Letter from a friend...
This goes a lot deeper & further than you can even know. Your case is not just about dogs. There are civil, procedural & constitutional rights violations in spades here. Here is what you want to do first

1) File an Affidavit of prejudice against the judge in your case, he has already been reprimanded by the state's Judicial Commission for violating defendants rights & due process. Also since as you pointed out he is the one who issued the warrant he has already "convicted" you in essence, he has not made a ruling in your case so you still have the right to have him removed. (I've included his reprimand)

2) File a complaint with the Judicial Commission against Commissioner Waggoner, since she let you present your case, in front of the prosecutor & said she wouldn't rule on your case because you didn't file a motion which you clearly did, she compromised your criminal case & seems to be incompetent in matters regarding the law, due process, & she should've informed you of your 5th Amendment rights not to incriminate yourself in the criminal matter. The fact that she didn't cite the procedural error she believed why she shouldn't rule on your case until AFTER you presented your case speaks volumes about her intentions. You need to get the court minutes ASAP because the prosecutor can not over ride the Washington state constitution nor can any municipality rule over Washington state RCW's (I've included the complaint form)
3) File a motion requesting your current attorney be removed from your case & ask for an attorney with expertise in the areas of Animal & Civil rights. Since this case is unique & requires expertise in specific laws & procedure. Make sure you ask the SAME questions of any attorney they appoint for you. What is your level of expertise in this area of law? How long have you been practicing? How many cases have you won, ie: What is your win/loss ratio? Do you have liability insurance & what is your insurance limit? If a lawyer gets defensive, over these questions like the last one did, then you need to just go pro se, you stand a better chance of having a fool for a client than an idiot for a lawyer. (I've included the motion for a new attorney as well as instructions forms)
4) File a motion to have them throw out the pictures since they did not photograph all 4 sides of the car & clearly not the area where you had the dogs food supplies. Even if they don't allow for that remember to point out this fact to the jury, as any logical minded person will still wonder why they were so thorough in photographing the other 3 sides but not the 1. Since the photo's clearly show your water bottle on the car & food dishes almost full inside, the pictures really can't hurt you.
5) File a motion to get Officer Trask's statement thrown out as it contains, hearsay, get an affidavit from your vet that says they did not make those statements attributed to them & that they are prepared to come to court to say so. Even if they don't throw out her statements then they still work in your favor, they are full of lies & her reference over the course of all 3 statements of you being a "thin Native American Woman" is enough to make any person wonder what her true motivation is. It also makes your case for you. As for the vet records, keep those, even if they "lose" them you still have them. You will need them also for your civil torts claim & civil case, as they represent so many things, 1 they establish that the dogs were not malnourished, not dehydrated, & appeared to be healthy. Since you have Soffie's vet records you have proof you have tried to get vet care for her.  As for their claim the dogs were treated for Giardia & 1 for tapeworms 2 months after they were brought in, that is also refutable as to when they got them & since there is no treatment date, it can be assumed they got it from the shelter, since no mention of fleas was ever made in the initial vet exams, & you have your treatment record.
6) File a motion for the return of your dogs in the municipal court while simultaneously filing a Motion for Reconsideration & Affidavit of prejudice against commissioner Waggoner, Affidavit first, Motion 2nd in Superior court.
7) Remember no matter what you do, do NOT waive your rights to a speedy trial.
8) Compile your witness list by this weekend. Make sure to include the landlord, the neighbor & the lady you were staying with as hostile witnesses. Also call the staff from the Everett Shelter that you have dealt with when you were pulling dogs, & anyone who examined your dogs. Include the Animal Control Agents from King & Kitsap counties as well. also get sworn Affidavits from all the shelter workers & Managers you have dealt with, all of the rescues you have dealt with, & most importantly try to get a statement from ALL of the people who have adopted from you, & people who have signed over animals to you. Get sworn Affidavits from your vet techs, all of your volunteers & your donors as well. Get as many of them to come in as you can & remember the prosecutor will try to say that those witnesses are not pertinent to this case but don't fall for it, they have attacked your character & your credibility, saying that you kept your dog alive for donations. Another thing you need to bring up is the fact that this crazy woman is saying they told her your dogs had Giardia & worms, but at the initial exams they showed no signs, but all of a sudden 2 months later they do? So either they are trying to cover their butts, for her or for themselves.
9) Jury selection, try to get as many Native Americans on your jury panel as possible, since it seems to be such a big deal, you have a right to be heard by a jury of your "Peers" , make sure to ask them what they feel would be a credible reason for getting rid of a pet, how they feel about euthanasia, & see if they have ever been homeless, they don't have to be rocket scientists but make sure they have some level of education.
10) Remember that the city has the burden of proof, you have the right to defend yourself, make sure to take as much time as you need to present your case, the judge will try to hurry you along, but do NOT be rushed, you need to present every single little item of relevance in your case big or small so that if you lose you will have lots of points to bring up in appeals court, many cases have been lost because relevant info wasn't presented in court leaving the defendant with no basis for appeal, but REMEMBER if you lose you need to file an Emergency Injunction for the dogs & cat or they can immediately
euthanise all of them if they want to.

Notes:
You should not file the Tort Claims til after your court hearing but you also have only 6months to file it so file it anyway if this case is not resolved by then anyway. (I've included the tort form & filled out some of the relevant parts for you)

You need to contact your local FBI office about the Animal Control officer's statements, they have to investigate because it is a City Agency. Start this process IMMEDIATELY & once you get the PDR you can add additional info to the case file. There is also a link where you can file on the internet, make sure to print or copy the form after you have completed it. Make the complaint against the City of Everett & Everett Animal Control as the city is the controlling agency responsible for the oversight of all of it's agencies & officers thereof.
http://www.justice.gov/crt/complaint/
Criminal 

Contact your local FBI field office to report incidents of:
  • Excessive force or other Constitutional violations by persons acting as law enforcement officials or public officials (link to our overview page paragraph on official misconduct);
You can find your local office here:
http://www.fbi.gov/contact/fo/fo.htm

Please include as many details of the incident as possible, such as the dates and times; names of possible witnesses; and supporting documents, such as police and medical reports, or photographs.
You may also mail a written copy of the complaint and materials you submitted to the FBI to the Criminal Section at:
US Department of Justice
950 Pennsylvania Avenue, NW
Civil Rights Division
Criminal Section – PHB
Washington, DC 20530

Color of Law Abuses
Gavel
U.S. law enforcement officers and other officials like judges, prosecutors, and security guards have been given tremendous power by local, state, and federal government agencies—authority they must have to enforce the law and ensure justice in our country. These powers include the authority to detain and arrest suspects, to search and seize property, to bring criminal charges, to make rulings in court, and to use deadly force in certain situations.
Preventing abuse of this authority, however, is equally necessary to the health of our nation’s democracy. That’s why it’s a federal crime for anyone acting under “color of law” willfully to deprive or conspire to deprive a person of a right protected by the Constitution or U.S. law. “Color of law” simply means that the person is using authority given to him or her by a local, state, or federal government agency.

The FBI is the lead federal agency for investigating color of law abuses, which include acts carried out by government officials operating both within and beyond the limits of their lawful authority. Off-duty conduct may be covered if the perpetrator asserted his or her official status in some way.

During 2009, the FBI investigated 385 color of law cases. Most of these crimes fall into five broad areas:

  • Excessive force;
  • Sexual assaults;
  • False arrest and fabrication of evidence;
  • Deprivation of property; and
  • Failure to keep from harm.
Excessive force: In making arrests, maintaining order, and defending life, law enforcement officers are allowed to use whatever force is "reasonably" necessary. The breadth and scope of the use of force is vast—from just the physical presence of the officer…to the use of deadly force. Violations of federal law occur when it can be shown that the force used was willfully "unreasonable" or "excessive."
Sexual assaults by officials acting under color of law can happen in jails, during traffic stops, or in other settings where officials might use their position of authority to coerce an individual into sexual compliance. The compliance is generally gained because of a threat of an official action against the person if he or she doesn’t comply.

False arrest and fabrication of evidence: The Fourth Amendment of the U.S. Constitution guarantees the right against unreasonable searches or seizures. A law enforcement official using authority provided under the color of law is allowed to stop individuals and, under certain circumstances, to search them and retain their property. It is in the abuse of that discretionary power—such as an unlawful detention or illegal confiscation of property—that a violation of a person's civil rights may occur.

Fabricating evidence against or falsely arresting an individual also violates the color of law statute, taking away the person’s rights of due process and unreasonable seizure. In the case of deprivation of property, the color of law statute would be violated by unlawfully obtaining or maintaining a person’s property, which oversteps or misapplies the official’s authority.

The Fourteenth Amendment secures the right to due process; the Eighth Amendment prohibits the use of cruel and unusual punishment. During an arrest or detention, these rights can be violated by the use of force amounting to punishment (summary judgment). The person accused of a crime must be allowed the opportunity to have a trial and should not be subjected to punishment without having been afforded the opportunity of the legal process.

Failure to keep from harm: The public counts on its law enforcement officials to protect local communities. If it’s shown that an official willfully failed to keep an individual from harm, that official could be in violation of the color of law statute.

Filing a Complaint

To file a color of law complaint, contact your local FBI office by telephone, in writing, or in person. The following information should be provided:

  • All identifying information for the victim(s);
  • As much identifying information as possible for the subject(s), including position, rank, and agency employed;
  • Date and time of incident;
  • Location of incident;
  • Names, addresses, and telephone numbers of any witness(es);
  • A complete chronology of events; and
  • Any report numbers and charges with respect to the incident.
You may also contact the United States Attorney's Office in your district or send a written complaint to:
Assistant Attorney General
Civil Rights Division
Criminal Section
950 Pennsylvania Avenue, Northwest
Washington, DC 20530
FBI investigations vary in length. Once our investigation is complete, we forward the findings to the U.S. Attorney’s Office within the local jurisdiction and to the U.S. Department of Justice in Washington, D.C., which decide whether or not to proceed toward prosecution and handle any prosecutions that follow.
Civil Applications
Title 42, U.S.C., Section 14141 makes it unlawful for state or local law enforcement agencies to allow officers to engage in a pattern or practice of conduct that deprives persons of rights protected by the Constitution or U.S. laws. This law, commonly referred to as the Police Misconduct Statute, gives the Department of Justice authority to seek civil remedies in cases where law enforcement agencies have policies or practices that foster a pattern of misconduct by employees. This action is directed against an agency, not against individual officers. The types of issues which may initiate a pattern and practice investigation include:
  • Lack of supervision/monitoring of officers' actions;
  • Lack of justification or reporting by officers on incidents involving the use of force;
  • Lack of, or improper training of, officers; and
  • Citizen complaint processes that treat complainants as adversaries.
Under Title 42, U.S.C., Section 1997, the Department of Justice has the ability to initiate civil actions against mental hospitals, retardation facilities, jails, prisons, nursing homes, and juvenile detention facilities when there are allegations of systemic derivations of the constitutional rights of institutionalized persons.
Report Civil Rights Violations
Resources

You need to get a PDR (public records disclosure) from the Everett Animal Shelter, the info you are looking for is Euthansia stats, seizure records, for all of the officers, employment info, (see if they have any minorities working there or if they ever have had any) check to see what the minority status is on cases they file or complaints they make ie: How many cases against minorities v. non minorities do they file. Pay special attention to Officer Trask's history V. the other Officers records, I would even try to contact some of the defendants to get a look at them to see if they are also thin or any other ethnicity than white. I would suggest that if you find enough of them... You start a Class Action lawsuit as well. Make it very clear that your wanting to see this woman fired & you want some minorities hired, period. If they don't give you the PDR or if they fight it, trust me it looks much better on your case. If you don't know what you're looking for or what else to ask for please let me know & I will fill out a form for you.

Also remember in your lawsuit for the loss of George, use Roemer V. Gray inre: Yofi, as a guideline for intrinsic value, emotional distress, vet bills, costs, & cost of care.

I still think you should file a motion for dismissal of the entire case & immediate return of the dogs & cat. I am actually surprised you didn't get a call from the prosecutors office to have a mediation hearing, they have to know they have  a shoddy case at best, but maybe they are just hoping that YOU are bluffing & not going to proceed with a jury trial, & that in fact they might think they have the Judge so deep in their pockets that no matter what you do he will rule against you, which is very common in the smaller jurisdictions. Remember you have less than 30 days to appeal any decision they make & you want file a motion for a stay for your animals the DAY you lose to make sure they will remain safe. I will send you all the points to make in another email for your jury trial, & include case law to back it up, remember to copy & paste the actual statement inre the case you are quoting so the Judge doesn't have to look it up & so that the Jury can read it in deliberations.

Talk to you later!

 

The Civil Rights Division enforces civil rights laws in a wide variety of

contexts. You may use the information on this page to find the appropriate

way to submit a complaint or report of a potential civil rights violation.

If you are not sure which Section is the appropriate one to receive your

complaint, you may contact the Civil Rights Division at (888) 736-5551 or

(202) 514-3847.

Criminal 

Contact your local FBI field office to report incidents of:

  • Hate crimes (link to our overview page paragraph on hate crimes);
  • Excessive force or other Constitutional violations by persons acting
  • as law enforcement officials or public officials (link to our overview
  •  page paragraph on official misconduct);
  • Human trafficking and involuntary servitude (link to our overview
  •  page paragraph on human trafficking);
  • Force, threats, or physical obstruction to interfere with access to reproductive health care services (link to our overview page
  •  paragraph on interference with access to reproductive health care);
  • Force or threats to interfere with the exercise of religious beliefs
  • and destruction, defacing, or damage of religious property
  • (link to overview page paragraph on exercise of religious beliefs and destruction of religious property); or,
  • Force or threats to interfere with the right to vote based on race,
  • color, national origin, or religion.

You can find your local office here:
http://www.fbi.gov/contact/fo/fo.htm

Please include as many details of the incident as possible, such as the dates

and times; names of possible witnesses; and supporting documents, such as

police and medical reports, or photographs.

You may also mail a written copy of the complaint and materials you

submitted to the FBI to the Criminal Section at:

US Department of Justice
950 Pennsylvania Avenue, NW
Civil Rights Division
Criminal Section – PHB
Washington, DC 20530

Disability Rights 

You can file an Americans with Disabilities Act complaint alleging disability discrimination against a State or local government or a public accommodation (including, for example, a restaurant, doctor’s office, retail store, hotel,
etc.) by mail or e-mail. To learn more about filing an ADA complaint, visit www.ada.gov/fact_on_complaint.htm). To file an ADA complaint you may
fill out this form and mail or fax the form to:

US Department of Justice 950 Pennsylvania Avenue, NW
Civil Rights Division
Disability Rights Section – 1425 NYAV
Washington, D.C. 20530
Fax: (202) 307-1197
You may also file a complaint by E-mail at ADA.complaint@usdoj.gov.
If you have questions about filing an ADA complaint, please call:
ADA Information Line: 800-514-0301 (voice) or 800-514-0383 (TTY).

