
the
administration of the criminal law the end justifies the
means...would
bring terrible retribution...[and] against that pernicious
doctrine,
this court should resolutely set its face."
 Olmstead v U.S., 277 U.S. 348 (1928)
 Justice Brandeis, dissenting

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