Main Section Telephone Number: 202-307-0663 (voice and TTY)

Federal Coordination and Compliance 
If you believe you have been discriminated against because of your race,
color, or national origin, including limited English proficiency (LEP), by
 programs or activities receiving federal financial assistance, you may
contact the Federal Coordination and Compliance Section. If you believe
that you have been be excluded from participation in, denied the benefits

of, or subjected to discrimination on the basis of your sex by any education
 program or activity receiving federal financial assistance, you may contact
the Federal Coordination and Compliance Section.

To file a complaint alleging discrimination in programs or activities of
entities that receive federal assistance, please print and fill out the
appropriate complaint form:

English:
PDF
Español: PDF

Chinese: PDF


Please mail the complaint to the following address:

Federal Coordination and Compliance Section - NWB
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
Should you need assistance, our phone numbers are:
(888) 848-5306
- English and Spanish (ingles y español)
(202) 307-2222 (voice)

 

CHAPTER 42.52 RCW

Wow come to find out all prosecutors are acting as state employees so my tort

claim can go for City of Everett & the State of Washington


CHAPTER 42.52 RCW

ETHICS IN PUBLIC SERVICE



RCW 42.52.010 Definitions. Unless the context clearly requires otherwise, the
definitions in this section apply throughout this chapter.
(1) "Agency" means any state board, commission, bureau, committee, department, institution, division, or
tribunal in the legislative, executive, or judicial branch of state government. "Agency" includes all elective offices,
the state legislature, those institutions of higher education created and supported by the state government, and those courts that are parts of state government.
Including the Commissioner, the prosecutor & the AC Officers
(2) "Head of agency" means the chief executive officer of an agency. In the case of an agency headed by a
commission, board, committee, or other body consisting of more than one natural person, agency head means the person or board authorized to appoint agency employees and regulate their conduct. Including the Head of AC, The Mayor
of Everett, & Councilmembers, & The State of Washington

(3) "Assist" means to act, or offer or agree to act, in such a way as to help, aid, advise, furnish information to, or
otherwise provide assistance to another person, believing that the action is of help, aid, advice, or assistance to the person andwith intent so to assist such person.
In my case the AC officer supplied information to Rose Adams believing it would further her case, where it aided her in harassing & defaming me, as well as the Judge sending my personal information to Rose Adams address knowing full well I didn't live there
(6) "Confidential information" means
(a) specific information, rather than generalized knowledge, that is not available to the general public on request
or
(b) information made confidential by law. Them saying my dogs had Giardia & worms & them "showing her on their
computer that I had dumped numerous dogs off on them" which was totally untrue but at the last minute they did claim to have treated my dogs for BOTH more than 60 days after they were taken from me, when there entrance vet exams showed none of these things

(8) "Ethics boards" means the commission on judicial conduct, the legislative ethics board, and the executive ethics board.
(9) "Family" has the same meaning as "immediate family" in RCW 42.17.020.
(12) "Official duty" means those duties within the specific scope of employment of the state officer or state employee as defined by the officer's or employee's agency or by statute or the state Constitution.
(13) "Participate" means to participate in state action or a proceeding personally and substantially as a state officer or state employee, through approval, disapproval, decision, recommendation, the rendering of advice, investigation, or
otherwise but does not include preparation, consideration, or enactment of legislation or the performance of legislative duties.
(14) "Person" means any individual, partnership, association, corporation, firm, institution, or other entity, whether or not operated for profit.
(15) "Regulatory agency" means any state board, commission, department, or officer, except those in the legislative or
judicial branches, authorized by law to conduct adjudicative proceedings, issue permits or licenses, or to control or
affect interests of identified persons.

(16) "Responsibility" in connection with a transaction involving the state, means the direct administrative or
operating authority, whether intermediate or final, and either exercisable alone or through subordinates, effectively
to approve, disapprove, or otherwise direct state action in respect of such transaction.

(17) "State action" means any action on the part of an agency, including, but not limited to:
(a) A decision, determination, finding, ruling, or order; and
(b) A grant, payment, award, license, contract, transaction, sanction, or approval, or the denial thereof, or failure to act with respect to a decision, determination, finding, ruling, or order.
(18) "State officer" means every person holding a position of public trust in or under an executive, legislative, or judicial office of the state. "State officer" includes judges of the superior court, judges of the court of appeals, justices of the supreme court, members of the legislature together with the secretary of the senate and the chief clerk of the house of representatives, holders of elective offices in the executive branch of state government, chief executive officers of state agencies, members of boards, commissions, or committees with authority over one or more state agencies or institutions, and employees of the state who are engaged in supervisory, policy-making, or policy-enforcing work. For the purposes of this chapter, "state officer" also includes any person exercising or undertaking to exercise the powers or functions of a state officer.
(19) "State employee" means an individual who is employed by an agency in any branch of state government. For purposes of this chapter, employees of the superior courts are not state officers or state employees.
(21)(a) "Transaction involving the state" means a proceeding, application, submission, request for a ruling or other
determination, contract, claim, case, or other similar matter that the state officer, state employee, or former state officer or state employee in question believes, or has reason to believe:

(i) Is, or will be, the subject of state action; or
(ii) Is one to which the state is or will be a party; or
(iii) Is one in which the state has a direct and substantial proprietary interest.

RCW 42.52.040 Assisting in transactions.
(1) Except in the course of official duties or incident to official duties, no state officer or state employee may assist
another person, directly or indirectly, whether or not for compensation, in a transaction involving the state:

(4) This chapter does not prevent a state officer or state employee from assisting, in a transaction involving the state:

RCW 42.52.050 Confidential information--Improperly concealed records.
 
(1) No state officer or state employee may accept employment or engage in any business or professional activity that
the officer or employee might reasonably expect would require or induce him or her to make an unauthorized disclosure of confidential information acquired by the official or employee by reason of the official's or employee's official position.

(2) No state officer or state employee may make a disclosure of confidential information gained by reason of the officer's or employee's official position or otherwise use the information for his or her personal gain or benefit or the gain or benefit of another, unless the disclosure has been authorized by statute or by the terms of a contract involving
(a) the state officer's or state employee's agency and (b) the person or persons who have authority to waive the
confidentiality of the information.

(3) No state officer or state employee may disclose confidential information to any person not entitled or authorized
to receive the information.

(4) No state officer or state employee may intentionally conceal a record if the officer or employee knew the record was required to be released under chapter 42.17 RCW, was under a personal obligation to release the record, and failed to do so.
This subsection does not apply where the decision to withhold the record was made in good faith. [1996 c 213 § 4; 1994 c 154 § 105.] They clearly withheld pictures of the 4th side of my car which clearly showed high quality food canned & dry food no less to better their case, & withheld all documents from me until I got a statement almost 2 months after the act & wasn't even allowed to have my charging papers so I would know what I wasfighting
 
RCW 42.52.060 Testimony of state officers and state employees. This chapter does not prevent a state officer or
state employee from giving testimony under oath or from making statements required to be made under penalty of perjury or contempt. [1994 c 154 § 106.]

 
RCW 42.52.100 Conditions on appearance before state agencies or doing business with the state-Hearing-Judicial review. (1) The head of an agency, upon finding that any former state officer or state employee of such agency or any other person has violated any provision of this chapter or rules adopted under it, may, in addition to any other powers the head of such agency may have, bar or impose reasonable conditions upon:
(a) The appearance before such agency of such former state officer or state employee or other person; and
(b) The conduct of, or negotiation or competition for, business with such agency by such former state officer or state
employee or other person, such period of time as may reasonably be necessary or appropriate to effectuate the purposes of this chapter.
(2) Findings of violations referred to in subsection (1)(b) of this section shall be made on record after notice and hearing, conducted in accordance with the Washington Administrative Procedure Act, chapter 34.05 RCW. Such findings and orders are subject to judicial review.
(3) This section does not apply to the legislative or judicial branches of government. [1994 c 154 § 110; 1969
ex.s. c 234 § 27. Formerly RCW 42.18.270.]

RCW 42.52.160 Use of persons, money, or property for private gain. (1) No state officer or state employee may employ or use any person, money, or property under the officer's or employee's official control or direction, or in his or her official custody, for the private benefit or gain of the officer, employee, or another. Officer Trask clearly took my property for her own personal emotional gains
(2) This section does not prohibit the use of public resources to benefit others as part of a state officer's or state employee's official duties.
(3) The appropriate ethics boards may adopt rules providing exceptions to this section for occasional use of the state
officer or state employee, of de minimis cost and value, if the activity does not result in interference with the proper
performance of public duties. [1996 c 213 § 7; 1994 c 154 § 116; 1987 c 426 § 3. Formerly RCW 42.18.217.]

RCW 42.52.360 Authority of executive ethics board. (1) The executive ethics board shall enforce this chapter and rules adopted under it with respect to state-wide elected officers and all other officers and employees in the executive branch, boards and commissions, and institutions of higher education.
(2) The executive ethics board shall:
(b) Adopt rules and policies governing the conduct of business by the board, and adopt rules defining working hours
for purposes of RCW 42.52.180 and where otherwise authorized under chapter 154, Laws of 1994;
(c) Issue advisory opinions;
(d) Investigate, hear, and determine complaints by any person or on its own motion;
(e) Impose sanctions including reprimands and monetary penalties;
(f) Recommend to the appropriate authorities suspension, removal from position, prosecution, or other appropriate remedy; and
(g) Establish criteria regarding the levels of civil penalties appropriate for violations of this chapter and rules adopted under it.
(3) The board may:
(a) Issue subpoenas for the attendance and testimony of witnesses and the production of documentary evidence relating to any matter under examination by the board or involved in any hearing;
(b) Administer oaths and affirmations;
(c) Examine witnesses; and
(d) Receive evidence.
(4) The executive ethics board may review and approve agency policies as provided for in this chapter.
(5) This section does not apply to state officers and state employees of the judicial branch. [1994 c 154 § 206.]

RCW 42.52.370 Authority of commission on judicial conduct. The commission on judicial conduct shall enforce this chapter and rules adopted under it with respect to state officers and employees of the judicial branch and may do so according to procedures prescribed in Article IV, section 31 of the state Constitution. In addition to the sanctions authorized in Article IV, section 31 of the state Constitution, the commission may impose sanctions authorized by this chapter. [1994 c 154 § 207.]

RCW 42.52.410 Filing complaint.
(1) A person may, personally or by his or her attorney, make, sign, and file with the appropriate ethics board a complaint on a form provided by the appropriate ethic board. The complaint shall state the name of the person alleged to have violated this chapter or rules adopted under it and the particulars thereof, and contain such other information as may be required by the appropriate ethics board.
(2) If it has reason to believe that any person has been engaged or is engaging in a violation of this chapter or rules adopted under it, an ethics board may issue a complaint. [1994 c 154 § 211.]

RCW 42.52.420 Investigation. After the filing of any complaint, except as provided in RCW 42.52.450, the staff of
the appropriate ethics board shall investigate the complaint. The investigation shall be limited to the alleged facts contained in the complaint. The results of the investigation shall be reduced to writing and a determination shall be made that there is or that there is not reasonable cause to believe that a violation of this chapter or rules adopted under it has been or is being committed. A copy of the written determination shall be provided to the complainant and to the person named in such complaint. [1994 c 154 § 212.]
 
RCW 42.52.430 Public hearing-Findings. (1) If the ethics board determines there is reasonable cause under RCW 42.52.420 that a violation of this chapter or rules adopted under it occurred, a public hearing on the merits of the complaint shall be held.
(2) The ethics board shall designate the location of the hearing. The case in support of the complaint shall be presented at the hearing by staff of the ethics board.
(3) The respondent shall file a written answer to the complaint and appear at the hearing in person or otherwise, with or without counsel, and submit testimony and be fully heard. The respondent has the right to cross-examine witnesses.
(4) Testimony taken at the hearing shall be under oath and recorded.
(5) If, based upon a preponderance of the evidence, the ethics board finds that the respondent has violated this chapter or rules adopted under it, the board shall file an order stating findings of fact and enforcement action as authorized under this chapter.
(6) If, upon all the evidence, the ethics board finds that the respondent has not engaged in an alleged violation of this chapter or rules adopted under it, the ethics board shall state findings of fact and shall similarly issue and file an order dismissing the complaint.
(7) If the board makes a determination that there is not reasonable cause to believe that a violation has been or is being committed or has made a finding under subsection (6) of this section, the attorney general shall represent the officer or employee in any action subsequently commenced based on the alleged facts in the complaint. [1994 c 154 § 213.]

RCW 42.52.440 Review of order. Except as otherwise provided by law, reconsideration or judicial review of an
ethics board's order that a violation of this chapter or rules adopted under it has occurred shall be governed by the
provisions of chapter 34.05 RCW applicable to review of adjudicative proceedings. [1994 c 154 § 214.]

RCW 42.52.450 Complaint against legislator or state-wide elected official. (1) If a complaint alleges a violation of RCW 42.52.180 by a legislator or state-wide elected official other than the attorney general, the attorney general shall conduct the investigation under RCW 42.52.420 and recommend action to the appropriate ethics board.
(2) If a complaint alleges a violation of RCW 42.52.180 by the attorney general, the state auditor shall conduct the investigation under RCW 42.52.420 and recommend action to the appropriate ethics board. [1994 c 154 § 215.]

RCW 42.52.460 Citizen actions. Any person who has notified the appropriate ethics board and the attorney general in writing that there is reason to believe that RCW 42.52.180 is being or has been violated may, in the name of the state, bring a citizen action for any of the actions authorized under this chapter. A citizen action may be brought only if the appropriate ethics board or the attorney general have failed to commence an action under this
chapter within forty-five days after notice from the person, the person has thereafter notified the appropriate ethics
board and the attorney general that the person will commence a citizen's action within ten days upon their failure to commence an action, and the appropriate ethics board and the attorney general have in fact failed to
bring an action within ten days of receipt of the second notice.If the person who brings the citizen's action
prevails, the judgment awarded shall escheat to the state, but the person shall be entitled to be reimbursed by the state of Washington for costs and attorneys' fees incurred. If a citizen's action that the court finds was brought without reasonable cause is dismissed, the court may order the person commencing the action to pay all costs of trial and reasonable attorneys' fees incurred by the defendant.Upon commencement of a citizen action under
this section, at the request of a state officer or state employee who is a defendant, the office of the attorney general shall represent the defendant if the attorney general finds that the defendant's conduct complied with this chapter and was within the scope of employment. [1994 c 154 § 216.]

RCW 42.52.470 Referral for enforcement. As appropriate, an ethics board may refer a complaint:
(1) To an agency for initial investigation and proposed resolution which shall be referred back to the appropriate ethics board for action; or
(2) To the attorney general's office or prosecutor for appropriate action. [1994 c 154 § 217.]

RCW 42.52.480 Action by boards. (1) Except as otherwise provided by law, an ethics board may order payment of the following amounts if it finds a violation of this chapter or rules adopted under it after a hearing under RCW 42.52.370 or other applicable law:
(a) Any damages sustained by the state that are caused by the conduct constituting the violation;
(b) From each such person, a civil penalty of up to five thousand dollars per violation or three times the economic value of any thing received or sought in violation of this chapter or rules adopted under it, whichever is greater; and
(c) Costs, including reasonable investigative costs, which shall be included as part of the limit under (b) of this subsection. The costs may not exceed the penalty imposed. The payment owed on the penalty shall be
reduced by the amount of the costs paid.
(2) Damages under this section may be enforced in the same manner as a judgment in a civil case. [1994 c 154 § 218.]

RCW 42.52.490 Action by attorney general. (1) Upon a written determination by the attorney general that the action of an ethics board was clearly erroneous or if requested by an ethics board, the attorney general may bring a civil action in the superior court of the county in which the violation is alleged to have occurred against a
state officer, state employee, former state officer, former state employee, or other person who has violated or knowingly assisted another person in violating any of the provisions of this chapter or the rules adopted under it. In such action the attorney general may recover the following amounts on behalf of the state of Washington:
(a) Any damages sustained by the state that are caused by the conduct constituting the violation;
(b) From each such person, a civil penalty of up to five thousand dollars per violation or three times the economic value of any thing received or sought in violation of this chapter or the rules adopted under it, whichever is greater; and
(c) Costs, including reasonable investigative costs, which shall be included as part of the limit under (b) of this subsection. The costs may not exceed the penalty imposed. The payment owed on the penalty shall be
reduced by the amount of the costs paid.
(2) In any civil action brought by the attorney general upon the basis that the attorney general has determined that the board's action was clearly erroneous, the court shall not proceed with the action unless the attorney general has first shown, and the court has found, that the action of the board was clearly erroneous. [1994 c 154 § 219.]

RCW 42.52.520 Disciplinary action. (1) A violation of this chapter or rules adopted under it is grounds for disciplinary action.
(2) The procedures for any such action shall correspond to those applicable for disciplinary action for employee misconduct generally; for those state officers and state employees not specifically exempted in chapter 41.06 RCW, the rules set forth in chapter 41.06 RCW shall apply. Any action against the state officer or state employee
shall be subject to judicial review to the extent provided by law for disciplinary action for misconduct of state officers and state employees of the same category and grade. [1994 c 154 § 222; 1969 ex.s. c 234 § 26. Formerly RCW 42.18.260.]

RCW 42.52.530 Additional investigative authority. In addition to other authority under this chapter, the attorney general may investigate persons not under the jurisdiction of an ethics board whom the attorney general
has reason to believe were involved in transactions in violation of this chapter or rules adopted under it. [1994 c 154 § 223.]

 
RCW 42.52.540 Limitations period. Any action taken under this chapter must be commenced within five years from the date of the violation. However, if it is shown that the violation was not discovered because of concealment by the person charged, then the action must be commenced within two years from the date the violation was discovered
or reasonably should have been discovered:
(1) By any person with direct or indirect supervisory responsibilities over the person who allegedly committed the violation; or
(2) if no person has direct or indirect supervisory authority over the person who committed the violation, by the appropriate ethics board. [1994 c 154 § 224.]
I can file also for the prior years of harassment because until I got the paperwork showing her hatred for thin Native women I did not even understand what the whole issue was

RCW 42.52.900 Legislative declaration Government derives its powers from the people. Ethics in government are the
foundation on which the structure of government rests.
State officials and employees of government hold a public trust that obligates them, in a special way, to honesty and integrity in fulfilling the responsibilities to which they are elected and appointed. Paramount in that trust is the principle that public office, whether elected
or appointed, may not be used for personal gain or private advantage
.The citizens of the state expect all state
officials and employees to perform their public responsibilities in accordance with the highest ethical and moral standards and to conduct the business of the state only in a manner that advances the public's interest. State officials and employees are subject to the sanctions of law and scrutiny of the media; ultimately, however, they are
accountable to the people and must consider this public accountability as a particular obligation of the public service.
Only when affairs of government are conducted, at all levels, with openness as provided by law and an unswerving commitment to the public good does government work as it should.The obligations of government rest equally
on the state's citizenry. The effectiveness of government depends, fundamentally, on the confidence citizens can have in the judgments and decisions of their elected representatives. Citizens, therefore, should honor and respect the principles and the spirit of representative democracy,recognizing that both elected and appointed officials, together with state employees, seek to carry out their public duties with professional skill and dedication to the public interest. Such service merits public recognition and support.All who have the privilege of working for
the people of Washington state can have but one aim: To give the highest public service to its citizens.
[1994 c 154 § 1.]


April 10, 1998

ADVISORY OPINION 98-04

Elective Office/Confidential Information

RCW 42.52.050, Confidential information.

ISSUES

2. Whether state officers or state employees may disclose confidential state information when they hold local public office?

OPINION

2. State officers and state employees are not prohibited from seeking or holding public office under RCW 42.52.050(1) merely because they may have knowledge of confidential information. RCW 42.52.050(2) and (3) effectively prevent disclosure unless authorized by statute or an appropriate agreement, and seeking or holding an elective position does not carry with it the presumption that confidential information has, or will be, disclosed.

ANALYSIS

This question involves an interpretation of RCW 42.52.020:

2. Whether state officers or state employees may disclose confidential state information when they hold local public office?

RCW 42.52.050(1)-(3) govern the disclosure of confidentialinformation and provide:

(2) No state officer or state employee may make a disclosure of confidential information gained by reason of the officer's or employee's official position or otherwise use the information for hisor her personal gain or benefit or the gain or benefit of another, unless the disclosure has been authorized by statute or by the terms of a contract involving (a) the state officer's or state employee's agency and (b) the person or persons who have authority to waive the confidentiality of the information.

(3) No state officer or state employee may disclose confidential information to any person not entitled or authorized to receive the information.RCW 42.52.050(1) prohibits state officers and state employeesfrom engaging in activities that might reasonably be expected to require or induce the disclosure of confidential information. While a state officer and employee may have knowledge of confidential information, the fact that the state officer or state employee may also hold elective office does not lead to a reasonable expectation that confidential information will be disclosed. RCW 42.52.050(2) and (3) clearly specify that a state officer or state employee has an obligation under the state's ethics law to not disclose confidential information. Disclosure may only be authorized by statute or by the terms of a contract agreed to between the state officer's or state employee's agency and those who have the authority to waive confidentiality. The holding of an elective officeby a state officer or state employee does not lead to a presumption that confidential state information has, or will be,disclosed.

RCW 42.52.050 Confidential information--Improperly concealed

records. (1) No state officer or state employee may accept employment or engage in any business or professional activity that the officer or employee might reasonably expect would require or induce him or her to make an unauthorized disclosure of confidential information acquired by the official or employee by reason of the official's or employee's official position.
(2) No state officer or state employee may make a disclosure of confidential information gained by reason of the officer's oremployee's official position or otherwise use the information for his or her personal gain or benefit or the gain or benefit of another, unless the disclosure has been authorized by statute or by the terms of a contract involving (a) the state officer's or state employee's agency and (b) the person or persons who have authority to waive the confidentiality of the information.
(3) No state officer or state employee may disclose confidential information to any person not entitled or authorized to receive theinformation.
(4) No state officer or state employee may intentionally conceal a record if the officer or employee knew the record was required to be released under chapter 42.17 RCW, was under a personal obligation to release the record, and failed to do so. This subsection does not apply where the decision to withhold the record was made in good faith. [1996 c 213 § 4; 1994 c 154 § 105.]

 

ASSET FORFEITURE: RULES AND PROCEDURES
by Brenda Grantland

Brenda Grantland, Esq., is an attorney in Washington, D.C. She has handled forfeiture cases since 1984 and has helped form a new organization, Forfeiture Endangers American Rights (FEAR). FEAR is forming a forfeiture lawyers directory. If you would like to join the organization (membership $20) or be listed in the directory, contact FEAR at: P.O. Box 513, Franklin, NJ 07416.

Introduction to asset forfeiture

Asset forfeiture-the process by which the government permanently takes property away from the owner, without paying just compensation, as a penalty for offenses committed by the property or the owner-is one of the most controversial law enforcement weapons in the - "War Against Drugs." Although it has come into vogue in the past few years, asset forfeiture has existed since Biblical times.

Forfeitures have existed for thousands of years and are traceable to biblical and pre-Judeo Christian times. At early English law, there were three basic kinds of forfeiture. The first, "forfeiture consequent to attainder," was applied to felons and traitors in order to divest the convicted person of all real and personal property. The second, "statutory forfeiture," tailored the forfeiture to the severity of the crime. Finally, the English law recognized a kind of forfeiture known as "deodand," which required forfeiture of the instrument of a person's death. The principle was based on the legal fiction that the instrument causing death was deemed "guilty property" capable of doing further harm. For example, if a domesticated animal killed a person, it would be forfeited, usually to the King, regardless of the guilt of its owner. The original purpose for creating this legal fiction was to satisfy the superstition that a dead person would not lie in tranquility unless the "evil property" was confiscated and viewed by the deceased's kin as the object of their retribution. Eventually, the King used forfeiture to enhance revenue, and this corrupt practice lead to the statutory abolishment of deodand in England in 1846.

Irving A. Pianin, Criminal Forfeiture: Attacking the Economic Dimension of Organized Narcotics Trafficking, 32 American U.L. Rev. 227, 232 (1982

Many of the anachronisms in forfeiture procedure and doctrine-such as the fiction that the property itself is the defendant are remnants of this ancient history. Others-such as the lowering of the burden of proof to probable cause in the federal statute, and the requirement that the claimant post a bond in order to litigate his/her right to the property-were created by the legislature to make it easier for law enforcement to prevail. Because no liberty interest was implicated, proponents of the new forfeiture laws believed the government had virtually unlimited power to punish under the guise of "remedial" civil statutes without having to deal with the stringent proof requirements of the criminal courts.

A number of commentators believe the legislatures have gone too far in easing the government's burden of proof and relaxing the normal civil due process safeguards. Several of the controversial departures in proce dure have been struck down as unconstitutional.

The law is rapidly changing in this area. Because the War on Drugs has resulted in new tactics by law enforcement which go far beyond previous practices and test the limits of the Constitution, virtually every forfeiture case is a case of first impression on some issue. Attorneys who undertake forfeiture cases should be alert for these issues.

Even with the standards and procedures strongly slanted in the government's favor, often the government fails to measure up to them. Numerous problems have been cited in the federal government's management of property seizure and forfeiture programs in studies by the United States General Accounting Office. Among the specific problems cited are failures to preserve the condition of the property and to protect the interests of innocent third parties. See, e.g., "Real Property Seizure and Disposal Program Improvements Needed," Statement of Gene L. Dodaro, Associate Director, General Government Division, before the Subcommittee on Federal Spending, Budget and Accounting, U.S. Senate, GAO/T- GGD 87-28 (September 25, 1987) (a copy of this document may be obtained free of charge from the General Accounting Office publications office).

Civil vs. criminal forfeitures

There are two types of forfeiture--civil, or in rem forfeitures, and criminal, or in personam forfeitures. A number of courts have grappled with the distinction.

The classical distinction between civil and criminal forfeiture was founded upon whether the penalty assessed was against the person or against the thing. Forfeiture against the person operated in personam and required a conviction before the property could be wrested from the defendant. See Calero-Toledo v Pearson Yacht Gearing Co., 416 U.S. 663, 682, (1973); One 1958 Plymouth Sedan v Pennsylvania, 380 U,S. 693, 700, 85 S Ct. 1246, 1250; 14 L.Ed.2d 170 (1965). Such forfeitures were regarded as criminal in nature because they were penal; they primarily sought to punish.

United States v Seifuddin, 820 F.2d 1074, 1076 (9th Cir. 1987).

"Criminal" forfeitures are subject to all the constitutional and statutory procedural safeguards available under criminal law. The forfeiture case and the criminal case are tried together. The forfeiture counts must be included in the indictment of the defendant which means the grand jury must find a basis for the forfeiture. At trial, the burden of proof is beyond a reasonable doubt. Examples of criminal forfeiture statutes in current use are RICO (18 U.S.C. § 1963), the Continuing Criminal Enterprise statute (21 U.S.C. § 848) and the criminal forfeiture provision of the drug laws, (21 U.S.C. § 853).

"Civil" forfeitures, on the other hand, are in rem actions, "based upon the unlawful use of the res, irrespective of its owner's culpability." Id. Traditionally, civil forfeiture has operated on the fiction that the res itself is the guilty party, and the fact that the forfeiture of the property effects someone's property rights was at first not considered.

Civil forfeiture follows the rules of civil procedure, with the exceptions discussed in the following section entitled "Nature of Forfeitures." The most drastic difference is the burden of proof. In criminal forfeitures, the burden of proof is on the government to prove its case beyond a reasonable doubt. Under the District of Columbia and federal forfeiture statutes (as well as the statutes of many states) the government has only to show probable cause, then the burden shifts to the claimant. Most civil forfeiture statutes also relax the normal requirements for service of process in civil cases, and allow the government to send notice by fast class mail coupled with publication. This has traditionally been permitted because civil forfeiture is "in rem" instead of "in personam."

Often courts have drawn a distinction between civil and criminal forfeitures in determining whether a particular constitutional right applies to forfeiture. Analysis along these lines is problematic because the distinction is so arbitrary, and constitutional rights are not so neatly categorized. Whether a forfeiture statute is civil or criminal turns on whether it is "punitive or remedial" under the standard of United States v Ward, 448 U.S. 242, 248-49 (1980), which depends on the intent of the legislature in enacting the statute:

[T]he question whether a particular statutorily defined penalty is civil or criminal is a matter of statutory construction.... Our inquiry in this regard has traditionally proceeded on two levels. First, we have set out to determine whether Congress, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other... Second where Congress has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect as to negate that intention.... In regard to this latter inquiry, we have noted that "only the clearest proof could suffice to establish the unconstitutionality of a statute on such a ground."

United States u Ward, 448 U.S. 242, 248-49 (1980), quoting Flemming v Nestor, 363 U.S. 603 (1960). In determining whether the sanctions are so punitive as to override a legislative intent to enact a civil penalty, the Court applied the seven considerations listed in Kennedy v Mendoza-Martinez, 372 U.S. 144, 168-69 (1963):

[w]hether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as punishment, whether it comes into play only on a fording of scienter, whether its operation will promote the traditional aims of punishment-retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned.

Constitutional implications of the quasi-criminal nature of forfeitures

All forfeiture actions, whether they are denominated "civil" or "criminal" forfeitures, are "quasi-criminal" in nature, and therefore require many of the constitutional procedural safeguards guaranteed to defendants in criminal cases.

[P]roceedings instituted for the purpose of declaring the forfeiture of a man's property by reason of offenses committed by him, though they may be civil in form, are in their nature criminal. In this very case the ground of forfeiture ... consists of certain acts of fraud committed against the public revenue ... ; and it is declared, that the offender shall be fined ... or be imprisoned ... ; and in addition to such fine such merchandise shall be forfeited. These are the penalties affixed to the criminal acts, the forfeiture sought by this suit being one of them.... The [case], though technically a civil proceeding, is in substance and effect a criminal one.... As, therefore, suits for penalties and forfeitures incurred by the commission of offenses against the law, are of this quasi criminal nature, we think that they are within the reason of criminal proceedings for all the purposes of the fourth amendment of the constitution.

One 1958 Plymouth Sedan v Commonwealth of Pennsylvania, 380 U.S. 693, 697-98 (1965), quoting Boyd v United States, 116 U.S. 616, 633-34 (1886).

In addition to the Fourth Amendment's search and seizure clause, the United States Supreme Court has extended several other constitutional rights recognized in criminal cases to all forfeiture actions-civil or criminal.

These include: the Fifth Amendment's privilege against self-incrimination, United States v United States Coin & Currency, 401 U.S. 715 (1971); and the Sixth Amendment's speedy trial guarantee, which has been read in through the Fifth Amendment's due process clause. United States u $8,850, 461 U.S. 555 (1983).

The ex post facto clause of Article II Section 9 has been held to be applicable to forfeitures. United States v MacDonald, 607 F. Supp. 1183 (E.D.N.C. 1985); United States v Lot Number 50 on Map of Kingsbury, 557 F Supp. 72 (D. Nev. 1972). In several courts, the Eighth Amendment cruel and unusual punishment clause has been found to apply to bar disproportionality between the offense and penalty in criminal forfeiture cases. United States v Busher, 817 F2d 1049 (9th Cir. 1987) (RICO statute, 18 U.S.C. § 1963(a), is subject to Eighth Amendment); United States v Huber, 603 F2d 387 (2nd Cir. 1979), cert. denied, 445 U.S. 927 (1980) (same); United States v Littlefteld, 821 F.2d 1365 (9th Cir. 1987) (drug "criminal forfeiture" statute, 21 U.S.C. § 853, is subject to Eighth Amendment).

The double jeopardy clause has been found not to prevent forfeiture after a criminal acquittal for the same offense, nor does an acquittal bar forfeiture under the doctrine of collateral estoppel (because of the higher burden of proof in criminal cases). United States v One Assortment of 89 Firearms, 465 U.S. 354 (1984). The confrontation clause was held not to apply, in United States v Zucker, 161 U.S. 475 (1896); however, most of the forfeiture cases of that era have not stood the test of time.

Claimants in forfeiture cases are not entitled to representation by counsel at the government's expense. The Supreme Court has held that a person has a right to a court appointed attorney at the government's expense only if the judgment could result in the loss of liberty, Arg ersinger v Hamlin, 407 U.S. 25 (1972), and convictions can be reversed on denial of counsel grounds only if the judgment results in a sentence of imprisonment, Scott u Illinois, 440 U.S. 374-75 (1979).

There is a vast no-man's land of other constitutional guarantees from the criminal law context that have never been tested in the forfeiture arena.

Government's authority to take

The Fifth Amendment to the United States Constitution provides, among other things, "nor shall private property be taken for public use without just compensation." That would seem to bar forfeitures entirely, but it doesn't. In Calero-Toledo v Pearson Yacht Leasing Co., 416 U.S. 663 (1973), the Supreme Court rejected the contention that the Puerto Rican forfeiture statute, which had no innocent owner defense, "unconstitutionally authorized a taking for government use of innocent parties' property without just compensation." The Court cited a long line of Supreme Court precedents establishing that innocence of the owner was not a defense to forfeiture. "Judicial inquiry into the guilt or innocence of the owner could be dispensed with, the Court held, because state lawmakers, in the exercise of the police power, were free to determine that certain uses of property were undesirable and then establish `a secondary defense against a forbidden use.' " Calero-Toledo, 416 U.S. at 686. But, the Court pointed out, this doctrine too has its limitations:

This is not to say, however, that the "broad sweep" of forfeiture statutes remarked in Coin & Currency could not, in other circumstances, give rise to serious constitutional problems. Mr. Chief Justice Marshall intimated as much over a century and a half ago in observing that "a forfeiture can only be applied to those cases in which the means that are prescribed for the prevention of a forfeiture may be employed." Peisch u Ware, 4 Cranch 347, 363 (1808). It therefore has been implied that it would be difficult to reject the constitutional claim of an owner whose property subjected to forfeiture had been taken from him without his privity or consent.... Similarly, the same might be said of an owner who proved not only that he was uninvolved in and unaware of the wrongful activity, but also that he had done all that reasonably could be expected to prevent the proscribed use of his property.

Calero-Toledo, 416 U.S. at 688-89.

The power of the government to "take" private property without implicating the just compensation clause is limited to takings that are authorized by the police power. The police power is a function, delegated to each state and local government, to establish and enforce laws to preserve public order and tranquility, promote the public health, safety, and morals and prevent, detect and punish crime. See State v Hine, 59 Conn. 50,21 A.1024 (1890).

This is an area of overlapping and sometimes competing constitutional concerns--the rights of the individual vs. the protection of the public. It is also an area of the law that is in great flux. In 1987 the U.S. Supreme Court decided three takings cases: Keystone Bituminous Coal u DeBenedictis, 480 U.S. 470 (1987); First English Evangelical Lutheran Church a Los Angeles County, 482 U.S. 304 (1987), and Nollan u California Coastal Com mission, 483 U.S. 825 (1987). It is unclear at this point how the development of the "takings" doctrine will affect forfeiture cases. For an analysis of these cases, see Si emon and Lasen, The Taking Issue Trilogy: The Begin ning of the End? 33 J. Urban & Contemp. Law 169 (1988). See also Epstein, Takings: Private Property and the Power of Eminent Domain (Harvard University Press, 1985).

The police power permits the taking of life, liberty and property, but only with due process of law. At a minimum, like statutes imposing criminal penalties, forfeiture statutes must be strictly construed in favor of the claimant. Forfeiture statutes should be construed "in a manner favorable to the person whose property is to be seized as is consistent with the fair principles of interpretation." District of Columbia u One 1981 Datsun 200SX, 115 D. Wash. L. Rptr. 645 (April 2, 1987) (D.C. Super. Ct., Burgess, J.), quoting State u 1979 Pontiac Trans Am, 98 N.J. 474, 487 A.2d 722, 726 (1985).

Statutory grounds for forfeiture

The following terms are commonly used in both federal and state statutes, and are defined, interpreted or distinguished in the cases cited:

"Used or intended for use to facilitate"-United States u Fleming, 677 F2d 602 (7th Cir. 1982) (car used to transport defendant to place where drug transaction was to take place was subject to forfeiture); United States u Ader, 520 F Supp. 313 (E.D.N.C. 1980) (interpreting term in connection with 21 U.S.C. § 881.)

"Proceeds traceable to a drug transaction "-This language has sometimes been interpreted to include a requirement that the property have a substantial connec tion to illegal drug trafficking." United States v A Single Family Residence, 503 F .2d 625 (11th Cir.1986), quoting United States v $4,255,625.39, 762 F. 2d 895 (11th Cir. 1985), cert. denied, 474 U.S. 1056 (1986).

"Proximity to drugs" D.C. Code 33-552(a)(7)(B) creates a presumption that money found in close proxim ity to drugs was used or intended for use in violation of the drug laws. This provision was found to be unconsti tional by Superior Court Judge Curtis Von Kann, in District of Columbia v $987 (Purvis Williams), 115 D. Wash. L. Rptr.1393 (July 8, 1987).

"Quantity of drugs necessary to effect a forfeiture" The amount of drugs involved in a drug forfeiture case is immaterial to the forfeiture case. United States v One 1976 Porsche, 670 F2d 810, 811 (9th Cir. 1979); United States v One Clipper Bow Ketch Nisku, 548 F.2d 8 (1stCir. 1977); United States v One 1975 Chevrolet K-5 Blazer, 495 F. Supp. 737 (W.D. Mich. 1980); United States v One Chevrolet Pickup, 503 F Supp.1027, 1030 (D. Colo. 1980); United States v One 1975 Mercury Monarch, 423 F. Supp. 1026 (S.D.N.Y 1976). These cases merely construed the statutes-none of the cases dealt with the issue of whether the proportionality requirement of the Eighth Amendment's cruel and unusual punishment clause was implicated by disproportionate penalties.

"Substantial connection requirement"-United States v One 1972 Datsun, 378 F. Supp. 1200 (D.N.H. 1974).

"To facilitate "-United States v One 1972 Chevrolet Corvette, 625 F.2d 1026 (1st Cir. 1980); Platt v United States, 163 F.2d 165 (10th Cir. 1947); United States v One Dodge Coupe, 43 F. Supp. 60 (S.D.N.Y 1942).

"Used in a gambling operation "-Vasille v District of Columbia, 296 A.2d 443 (D.C. 1972).

Federal statutes

The federal government has a large number of forfeiture statutes, but the most widely used are: 21 U.S.C. §§ 853, 881 (relating to drug offenses), 18 U.S.C. § 1963 (racketeer influenced and corrupt organizations), 8 U.S.C. § 1324 (immigration), 18 U.S.C. § 545,19 U.S.C. § 1497, 31 U.S.C. § 5317 (customs violations), 49 U.S.C. § 781 (transportation of drugs, illegal weapons, counterfeit money).

Below is a discussion of the federal forfeiture statutes which commonly relate to drug law enforcement. Drug forfeitures under federal statutes

The most commonly used civil forfeiture statute governing forfeiture for drug offenses is 21 U.S.C. § 881(a). It subjects to forfeiture:

(1) all controlled substances;

(2) raw materials, products and equipment used or intended for use to manufacture, process, deliver or import/export controlled substances;

(3) property used or intended for use as containers for controlled substances;

(4) conveyances, including aircraft, vehicles or vessels (except common carriers whose owner was not a consenting party or privy to the offense) used or intended for use to transport or facilitate the transportation of controlled substances. This section has two innocent owner defenses other than the common carrier exception, § 881(a)(4)(B) and § 881 (a)(4)(C);

(5) books, records, research, formulas and data used in violation of the drug laws;

(6) money and negotiable instruments or any other thing of value "furnished or intended to be furnished" in exchange for controlled substances, including all proceeds traceable to such a transaction, and money and negotiable instruments used or intended to be used to facilitate a violation of the drug laws. This section has an innocent owner defense which protects the interest of any owner from forfeiture of money "by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner";

(7) all right, title and interest to real property which was used or intended for use to commit, or to facilitate the commission of a felony drug offense. An innocent owner is protected from forfeiture of his/her interest in real estate "by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner";

(8) controlled substances possessed in violation of the drug laws;

(9) chemicals and equipment used in manufacture, distribution;

(10) drug paraphernalia

(11) firearms used or intended to be used to faciliate a drug offense.

A counterpart to the civil forfeiture statute 21 U.S.C. § 881 is the criminal forfeiture statute, 21 U.S.C. § 853, which allows forfeiture of property involved in felony drug offenses proscribed in title 21 of U.S. Code. Before forfeiture can occur under § 853, the owner must have been convicted of the underlying felony drug offense. Procedurally trials of § 853 criminal forfeitures vary substantially from civil forfeiture trials under § 881, for in § 853 cases, the forfeiture count is tried as separate counts, but along with the criminal case.

Upon conviction of a felony drug offense under title 21 U.S. Code Subchapter II, or of engaging in a continuing criminal enterprise, under 21 U.S.C. § 848(c)(2), the following property owned by the criminal defendant is subject to forfeiture:

(1) any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation;

(2) any of the person's property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such violation; and

(3) in the case of a person convicted of engaging in a continuing criminal enterprise in violation of section 848 of this title, the person shall forfeit, in addition to any property described in paragraph (1) or (2), any of his interest in, claims against, and property or contractual rights affording a source of control over, the continuing criminal enterprise. 21 U.S.C. § 853(a).

A conviction under 21 U.S.C. § 848(c), the "continuing criminal enterprise" statute, requires: (1) commission of a felony drug offense, and (2) the offense must have been "part of a continuing series of violations" of the felony drug laws

(A) which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and

(B) from which such person obtains substantial income or resources. 21 U.S.C. § 848(c)(2).

Vessels, vehicles and aircraft used to transport contraband drugs are forfeitable under 49 U.S.C. § 781(b)(1). Racketeer influenced and corrupt organizations

Anyone convicted under 18 U.S. Code § 1962, Racketeer Influenced and Corrupt Organizations, forfeits: (1) any interest the person has acquired or maintained in violation of section 1962; (2) any-{A) interest in; (B) security in; (C) claim against; or (D) property or contractual right of any kind affording a source of influence over; any enterprise which the person has established, operated, controlled, conducted, or participated in the conduct of in violation of section 1962; and (3) any property constituting, or derived from, any proceeds which the person obtained, directly or indirectly, from racketeering activity or unlawful debt collection in violation of section 1962.

In R.I.C.O. cases, the forfeiture counts are tried along with the criminal trial, and the court imposing sentence in the criminal case orders forfeiture of the property described above. 18 U.S.C. § 1963(a).

Customs forfeitures

19 U.S.C. § 1497 authorizes forfeiture of any article required to be declared upon entering customs if the article was not properly declared.

31 U.S. Code § 5316(a) requires persons carrying more than $10,000 at one time across the border (going into the U.S. as well as out of the U.S.), or receiving more than $5,000 at one time that has been transported across the border, to file a written report. When money has been transported across the border in violation of § 5316(a), or when a material omission or misstatement is contained in the report, is subject to forfeiture under 31 U.S.C. § 5317(b).

Smuggling goods across the border also subjects them to forfeiture under 18 U.S.C. § 545. This applies to anyone who knowingly and willfully, with intent to defraud the United States, smuggles, or clandestinely introduces into the United States any merchandise which should have been invoiced, or makes out or passes, or attempts to pass, through the customhouse any false, forged, or fraudulent invoice, or other document paper, or [w]hoever fraudulently or knowingly imports or brings into the United States, any merchandise contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law.

Id.

Firearms forfeitures under federal law

Under 49 U.S.C. § 781(b)(2), "any firearm, with respect to which there has been committed any violation of any provision of the National Firearms Act or any regulation issued pursuant thereto" is subject to forfeiture.

Firearms used or intended for use to facilitate a drug offense are forfeitable under 21 U.S.C. § 881(a)(11).

Defenses to forfeiture

Affirmative defenses must be raised in the answer, Fed. R. Civ. P and Sup. Ct. R. Civil Rule 8(c), but the answer may be amended even at the time of trial to conform with the evidence. Fed. R. Civ. P and Sup. Ct. R.-Civil Rule 15(b). However, it is a good practice to amend the answer as soon as there appears to be evidence to support an affirmative defense. The most common affirmative defenses to forfeiture are: Innocent Owner, Personal Use, Statute of Limitations, and the constitutional defenses of Denial of Speedy Trial, and Illegal Search and Seizure.

Innocent owner defense

Section 881(a)(7) of title 21 U.S.C., dealing with the forfeiture of real estate for violations of the drug laws, has an innocent owner defense identical in all significant respects to that used in the D.C. statute governing forfeiture of conveyances for drug violations:

[N]o property shall be forfeited under this paragraph, to the extent of an interest of an owner, by reasons of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner.

Id. Most of the other federal statutes provide little or no protection of the interests of innocent owners and third parties.

Where the forfeiture statute does not contain a better innocent owner defense, the Constitution guarantees at a minimum that a person not be deprived of his/her property if he/she did not know of or consent to the illegal use of the property and did everything he/she reasonably could be expected to do to prevent the illegal use. Calero Toledo v Pearson Yacht Leasing Co., 416 U.S. 663 (1974). This defense is read into the federal statute.

Personal use defense

That the drugs seized were intended for personal use and not for sale is a defense to forfeiture of a car under some state statutes. For example, the D.C. drug forfeiture statute, 33 D.C. Code § 552(a)(4)(C), or real estate under 33 D.C. Code § 552(a)(8)(B). See also United States v Zarbough, 115 D. Wash. L. Rptr. 273 (February 11, 1987).

Simple possession for personal use is not a defense to forfeiture under the federal counterpart, 21 U.S.C. § 881. Often when the D.C. police seize a car and do not have enough evidence of intent to distribute, they will turn the car over to the federal government (DEA or FBI) for prosecution under the federal statute. This is called federal adoption of a state seizure. If the federal government prevails, they share the proceeds with the District government.

Statute of limitations

Under the federal law, the statute of limitations is 5 years from the seizure. 19 U.S. Code § 1621. Even if the action is brought within the applicable statute of limitations, it may be time-barred by the Due Process Clause. $8850 supra.

Constitutional defenses: suppression of evidence

Although not technically a defense, winning a suppression motion often makes it difficult to impossible for the government to prevail at trial. In forfeiture cases the Fourth Amendment may be used to suppress evidence in the same manner as it is used in criminal cases. One 1958 Plymouth Sedan u Commonwealth of Pennsylvania, 380 U.S. 693 (1965). The entire body of search and seizure law is applicable.

Without question, contraband, incriminating documentary evidence, and money seized as a result of an illegal seizure of the res must be suppressed as evidence in the forfeiture trial. But the illegal seizure of the res does not itself bar forfeiture, so long as the government presents other, untainted evidence to prove the illegal use.

An innocent owner often does not have standing to challenge the stop and search of a car because he/she was not present at the time of the seizure. United States u One 1977 Mercedes Benz, 450 SEL, 708 R2d 444, 448 (9th Cir.1983) (owner relinquished reasonable expectation of privacy when she lent her automobile to a third party.)

Where there are parallel criminal and civil forfeiture proceedings involving the same parties and issues, resolution of a suppression issue in one case should be collateral estoppel in the other. The doctrine of collateral estoppel prohibits parties who have litigated one cause of action from relitigating in a second and different cause of action matters of fact which were, or necessarily must have been, determined in the first litigation. Tutt u Doby, 148 U.S. App. D.C. 171, 459 R2d 1195, 1197 (1972).

Denial of speedy trial

In United States u $8,850, 461 U.S. 555 (1983), the United States Supreme Court held that the four factor balancing test of Barker u Wingo, 407 U.S. 514 (1972), used to determine when delay of the trial in criminal cases violates the accused's rights to a speedy trial, is the test to be used in determining when delay in forfeiture cases violates the Due Process clause. The four factors set out by Barker u Wingo and $8850 are: "length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." $8850 at 565.

Although the delay challenged in $8850 was the delay between the seizure and the filing of a forfeiture complaint, it has been held that the Barker u Wingo factors also apply to delay between the filing of the action and the trial.

To require prompt filing of a forfeiture action but allow indefinite postponement of the trial would reduce the filing requirement to a nullity. Under the Barker test, which we think applies to the holding of the forfeiture trial as well as to the filing of the action, there is a due process violation at some point.

United States u Banco Cafetero Panama, 797 R2d 1154 (2d Cir. 1986).

[T1here has been no uniformity in deciding what constitutes a reasonable length of time. Delays of five months, United States v One 1973 Buick Riviera, 560 F. 2d 897 (8th Cir. 1977), nine months, United States v One 1972 Wood, 19 Foot Custom Boat, 501 R2d 1327, 1329 (5th Cir. 1974), and fourteen months, United States v One 1973 Ford LTD, 409 F. Supp. 741 (D. Nev. 1976), have been deemed reasonable. Generally a majority of the circuits have held that a delay of more than one year is unreasonable in the absence of a compelling reason, such as a lengthy criminal investigation or substantial problems with collecting evidence. States Marine Lines, Inc. v Schultz, 498 F .2d 1146 (4th Cir. 1974)

Darmstadter & Mackoff, Some Constitutional and Practical Considerations of Civil Forfeitures Under 21 U.S.C. Sec. 881, 9 Whittier L. Rev. 27, 40 (1987).

Forfeiture procedure, seizure warrants, restraining orders and warrantless seizures

In federal law, warrantless forfeitures are governed by 21 U.S.C. § 881(b), which provides:

Any property subject to civil or criminal forfeiture to the United States under this subchapter may be seized by the Attorney General upon process issued pursuant to the Supplemental Rules for Certain Admiralty and Maritime Claims by any district court of the United States having jurisdiction over the property, except that seizure without such process may be made when

(1) the seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant;

(2) the property subject to forfeiture has been the subject of a prior judgment in favor of the United States in a

criminal injunction or forfeiture proceeding under this subchapter;

(3) the Attorney General has probable cause to believe that the property is directly or indirectly dangerous to health or safety; or

(4) the Attorney General has probable cause to believe that the property is subject to civil or criminal forfeiture under this subchapter.

In the event of seizure pursuant to paragraph (3) or (4) of this subsection, proceedings under subsection (d) of this section shall be instituted promptly.

Warrantless seizures

Federal law, 21 U.S.C. § 881(b)(4), provides exceptions to the warrant requirement in the seizure of assets for forfeiture. Generally it is thought that the power to seize without a warrant is coextensive with the power to search without a warrant, provided the search leads to probable cause to seize. The same exceptions to the warrant requirement apply to both searches for evidence and seizures for forfeiture. Thus, if under the facts of the case there exists probable cause for an automobile or container or other thing to be searched, under any exception to the warrant requirement, and the search turns up evidence which makes out probable cause to support a forfeiture of the automobile, container, etc., it may be seized without a warrant. There are, however, a few qualifications to that general rule.

It has been held by some courts that the seizure of the res must occur contemporaneously with the event giving rise to probable cause for seizure, and there must be a showing of exigent circumstances. In United States v Pappas, 613 F2d 324, 327 (5th Cir. 1979) the Fifth Circuit stated:

Since Sec. 881(b)(4) creates an exception that threatens to swallow Section 881(b)'s warrant requirement, we would be reluctant to give it an absolutely literal reading. Id. at 327, quoting United States v One 1972 Chevrolet Nova, 560 F2d 464, 469 (1st Cir. 1977). The court held: we think it reasonable to read the "probable cause" exception as justifying the warrantless seizure of an automobile only when the seizure immediately follows the occurrence that gives the federal agents probable cause to believe that the automobile is subject to forfeiture under section 881(a) and the exigencies of the surrounding circumstances make the requirement of obtaining process unreasonable or unnecessary.

But see United States v One 1977 Lincoln Mark V Coupe, 643 F2d 154 (3d Cir.1981) (en banc) (holding that a short delay between the incident giving rise to probable cause and the seizure does not invalidate a warrantless seizure; however, this ruling is undermined by the court's reliance upon language from an older case indicating that the body of search and seizure law applicable to criminal cases does not apply to civil forfeiture, a contention which was clearly rejected by the Supreme Court in One 1958 Ply mouth Sedan v Commonwealth of Pennsylvania, 380 U.S. 693 (1965).)

Because real estate does not fit within the automobile exception, or any of the other exceptions relating to portable property, (and thus there is no exigency) a warrant is generally required for the seizure of real estate for forfeiture. United States v $128,035, 628 F Supp. 668 (S.D. Ohio 1986) ("requiring the Attorney General to secure a warrant prior to seizing a home or business represents a minimal burden, particularly in light of the substantial privacy interests infringed by the warrantless seizure of a home or business.") See also Sinoway, Sei zures of Houses and Real Property Under Marijuana Forfeiture Laws, 14 Search & Seizure L. Rpt. 113 (May 1987).

Warrants are also generally obtained when the forfeitable property-such as a bank account is held by another. This is probably because the government needs the force of authority of a warrant in order to get the third party to turn over the property.

Seizure warrants

In federal cases, property subject to forfeiture may be seized with a seizure warrant obtained pursuant to the procedures outlined in Supplemental Rule C, by merely filing a verified complaint meeting the specificity requirements of rule E. Under Rule C, the clerk then has no choice but to issue the warrant. There is no provision in the rule for a probable cause determination by a disinterested magistrate. This rule has been criticized by numerous commentators and has been found unconstitutional by numerous courts. See, e.g., United States v Certain Real Estate Property Located at 4880 S.E. Dixie High way, 612 F Supp. 1492 (S.D. Fla. 1985), 838 F2d 1558 (11th Cir. 1988); Application of Kingsley, 614 F. Supp. 219 (D. Mass. 1985), 802 F .2d 571 (1st Cir.1986); United States v Device, Labelled Theramatic, 641 F2d 1289 (9th Cir. 1981).

The rule was amended in 1985, admittedly to cure questions as to its constitutionality, and now requires a determination of probable cause by a disinterested magistrate before an admiralty warrant will issue. However, the amendment carved out an exception for all forfeiture cases, allowing seizure warrants in those cases to continue to be issued by the clerk without a probable cause determination. The questions regarding the constitutionality of this procedure continue to occur in forfeiture cases. Many federal courts have solved this problem by local rule. In some federal jurisdictions, local rules also provide post-seizure probable cause hearings at which the claimant can put on evidence. Strafer, Civil Forfeitures. Protecting the Innocent Owner, 37 U. Fla. L. Rev. 841, 852 (1985).

Restraining orders

Under the RICO (18 U.S.C. §§ 1962 et seq.) and CCE (21 U.S.C. § 848) criminal forfeiture statutes, once an indictment has been filed, the criminal court has jurisdiction to enter restraining orders, injunctions or prohibitions, to require posting of satisfactory performance bonds, or to take any other action it deems proper to prevent the dissipation of forfeitable assets prior to the conclusion of the case. See 18 U.S.C. § 1963(e), 21 U.S.C. § 848(d).

Under RICO, a restraining order maybe obtained prior to indictment if: (1) persons holding interests in the property are given notice and an opportunity for a hearing, (2) court determines there is substantial probability the government will prevail, and that failure to enter a restraining order will result in the dissipation of the property, and (3) the need to preserve the availability of the property outweighs the hardship on any party against whom the order is to be entered. 18 U.S.C. § 1963(e)(1)(B).

These restraining order provisions have been the source of a great deal of controversy as to their constitutionality because, at least in post-indictment restraining order cases, they fail to provide the defendant with a prompt post-seizure probable cause hearing. See Note, RICO Post-Indictment Restraining Orders: The Process Due Defendants, 60 N.Y.U. L. Rev. 1162, 1166 (Dec. 1985).

A number of federal circuits have imposed a requirement of a post-restraining order probable cause hearing in order to preserve the constitutionality of the statute. In United States v Crozier, 674 F2d 1293 (9th Cir. 1982) the Ninth Circuit vacated an ex pane restraining order, holding that

Even when exigent circumstances permit an ex pane restraining order, the government may not wait until trial to produce adequate grounds for forfeiture.

Section 848(d) authorizes the district court to enter such restraining orders as it deems proper. The section does not specify requirements for determining when a restraining order should issue. In the absence of specific language to the contrary, the district court must apply the standards of Rule 65 of the Federal Rules of Civil Procedure, which requires an immediate hearing whenever a temporary restraining order has been granted ex parte.

Id., at 1297. Accord United States v Spilotro, 680 F.2d 612 (9th Cir. 1982) (where government made an inadequate evidentiary showing at post-restraining order probable cause hearing, case is remanded for a further evidentiary hearing, with directions to vacate the restraining order if government fails to show it is likely to convince a jury beyond a reasonable doubt that defendant is guilty of crimes charged.) United States v Long, 654 F.2d 911, 915 (3rd Cir. 1981); United States v Beckham, 562 F. Supp. 488,489-90 (E.D. Mich. 1983).

The period between seizure and the commencement of proceedings

The forfeiture statutes specifically prohibit a property owner from bringing a replevin action (a civil suit seeking return of the property) when the property is seized under a forfeiture statute. See 21 U.S. Code Sec. 881(c). As a trade-off, the statutes require the government to file the forfeiture "promptly," although that requirement has no teeth in it. The length of time the government can delay before filing the forfeiture complaint is limited only by the Due Process clause and $8850. (See the Speedy Trial defense above). The problem is, $8850 motions can't be filed until the government files the complaint or libel of information, as the case may be. Claimants are often rendered destitute by seizure and indefinite detention of their automobiles.

Post-seizure probable cause determinations

The problem with allowing warrantless seizures of properly for forfeiture is that, in most courts, there is no probable cause determination at any time prior to trial. Because trials usually occur years after the seizure, the res is detained for an extended period of time without any determination of probably cause by a disinterested magistrate. When the res is the claimant's only automobile, or even virtually all of the claimant's assets-as RICO and CCE authorize this deprivation is extremely severe. The amount of process "due" under the Due Process Clause increases with the severity of the deprivation. Numerous law review articles in recent years have argued that the denial of a right to a post-seizure probable cause hearing is unconstitutional. See Strafer, End-Running the Fourth Amendment: Forfeiture Seizures of Real Property Under Admiralty Process, 25 Amer. Crim. L. Rev. 59 (1987); Note, Criminal Forfeiture and the Necessity for a Post-Seizure Hearing: Are CCE and RICO Rackets for the Government?, 57 St. Johns L. Rev. 776-804 (Summer 1983); Kandaras, Due Process and Federal Property Forfeiture Statutes: The Need for Immediate Post-Sei zure Hearing, 34 Southwestern L.J. 925 (1981).

In Patterson v District of Columbia, D.C. Superior Court # CA 5726-87, Judge Rufus King III ruled that the Fourth Amendment prohibition against unreasonable sei zures requires that a forfeiture claimant receive a prompt probable cause determination on demand. (Order dock eted January 6,1989), 117 W.L.R. 741, (April 13, 1989). This probable cause determination appears to be some thing in the nature of a Gerstein proffer. As of this writing, however, the remedy has not been implemented in Superior Court. Judge King's ruling was certified as a final appealable order, but as of this writing the D.C. government has not filed notice of appeal, although they have stated their intention to do so.

There is no corresponding remedy available yet in the federal courts, except where local court rules provide such a remedy. In both Federal and D.C. courts, motions for return of property, filed in the criminal case under Criminal Rule 41, sometimes provide a probable cause determination, although they are often ineffectual.

Notice

In federal cases, the DEA and FBI send out a one page notice telling the property owner to file a claim in writing with their office and to include with the claim a sum of money-the "cost bond"-which is $2500 or 10 percent of the value of the property seized, whichever is less (but at least $250)-if they want a judicial determination in the forfeiture case. They also advise claimants that they can opt for administrative determination of the forfeiture, through a petition for remission or mitigation, in which case they need not pay the cost bond.

Property owners should be advised to beware of this cheaper solution. Petitions for remission and/or mitigation are denied in the vast majority of cases, without a hearing or even written reasons for the denial, and the agency's discretion is unreviewable. See Administrative Remedies, below.

The notice of seizure may be sent at any time. In most cases it arrives six months or more after seizure. Claimants have to be on the lookout for its arrival, because they have only a short period of time to react. The claimant must respond by filing a claim and cost bond within 20 days after the first publication date of the published notice of seizure. 19 U.S.C. Sec. 1608. The notice is mailed out to the claimant just before the first publication date. The mailed notice specifies the publication in which the published notice will appear.

Forfeiture statutes and rules generally require published notice, although that is of negligible value to property owners. The Supreme Court has held that published notice alone is not sufficient notice under the due process clause when the names and addresses of owners of interests in property are readily ascertainable. In Mullane v Central Hanover Bank, 339 U.S. 306, (1950), the Supreme Court set the standard for notice:

An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated under all the circumstances to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections ... The notice must be of such a nature as reasonably to convey the required information ... and it must afford a reasonable time for those interested to make their appearance....

But when notice is a person's due, process which is a mere gesture is not due process.

Id. at 314-15.

The Supreme Court has found the names and addresses of claimants to be "readily ascertainable" by the government when they are available in the government's deed records and tax rolls. Schroeder v. City of New York, 371 U.S. 211 (1962). See also Vance u United States, 676 F.2d 183, 186 (5th Cir. 1982) (where police officers and DEA agents knew claimant's name and address, published notice alone was insufficient); Jaekel v United States, 304 F. Supp. 993 (S.D.N.Y 1969) (same).

When a claimant is a prisoner incarcerated by the same state that is attempting to forfeit his/her property, the government has knowledge of the person's whereabouts and must send notice to the person at his jail/prison address. Robinson v Hanrahan, 409 U.S. 38 (1972).

The federal government plays loose games with notice, and in a large percentage of cases, defects in notice can be found which can be grounds for collaterally attacking (in court) an administrative forfeiture. However, that adds exponentially to the trouble and expense of litigation. To be on the safe side every claimant should be warned to look out for certified mail, and to pick it up at the earliest opportunity. A prisoner should have someone watching his/her mail at his/her last residence. It is also a good idea to notify the government in writing, that a claimant is represented by counsel, and of any change of address, including any place of incarceration.

Claim and cost bond

Under federal law, in order to have the right to a judicial proceeding, a claimant must, along with his/her written claim, post a cost bond ($2500 or 10 percent of the value of the property, whichever is lower, but not less than $250). 19 U.S.C. 1608. The written claim does not have to fit any particular requirements as to format or contents, but should specify the seizure numbers and file numbers listed on the notice of the seizure, identify the person making the claim, state their interest in the property (i.e., owner, lienholder, etc.), an demand a judicial proceeding. The cost bond may be in cash, certified check, or "satisfactory sureties." 21 C.F.R. 1316.76(b).

Indigent claimants may file a Declaration In Support of Motion To Proceed In Forma Pauperis (use form 4 in the appendix to the Federal Rules of Appellate Procedure if the DEA is handling the case; the FBI uses its own forms which you can order from them over the phone).

Posting a cost bond does not result in the return of the property pending trial-instead, the bond is literally the cost the property owner has to pay for the judicial forfeiture proceedings. The cost bond is used as a security for the payment of storage fees, court fees, marshal's costs, etc. 21 C.F.R. 1316.76(b). If the claimant loses, he/she also loses the portion of the bond the court determines is necessary to offset court costs of the proceeding. If he/she wins, the bond is returned. Under 28 U.S.C. 2465, the successful claimant in a forfeiture case is not entitled to costs against the government if the court issues a certificate of probable cause for the forfeiture. United States u One 1969 Plymouth Two-DoorHardtop, 3608 Supp. 488 (M.D. Ala. 1973).

If the claimant does not file and post the bond or file an IFP declaration within the short period of time after receipt of notice, he/she forever loses the right to judicial proceedings in the forfeiture case. The agencies have been hardnosed about this time deadline, even though it so arbitrary. Because the agency's discretion is generally considered unreviewable, absent some reason that made it impossible to file a claim and cost bond on time (such as lack of notice) it would probably be very difficult to challenge an agency's refusal to allow extra time to respond. If constitutional grounds can be found for affording relief, the claimant can file a collateral attack on the forfeiture under 42 U.S.C. 1983. A claimant who fails to file a timely claim and cost bond can still file a petition for remission or mitigation with the agency, however. See Menkarell u Bureau of Narcotics, 463 F.2d 88 (3rd Cir. 1972).

Cost bonds have been held unconstitutional by a number of courts, although the current trend has been to uphold them.

Administrative forfeiture procedure

The notices sent out by the agency (DEA, FBI or customs) only sketchily describe the remedies claimants may pursue. They explain that one can avoid paying the cost bond by pursuing administrative remedies and waiving the judicial remedies. What it doesn't make clear is that if the claimant files only a petition for remission there will be no hearing, and the decision of the agency is unreviewable. The only evidence that will be considered is what they submit with their petition for remission. There is no discovery of the government's case. The administrative agencies deny petitions for remission or mitigation in a large number of cases, without giving detailed reasons. Claimants may pursue this administrative route along with the judicial route if they post the cost bond or qualify for in forma pauperis treatment.

Petitions for remission and/or mitigation must comply with the requirements of 21 C.F.R. 1316.79 through 1316.81, in DEA and FBI cases, or 19 C.F.R. 171-12 through 171.14 for customs seizures.

Judicial forefeiture procedure

The complaint or libel of information

In federal cases, judicial forfeiture proceedings are commenced with the filing of a complaint. The contents of the complaint are governed by Rules C and E of the Federal Supplemental Rules for Certain Admiralty and Maritime Claims (hereinafter cited as the Supplemental Rules). Rule C(2) provides:

In actions in rem the complaint shall be verified on oath or solemn affirmation. It shall describe with reasonable particularity the property that is the subject of the action and state that it is within the district or will be during the pendency of the action. In actions for the enforcement of forfeitures for violation of any statute of the United States the complaint shall state the place of seizure and whether it was on land or on navigable waters, and shall contain such allegations as may be required by the statute pursuant to which the action is brought.

The drafters of the rule did not, however, take the logical step farther and require a judicial determination of probable cause, based upon the allegations in the verified complaint, before the warrant of seizure would issue. When Rule C was amended in 1985, the drafters imposed a requirement of a probable cause determination but specifically exempted forfeiture cases from that provision. See Supplemental Rule C(3).

Supplemental Rule E(2) provides:

The complaint shall state the circumstances from which the claim arises with such particularity that the defendant or claimant will be able, without moving for a more definite statement, to commence an investigation of the facts and to frame a responsive pleading.

If the complaint does not comply with the Supplemental Rule C(2) and E(2) requirements of verification and specificity it is subject to dismissal. One 1980 Ford Mustang, 648 F. Supp. 1305, 1308 (N.D. Ind. 1986). United States u $39,000 in Canadian Currency, 801 R2d 1210, 1222 (10th Cir. 1986). The court may dismiss the complaint on these grounds sua sponte if it notifies the government of the intent to dismiss and gives the government an opportunity to amend the complaint. One 1980 Ford Mustang, supra, at 1308.

Claim and answer to the complaint or libel of information

Under federal law, the claimant must file:

A claim within 10 days after process has been executed, or within such additional time as may be allowed by the court, and shall serve an answer within 20 days after the filing of the claim. The claim shall be verified on oath or solemn affirmation, and shall state the interest in the property by virtue of which the claimant demands its restitution and the right to defend the action. If the claim is made on behalf of the person entitled to possession by an agent, bailee, or attorney, it shall state that the agent, bailee or attorney is duly authorized to make the claim.

Supplemental Rule C(6).

Failure to file a claim under Rule C(6) deprives the claimant of standing to defend against the forfeiture. United States u Fourteen Handguns, 524 F. Supp. 395, 397 (S.D. Texas 1981); United States v. One 1980 Ford Mustang, 648 F. Supp. 1305, 1307 (N.D. Indiana 1986).

The claim required here should not be confused with the claim which is filed with the administrative agency along with the cost bond. It has been held that the claim submitted to the administrative agency is insufficient to satisfy the Rule C(6) requirement, because it was not submitted to the court. One 1980 Ford Mustang, supra. In that case, however, the court permitted the late filing of the claim under the Rule C(6) provision that allows a filing "within such additional time as shall be allowed by the court" because the government had alleged no facts to show probable cause.

Under District of Columbia law, there is no requirement that the claimant file a separate claim. Although Rule 71 A-I(c) states that "if no answer or claim" is filed before the return date a default may be entered, the word "claim" does not appear elsewhere in the rule. In accepted practice in Superior Court, one document, commonly entitled "Claim and Answer to Libel" or merely "Answer," is filed in response to a Libel of Information.

Under federal law, the form and contents of the answer are governed by the ordinary rules of civil procedure. See Federal and Superior Court rules 8, 9, 10, 12 and 13, and Superior Court rule 3-I.

Counterclaims

There is conflicting authority as to whether claimants may counterclaim against the government for loss of use and depreciation of the res during the period of detention. Where the forfeiture is later determined to be void, it is clear that the government is liable for depreciation. United States u One 1965 Chevroletlmpala Convertible, 475 R2d 882 (6th Cir. 1973). However, a federal statute immunizes the federal government and officials from liability if the court finds there was reasonable cause for the seizure and issues a certificate of probable cause. 28 U.S.C. § 2465. If there was no probable cause for the seizure, then the detention would be a temporary taking for which just compensation must be paid. Depreciation is an item of damages in takings cases. See also 28 U.S.C. § 2680(c), exempting from Federal Tort Claims Act's waiver of sovereign immunity claims arising out of the detention of goods or merchandise by any officer of customs or excise or other law enforcement officers. See Kosak u United States, 465 U.S. 850 (1984).

Jury demand

Claimants in forfeiture cases have a right to a jury trial. United States u One 1976 Mercedes Benz, 618 F.2d 453 (7th Cir. 1980); One Plymouth Automobile v United States, 165 R2d 186 (5th Cir. 1948); Pernell u Southall Realty, 416 U.S. 363 (1974). However, when the government has impounded an automobile, or another asset which depreciates rapidly or is vital to the claimant's livelihood, most claimants want a trial as soon as possible. Demanding a jury trial puts the case on a slower track-the first trial date in Superior Court Civil II jury calendar cases is often three years or more after the answer is filed, compared to one and a half to two years on the nonjury calendar.

A jury trial is waived unless demanded in the answer or within ten days after filing the answer. The jury demand must specify a jury of twelve, or else a jury of six will be provided. A jury demand fee of $75 must be paid at the time of filing of the demand, unless the court has granted permission to proceed in forma pauperis. If the case does not go to trial, the $75 may be refunded.

Vacating default judgments

 

Motions to vacate a default judgment are governed by Civil Rule 55(c). The motion must be accompanied by

 

A verified answer setting up a defense sufficient if proved to bar the claim in whole or in part...... NNo answer need be filed if the movant accompanies the motion with a settlement agreement or a proposed consent judgment signed by both parties.... [nor] when the movant asserts a lack of subject-matter or personal jurisdiction or when the default was entered after the movant had filed an answer."

SCR-Civil Rule 55(c). The Supreme Court has held that it is unconstitutional to require a litigant who has not received notice to file a verified answer in order to vacate a default judgment:

[A] judgment entered without notice or service is constitutionally infirm....

Where a person has been deprived of property in a manner contrary to the most basic tenets of due process, "it is no answer to say that in his particular case due process of law would have led to the same result because he had no adequate defense upon the merits." Coe v Armour Fertilizer Works, 237 U.S. 413 (1915).

Peralta v Heights Medical Center, Inc., 485 U.S. 80 (1988).

Discovery

Discovery in civil forfeiture cases is governed by the civil rules, which are much broader than criminal discovery rules. Often the government cites this ability of the criminal defendant to obtain discovery, through the forfeiture case, of information which he/she would not be entitled to in the criminal case, in arguing for a stay of forfeiture proceedings pending the disposition of related criminal charges.

The government's discovery from the defendant is also broader under the civil rules; however, the privilege against self-incrimination applies to forfeitures. In United States v. United States Coin & Currency, 401 U.S. 715, 719, 723 (1971) the Supreme Court so held, quoting Boyd u United States, 116 U.S. 616, 634 (1886):

"proceedings instituted for the purpose of declaring the forfeiture of a man's property by reason of offences committed by him, though they may be civil in form, are in their nature criminal" for Fifth Amendment purposes... [T]he Fifth Amendment's privilege may properly be invoked in these proceedings.

The Sixth Circuit, in United States v United States Currency, 626 R2d 11 (6th Cir. 1980), held that the Fifth Amendment privilege against self-incrimination could be asserted in forfeiture cases, but that the privilege does not require dismissal of the forfeiture action merely because Fifth Amendment privileges may be asserted in answering interrogatories.

The Supreme Court has declared that: ". . . government cannot penalize assertion of the constitutional privilege against self-incrimination by imposing sanctions to compel testimony which has not been immunized . . . the touchstone of the Fifth Amendment is compulsion, and direct economic sanctions and imprisonment are not the only penalties capable of forcing the self-incrimination which the Amendment forbids." Lelkowitz v Cunning ham, 431 U.S. 801, 806,97 S. Ct. 2132, 2136, 53 L. Ed. 2d 1 (1977)...... The Supreme Court has disapproved of procedures which require a party to surrender one constitutional right in order to assert another." Wehling v Columbia Broadcasting System, 608 R2d 1084, 1088, (5th Cir. 1979).

Id. at 14.

Failure to cooperate in discovery

A large number of pro se forfeiture claimants fail to answer interrogatories, perhaps because they do not understand how to answer them or they are afraid to incriminate themselves. In such cases, the government generally files a motion to compel discovery under SCR-Civil Rule 37(a), requesting sanctions.

A party who prevails on a motion to compel discovery is entitled to attorneys fees and costs for filing the motion, under Superior Court Civil Rule 37(a)(4). However, the rule exempts the government (D.C. or federal) from having to pay attorneys fees or costs for abuse of discovery. SCR-Civil Rule 37(f). The equivalent Federal Rule has been repealed.

Motions

In civil forfeiture cases, motions practice is governed by the civil rules. However, quasi-criminal issues, such as denial of speedy trial or the suppression of evidence, do not fit tidily into any of the civil motions rules. Because there are issues of fact which must be resolved by an evidentiary hearing, a motion for summary judgment is not appropriate for these issues. The motions authorized by Civil Rule 12 are also inappropriate. The Supreme Court cases applying these criminal procedural requirements to forfeiture cases do not discuss what kind of motions to raise them in.

Burden of proof

In criminal forfeiture cases, such as those brought under RICO (18 U.S.C. § 1963), the Continuing Criminal Enterprise statute (21 U.S.C. § 848), and the criminal forfeiture provision of the federal drug laws (21 U.S.C. § 853), the burden of proof is on the government to prove beyond a reasonable doubt that the property is subject to forfeiture.

Under both federal and District of Columbia civil forfeiture statutes the burden of proof is on the government to show "probable cause," as it is defined in the criminal courts to support a suppression motion or a search warrant. Brynegar u United States, 338 U.S. 160, 175-76 (1949). Once the government establishes probable cause the burden shifts to the claimant to show by the preponderance of the evidence that the property is not subject to forfeiture. 33 D.C. Code 552(d)(3)(G).

The constitutionality of applying the civil burden of proof to forfeiture cases has been considered in: United States v. $2500,689 F.2d 10 (2nd Cir.1982), and Bramble u Richardson, 498 F.2d 968 (10th Cir.), cert. denied, 419 U.S. 1069 (1974). However, both cases held only that proof beyond a reasonable doubt was not constitutionally required in civil forfeiture cases. Neither specifically addressed the issue of whether probable cause was too low a burden of proof for the deprivation of such valuable property rights.

Stays during pendency of criminal case

Because the broad civil discovery rules applicable in civil forfeiture cases can be used to obtain evidence which is not discoverable under the criminal rules, the government often requests a stay of the civil forfeiture proceeding pending the disposition of the criminal case. Such stays should not be granted automatically, for undue delay in holding the forfeiture trial implicates the due process clause. United States u Banco Cafetero Panama, 797 F2d 1154 (2d Cir. 1986).

In Landis v. North American Co., 299 U.S. 248 (1936), the Supreme Court stated:

[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance.... True, the suppliant for a stay must make out a clear case of hardship or inequity in being required to go forward, if there is even a fair possibility that the stay for which he prays will work damage to some one else. Only in rare circumstances will a litigant in one cause be compelled to stand aside while a litigant in another settles the rule of law that will define the rights of both. Considerations such as these, however, are counsels of moderation rather than limitations upon power. There are indeed opinions, though none of them in this court, that give color to a stricter rule. Impressed with the likelihood or danger of abuse, some courts have stated broadly that, irrespective of particular conditions, there is no power by a stay to compel an unwilling litigant to wait upon the outcome of a controversy to which he is a stranger. . . .

Such a formula, as we view it, is too mechanical and narrow. All the cases advancing it could have been adequately disposed of on the ground that discretion was abused by a stay of indefinite duration in the absence of a pressing need.

299 U.S. at 254-55.

When the forfeiture case involves a third party not involved in the criminal action the calculus is different. When other means could be employed to protect the criminal prosecution from the risk of revealing undiscoverable information through civil discovery, such as protective orders, in camera discovery, sealed files, and other restrictions on dissemination of discovery materials, the government's need for the stay is easily outweighed by the claimant's due process rights under United States u $8,850, 461 U.S. 555 (1983).

Expediting the trial

There is currently no procedure available to expedite the trial date, in either the federal or local system. Even though the quasi-criminal nature of forfeiture actions requires speedy trial the federal courts make a practice of advancing trial dates in forfeiture cases in front of nonquasi criminal cases.

Still there are things that can be done to speed up the process. The squeaky wheel doctrine often helps. Filing a motion for return of property or a motion to dismiss for denial of speedy trial may bring immediate results. Even if the motion is denied, at least it makes a record that the claimant is asserting his/her rights to a speedy resolution of the case.

Stays pending appeal

Stays of orders of forfeiture, or orders denying forfeiture, pending appeal are governed by Civil Rule 62.

It has been held by some courts that when a claimant loses a forfeiture trial and fails to obtain a stay of the court order, the resulting sale or disposal of the vehicle deprives the court of jurisdiction over the appeal. United States u $57,480.05,722 F.2d 1457 (9th Cir.1984); Alyeska Pipe line Service Co. u Vessel Bay Ridge, 703 F.2d 381(1983); Canal Steel Works v One Drag Line Dredge, 48 F.2d 212 (5th Cir.), cert. denied, 284 U.S. 647 (1931). However, the improper destruction or release of the res despite a valid stay does not deprive the court of jurisdiction over the appeal. The Rio Grande, 90 U.S. 458 (1874).

This rule is particularly harsh in a situation where the res is a depreciating asset such as a car and there exists no mechanism by which a substitute res (such as a surety bond) can be posted to preserve the jurisdiction of the court. An extension of this rule to situations where the claimant prevails at trial and the government appeals produces absurd results. This is another area in which the court should tailor a remedy-such as a stipulation of jurisdiction, or a substitute res, so that the value of the property is not disipated during the pendency of the appeal.

Motions for return of property and other collateral remedies

At present, a claimant can still file a motion for return of property, under criminal rule 41 in the pending criminal case-at least if he/she is a defendant in that case. In Re Seizure Warrant (Appeal of Cyril Onwuasoanya), 830 F.2d 372 (D.C. Cir. 1987). Some judges have been denying such motions without a hearing, requiring instead that the government file a forfeiture action within a specified time period. However, a few favorable rulings have been obtained at the trial level giving claimants some remedy for the prolonged detention of property seized without a warrant, and without any determination of probable cause to believe it is forfeitable. In two recent cases in Washington, D.C. the claimants filed motions for the return of property in the criminal case, pursuant to Criminal Rule 41, and succeeded in getting a hearing on the motion before the criminal judge.

In United States u Zarbough, 115 D. Wash. L. Rptr. 273 (February 11, 1987), Judge Taylor granted a motion for return of property with regard to a seized car, but denied return of the money seized, when the facts supported only the offense of simple possession. The court pointed out that Section 33-552(C) "specifically exempts from forfeiture conveyances used solely in connection with the unlawful possession of any controlled substances, . . . " Id. at 275.

In United States v Golden, Judge Von Kann, who had taken the guilty plea of the criminal defendant to a misdemeanor, held that the automobile, which was owned by the defendant's father, would be returned to him pending trial in the forfeiture case, upon the posting of a bond by the owner sufficient to cover the losses to the District in the event the government prevailed at trial. In so ruling, the court stated:

In short, the evidence presented at the hearing overwhelmingly established that the use of this automobile to facilitate the transportation of controlled substances was carried on wholly without the owner's knowledge or consent. Accordingly, absent additional evidence which might change this conclusion, the subject vehicle is indeed exempt from [forfeiture] under D.C. Code Sec. 33-552.

[I]n view of the strong showing made by defendant at the hearing on this motion, it seems unfair to require that the vehicle remain parked on the District's impoundment lot for the months or years that may pass before the civil forfeiture proceeding is concluded. Doing so would deprive defendant and his family of the use of the vehicle for a long time while its value gradually declines. Even if they ultimately recover the vehicle after successfully prevailing in the libel action, there is no provision in Section 33-552 to compensate them for the loss of the use of the vehicle during this time or its diminished value. United States u Golden, 115 D. Wash. L. Rptr. 733, 738, 739 (April 13, 1987).

The fact that other judges have summarily denied relief should not deter attorneys from pursuing relief through a motion for return of property. Even when the court denies a hearing on the motion, usually the court will require the government to file a forfeiture action by a certain time, which expedites the case to some extent. Furthermore, filing a motion for return of property was recognized by the Supreme Court, in $8850, as a way to assert a demand for a speedy trial for purposes of a later filed $8850 motion.

Because the forfeiture statutes themselves bar claimants from filing replevin actions (civil suits for the return of property), the claimant generally has only two options to secure relief-through a motion for return of property in the criminal case or through the forfeiture action itself. A number of courts have held that claimants who receive notice of the forfeiture process cannot ignore those procedures and file a collateral suit; in many of those cases the court states that it lacks jurisdiction to entertain a collateral suit.

However, in some situations courts do allow collateral suits.

Lack of notice

Where the property was forfeited without constitutionally adequate notice to the claimant, the courts must provide relief, either by vacating the default judgment, or by allowing a collateral suit. See Seguin v Eide, 720 F2d 1046 (9th Cir. 1983), on remand after judgment vacated, 462 U.S.1101,103 S. Ct. 2446 (1983); Wiren v Eide, 542 F2d 757 (9th Cir. 1976). Menkarell v. Bureau of Narcotics, 463 F2d 88 (3rd Cir. 1972); Jaekel v United States, 304 F Supp. 993 (S.D.N.Y 1969); Glup v United States, 523 F2d 557, 560 (8th Cir. 1975).

In the past there was some authority for the proposition that, even when claimants are deprived of due process by forfeiture of their property without notice, they have to show that they have a meritorious defense in order to get relief. See, e.g., Cepulonis v United States, 543 F. Supp. 451 (E.D.N.Y 1982) (where claimant was deprived of due process for failure to receive notice of forfeiture, he was only entitled to nominal damages where he could not show he had a meritorious defense.) However, that case was overruled by the Supreme Court in Peralta v Heights Medical Center, Inc., 485 U.S. 80, (1988). Peralta held that:

[I]t is not denied by appellee that under our cases, a judgment entered without notice or service is constitutionally infirm.

The Texas courts nevertheless held, as appellee urged them to do, that to have the judgment set aside, appellant was required to show that he had a meritorious defense, apparently on the ground that without a defense, the same judgment would again be entered on retrial and hence appellant had suffered no harm from the judgement entered without notice. But this reasoning is untenable. As appellant asserts, had he been given notice of the suit, he might have impleaded the employee whose debt had been guaranteed, worked out a settlement, or paid the debt. He would also have preferred to sell his property himself in order to raise funds rather than suffer it being sold at a constable's auction.

Where a person has been deprived of property in a manner contrary to the most basic tenets of due process, "it is no answer to say that in his particular case due process of law would have led to the same result because he had no adequate defense upon the merits." Coe v. Armour Fertilizer Works, 237 U.S. 413, 35 S. Ct. 625, 629, 59 L. Ed. 1027 (1915). As we observed in Armstrong v. Manzo, 380 U.S. 545, 552 (1965), only "wip[ing] the slate clean ... would have restored the petitioner to the position he would have occupied had due process of law been accorded to him in the first place." The Due Process Clause demands no less in this case.

Peralta, supra, 108 U.S. at 898-99, 900.

Void forfeitures

When a forfeiture is void, there is no question but that the claimant may collaterally attack it and obtain return of the property or compensation for its value. The Supreme Court declared a gambling forfeiture statute to be void in United States u United States Coin & Currency, 401 U.S. 715 (1971). The statute in that case required gamblers to register and pay a gambling tax, and provided for forfeiture of proceeds as an additional sanction. The Court relied on the criminal cases of Marchetti v. United States, 390 U.S. 39 (1968) and Grosso u United States, 390 U.S. 62 (1968) in holding that penalizing the failure to register as a gambler "unconstitutionally burdened the privilege against self-incrimination," and therefore the statute violated the Fifth Amendment. Because the forfeiture statute was itself unconstitutional, the forfeiture was void.

Other cases finding a forfeiture statute to be constitutionally deficient have read into the statute the requirements of the constitution, and thus avoided vacating the forfeitures obtained under the statute. However, individual forfeitures may nevertheless be vacated if the statute as applied to that case violated the Constitution. Whether those would be void or voidable is another question.

 RULE 3.8 SPECIAL RESPONSIBILITIES OF A PROSECUTOR


  The prosecutor in a criminal case shall:

  (a) refrain from prosecuting a charge that the prosecutor knows is not
supported by probable cause;

  (b) make reasonable efforts to assure that the accused has been advised of
the right to, and the procedure for obtaining, counsel and has been given
reasonable opportunity to obtain counsel;

  (c) not seek to obtain from an unrepresented accused a waiver of important
pretrial rights, such as the right to a preliminary hearing;

  (d) make timely disclosure to the defense of all evidence or information
known to the prosecutor that tends to negate the guilt of the accused or
mitigates the offense and, in connection with sentencing, disclose to the
defense and to the tribunal all mitigating information known to the
prosecutor, except when the prosecutor is relieved of this responsibility by
a protective order of the tribunal;

  (e) not subpoena a lawyer in a grand jury or other criminal proceeding to
present evidence about a past or present client unless the prosecutor believes:

     (1) the information sought is not protected from disclosure by an applicable privilege;

     (2) the evidence sought is essential to the successful completion of an
ongoing investigation or prosecution; and

     (3) there is no other feasible alternative to obtain the information;

  (f) except for statements that are necessary to inform the public of the
nature and extent of the prosecutor's action and that serve a legitimate law
enforcement purpose, refrain from making extrajudicial comments that have a
substantial likelihood of heightening public condemnation of the accused and
exercise reasonable care to prevent investigators, law enforcement
personnel, employees or other persons assisting or associated with the
prosecutor in a criminal case from making an extrajudicial statement that
the prosecutor would be prohibited from making under Rule 3.6 or this Rule.


Comment

  [1] A prosecutor has the responsibility of a minister of justice and not
simply that of an advocate. This responsibility carries with it specific
obligations to see that the defendant is accorded procedural justice and
that guilt is decided upon the basis of sufficient evidence. Precisely how
far the prosecutor is required to go in this direction is a matter of debate
and varies in different jurisdictions. Many jurisdictions have adopted the
ABA Standards of Criminal Justice Relating to the Prosecution Function,
which in turn are the product of prolonged and careful deliberation by
lawyers experienced in both criminal prosecution and defense. Applicable law
may require other measures by the prosecutor and knowing disregard of those
obligations or a systematic abuse of prosecutorial discretion could
constitute a violation of Rule 8.4.

  [2] In some jurisdictions, a defendant may waive a preliminary hearing and
thereby lose a valuable opportunity to challenge probable cause.
Accordingly, prosecutors should not seek to obtain waivers of preliminary
hearings or other important pretrial rights from unrepresented accused
persons. Paragraph (c) does not apply, however, to an accused appearing pro
se with the approval of the tribunal. Nor does it forbid the lawful
questioning of an uncharged suspect who has knowingly waived the rights to
counsel and silence.

  [3] The exception in paragraph (d) recognizes that a prosecutor may seek
an appropriate protective order from the tribunal if disclosure of
information to the defense could result in substantial harm to an individual
or to the public interest.

  [4] Paragraph (e) is intended to limit the issuance of lawyer subpoenas in
grand jury and other criminal proceedings to those situations in which there
is a genuine need to intrude into the client-lawyer relationship.

  [5] Paragraph (f) supplements Rule 3.6, which prohibits extrajudicial
statements that have a substantial likelihood of prejudicing an adjudicatory
proceeding. In the context of a criminal prosecution, a prosecutor's
extrajudicial statement can create the additional problem of increasing
public condemnation of the accused. Although the announcement of an
indictment, for example, will necessarily have severe consequences for the
accused, a prosecutor can, and should, avoid comments which have no
legitimate law enforcement purpose and have a substantial likelihood of
increasing public opprobrium of the accused. Nothing in this Comment is
intended to restrict the statements which a prosecutor may make which comply
with Rule 3.6(b) or 3.6(c).

   [6]  Like  other lawyers, prosecutors are subject to Rules 5.1  and  5.3,
which  relate to responsibilities regarding lawyers and nonlawyers who  work
for  or  are associated with the lawyer's office. Paragraph (f) reminds  the
prosecutor  of  the importance of these obligations in connection  with  the
unique  dangers of improper extrajudicial statements in a criminal case.  In
addition, paragraph (f) requires a prosecutor to exercise reasonable care to
prevent  persons  assisting or associated with the  prosecutor  from  making
improper extrajudicial statements, even when such persons are not under  the
direct  supervision  of  the  prosecutor. Ordinarily,  the  reasonable  care
standard will be satisfied if the prosecutor issues the appropriate cautions
to law-enforcement personnel and other relevant individuals.


[Amended effective September 1, 2006.]

RPC RULE 1.1 COMPETENCE


    A lawyer shall provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.

Comment

Legal Knowledge and Skill

  [1] In determining whether a lawyer employs the requisite knowledge and
skill in a particular matter, relevant factors include the relative
complexity and specialized nature of the matter, the lawyer's general
experience, the lawyer's training and experience in the field in question,
the preparation and study the lawyer is able to give the matter and whether
I it is feasible to refer the matter to, or associate or consult with, a
lawyer of established competence in the field in question. In many
instances, the required proficiency is that of a general practitioner.
Expertise in a particular field of law may be required in some circumstances.

  [2] A lawyer need not necessarily have special training or prior
experience to handle legal problems of a type with which the lawyer is
unfamiliar. A newly admitted lawyer can be as competent as a practitioner
with long experience. Some important legal skills, such as the analysis of
precedent, the evaluation of evidence and legal drafting, are required in
all legal problems. Perhaps the most fundamental legal skill consists of
determining what kind of legal problems a situation may involve, a skill
that necessarily transcends any particular specialized knowledge. A lawyer
can provide adequate representation in a wholly novel field through
necessary study. Competent representation can also be provided through the
association of a lawyer of established competence in the field in question.

  [3] In an emergency a lawyer may give advice or assistance in a matter
in which the lawyer does not have the skill ordinarily required where
referral to or consultation or association with another lawyer would be
impractical. Even in an emergency, however, assistance should be limited to
that reasonably necessary in the circumstances, for ill-considered action
under emergency conditions can jeopardize the client's interest.

  [4] A lawyer may accept representation where the requisite level of
competence can be achieved by reasonable preparation. This applies as well
to a lawyer who is appointed as counsel for an unrepresented person.
See also Rule 6.2.

Thoroughness and Preparation

  [5] Competent handling of a particular matter includes inquiry into and
analysis of the factual and legal elements of the problem, and use of
methods and procedures meeting the standards of competent practitioners. It
also includes adequate preparation. The required attention and preparation
are determined in part by what is at stake; major litigation and complex
transactions ordinarily require more extensive treatment than matters of
lesser complexity and consequence. An agreement between the lawyer and the
client regarding the scope of the representation may limit the matters for
which the lawyer is responsible. See Rule 1.2(c).

Maintaining Competence

  [6] To maintain the requisite knowledge and skill, a lawyer should keep
abreast of changes in the law and its practice, engage in continuing study
and education and comply with all continuing legal education requirements
to which the lawyer is subject.


[Amended effective September 1, 2006.]

What Due Process Should be Provided to Dog Owners Before the Government can Remove or Euthanize Their Dogs?
Jennifer Wang (2007)

How Does Due Process Apply to Dog Seizure/Euthanasia Cases?

Despite the fact that animals are still considered property in all legal jurisdictions today, due process, whether rooted in the federal or state constitutions, extends to “life, liberty, or property.”  The more complicated issue, however, is how much process is due?  The Supreme Court has promulgated a four prong test to determine this.  In each situation, a court must weigh

1. the private interest affected by the official action
2. the risk of an erroneous deprivation of that interest through the procedures used
3. the probable value of additional procedural safeguards, and
4. the government interest involved.

Mathews v. Eldridge, 424 U.S. 319, 335 (1976).  Due process requires the opportunity to be heard “at a meaningful time and in a meaningful manner.”  Rabon v. City of Seattle (Rabon II), 107 Wash.App. 734, 743 (2001) (citing Mathews, 424 U.S. at 333).  Thus, when individuals can show they will suffer irreparable harm from a post-deprivation hearing, courts have recognized that a pre-deprivation hearing is necessary.  In the case of orders to euthanize pets, many courts have considered the loss to the pet owner as irreparable.
Before the Hearing: Filing a Petition for a Preliminary Injunction

Dog owners should file a petition for an injunction to delay the killing of the dog until they have had the chance to be heard in court (For an actual example, see Petition for Preliminary and Permanent Injunction in the case of Wilson v. City of St. Louis (1990), which involved a Pit Bull named "Max" who was impounded and classified as “dangerous” because he allegedly killed the neighbor’s dog.  The Circuit Court found that the plaintiff would suffer irreparable harm if the preliminary injunction was not granted and enjoined the city from killing or otherwise harming Max.  The court ordered the city to release Max and change his “dangerous” designation to “potentially dangerous.”).
Overriding the Decision - Petition for a Writ of Mandamus

Due process includes more than just going through the motions of a hearing.  In fact, even after hearings have been granted, decisions can be challenged as a prejudicial abuse of discretion that is not based on findings of fact or law.  (This is what the owners of “Boo,” a bullmastiff who allegedly bit a child, argued in Williams v. Orange County Animal Control (1996)).  In this case, owners should file a Petition for a Writ of Mandamus, a judicial remedy issued by a superior court to compel a government officer to do or forbear from doing a specific act, to delay the euthanasia order until the appeal can be heard.  This writ of mandamus applies in any situation in which the euthanasia should be stayed, including scenarios in which an original hearing was never given.
Minimum Standards of Due Process for the Hearing

It is now also clear that hearings must meet certain minimum standards.  Informal reviews that animal control agencies frequently provide upon the dog owner’s request often do not fulfill these requirements, because the decision-maker may not be qualified to render the judgment or may not be impartial if he also made the original decision to euthanize the dog.  For example, in Phillips v. San Luis Obispo County Dept., 228 Cal.Rptr. 101 Cal.App. (2 Dist.,1986), the owners of “Missy,” a black lab known to have a bad habit of biting children, contested the city’s decision to euthanize her.  The amicus brief filed by Joyce Tischler of the Animal Legal Defense Fund pointed out the Municipal Codes at issue did not provide for the Animal Regulation Director’s orders to be reviewed by the Chief Sanitarian of the County Health Department or the supervising environmental health officer, the two individuals who presided over the first and second hearings.
Challenges to the Ordinance Itself

In fact, many city ordinances are flawed in that they fail to specify that owners are entitled to hearings before their pets are euthanized.  These municipal codes can be challenged as unconstitutional and, even if the city already granted hearings that met minimum due process standards, the decision to euthanize the pet would still have to be overturned.  Otherwise, whether dog owners generally would receive due process would be at the whim of the animal control agency, and the city could avoid having to correct its municipal codes simply by voluntarily giving all dog owners a hearing.  The court of appeals in Missy’s case agreed, concluding “that the ordinances here are unconstitutional for failure to provide for notice and a hearing either before or after the seizure of an uncontrollable biting or vicious dog.”

Most recently, in a landmark case, the court of appeals in Mansour v. King County, 128 P.3d 1241 (Wash.App. Div. 1,2006) held that due process required even more than offering owners a hearing, ordering that “an agency seeking to enforce a removal order must prove both the violation and the remedy it has imposed by a preponderance of the evidence.”  This is the same standard of proof imposed on the government when it attempts to temporarily remove a child from the custody of his parents.  By instituting a burden of proof on the city, the court was essentially finding that the dog must be presumed innocent until the city can prove otherwise.  Previously, there had been no standard of proof, and reviewing courts would only look to see if Animal Control had acted arbitrarily or capriciously.  Thus, even the most minimal evidence that a dog should be removed would suffice, and owners would bear the burden of proving their pets innocent.  Moreover, the court found that due process attached not only for orders to euthanize an animal, but also for orders of removal outside the county (Peter Mansour had been ordered to remove his dog from the county or turn his dog over to the city to be euthanized after his dog was accused of killing a cat).

Finally, the court held that due process required Mansour to have the ability to subpoena records and witnesses in his defense, and that the Notice and Order of Violation had to specify exactly what code provisions had been violated.  Merely issuing a “brief and concise description of the conditions for finding the violation… is insufficient.”  Mansour was “entitled to know ahead of time exactly what the County needed to prove at the Board hearing.  If in fact it could not prove that Maxine violated a code provision that supported the removal order, he [Mansour] was entitled to know that in time to move for a dismissal at the Board level.”  Id. at 1250.

The following questions represent some frequently asked questions dog owners may encounter.  Remember that dog laws not only vary state to state, but also city to city.  These answers are not meant to provide legal advice, but rather to provide a starting point to research an issue in your own jurisdiction.

Can a dog control officer enter my house without permission to take my dog?
Generally, any law enforcement officer must have a warrant to enter your home unless there are “exigent circumstances” involved.  Exigent circumstances, or those conditions that necessitate immediate action by law enforcement officials, do not apply to minor infractions, such as violation of a leash law or licensing ordinance.  Further, several states have adopted statutes that exempt local dog control laws as exigent circumstances for purposes of warrantless entry into homes.  For more on this topic, see Detailed Discussion of Dog Impound Laws.

My dog escaped and was impounded.  How long do I have to retrieve him

The time a municipality has to hold a dog may be governed by local ordinance or state statute.  Again, this varies from state to state, town to town, but usually the length of time is anywhere from five (5) to seven (7) days.  In some states, the time period may be shorter.  Note that in many states the clock does not begin to run until notice is given to the owner of a licensed dog.  In many cases, unlicensed dogs are considered “loose” or “at large” and may be subject to immediate impoundment or sometimes immediate destruction.  The best situation is to have your dog wear a collar with appropriate license tags.  If your dog escapes, be sure to check local animal control facilities immediately to put them on notice that you will retrieve your dog as soon as possible.  For more on this specific topic, see Detailed Discussion of Dog Impound Laws.

Dog control officers killed my dog even though she wasn’t violating any laws.  What recourse do I have?

There are two approaches that have been used when suing officers who have unlawfully killed dogs.  The first approach is to sue the officer for a violation of due process under law.  The second approach involves a claim of an unauthorized “taking” of property (a dog, since dogs are viewed as property under all states’ legal system).  Both of these suits occur as part of a civil right suit under § 1983 of the United States Code.  These lawsuits charge a deprivation of right while an individual was acting under “color of law.”  Essentially, this means an officer denied someone a constitutionally guaranteed right while carrying out his or her job.  Nearly all federal courts have rejected claims based on due process violations.  However, some are willing to consider unauthorized taking claims based on the misconduct of an officer in killing a dog.  The problem is that a person bringing the suit must overcome an officer’s immunity; that is, the protection a person who works for the government has against lawsuits when carrying out his or her duties.  In general, it is difficult for a dog owner to prevail in these suits unless the officer’s action were clearly outside the bounds of his or her job, or the action was egregious in nature.  A person may also sue a person in state court for damages in the loss of a pet.  Again, however, damages are limited to the market value of a pet (usually a low monetary value).  For further discussion on police shooting pets, click here.  For more on officer liability and impoundment or destruction, click here.  Also see the Pet Damages Topic Area in the Web Center.  

What happens if my dog gets loose?

The answer to this question depends on whether your dog has a collar and is licensed.  In some states, a loose and unlicensed dog may be subject to immediate destruction.  Most of the time your dog will be impounded immediately if not wearing a licensed.  A few states put a burden on the animal control officer to take reasonable steps to find the owner of a licensed dog.  Generally, a loose dog will be impounded and notice will be sent to the owner if the owner can be determined.  For more on loose dogs, click here.

I can no longer care for my dog and fear I must take him to the dog pound.  What will happen to him?

A dog who is voluntarily surrendered to a dog pound faces the fate of all dogs taken to the pound.  If not sold or adopted, a dog will generally be humanely euthanized after a short period of time.  Keep in mind that many states have provisions that provide for the donation or selling of pets to scientific research facilities.  A state may allow the owner of a voluntarily impounded pet to prevent his or her pet from being sold for research.  Short of adoption, the alternative is generally euthanization.  For more on impoundment, click here.

A loose dog is chasing my horses and sheep.  What can I do?

Many states provide that dogs who chase livestock or even big game face destruction or impoundment.  Your state may have procedures in place where you can file a formal complaint against the owner of a dog who chases your livestock.  You can also call an animal control officer who may take immediate measures if the dog is still in pursuit of livestock.  Ironically, animals found to be chasing livestock or big game in certain states face much harsher and immediate penalties than those found to be chasing people.  For more on dogs chasing livestock, click here.

What happens if I don’t pay my dog license fee?

Dog license fee are generally set by the locality where the dog resides.  States give these municipalities great latitude in setting fees and dog taxes.  In some states, failure to pay license fees not only prevents the issuing of a license, but may also make the dog subject to impoundment.  The best course of action is to talk to local licensing authorities to see if an arrangement can be made for gradual or partial payment.  For more on dog licensing, click here.

Can I let my dog run loose?

The answer to this may depend on whether the locality you live in has adopted an ordinance that strictly prohibits dogs at large.  Some states allow localities to adopt measures by a ballot initiative (a proposal on the ballot that voters must pass to become effective).  Other states prohibit any loose dogs by state statute.  The determining factor whether a dog is considered “loose” may be whether it is in the immediate presence of its owner or whether it has on a collar with dog tags.  In any event, a dog running at will should be collared and licensed and within the owner’s presence to prevent impoundment or injury to others.  For more on loose dogs, click here.

The laws in my city seem to conflict with the state laws on regarding my dog.  Which laws do I follow?

The question implicates the issue of preemption:  whether a lower local law is “trumped” by a higher state law.  If the two laws do not conflict, there is not a problem and both laws must be followed.  If, however, the lower law tries to regulate something the higher state law already regulates, then the lower law has been preempted.  State laws usually give great deference or authority to local units to regulate dogs.  But laws that deal with complex and far-reaching issues such as rabies quarantines and dangerous dogs may be exclusively up to the state to regulate.  The local government may be able to help you sort out the conflict in laws.  If following the lower law has led to further problems for you or if you feel following the local law may contradict the state law, consult an attorney.  An argument of preemption may help to invalidate a local law that stretches the municipality’s authority to regulate.  For more on preemption, click here.

What types of things can a local government regulate with respect to dogs?
A local government is given broad authority to regulate dogs.  This stems from the state’s “police power” or the power to regulate those things affecting the health, safety, and welfare of its citizens.  The state then expressly or impliedly gives this authority to local governments to regulate things affecting dogs and other animals.  Local municipalities are generally in a better position than the state to determine what specific dog laws are needed.  Remember this power is broad and often swift – such measures will almost always be upheld in court if challenged.  These actions do have to meet constitutional standards especially if notice to the owner is required before an action is taken against a dog.  For more on police powers of local and state governments, click here.  For summaries of some state-by-state dog statutes, click here.

RESCUE ME : LEGISLATING COOPERATION BETWEEN ANIMAL CONTROL AUTHORITIES AND RESCUE ORGANIZATIONS, Rebecca J. Huss, 39 Conn. L. Rev. 2059 (2007).

Lost and Found: Humane Societies' Rights and Obligations Regarding Companion Animal Ownership, Patricia A. Bolen, Animal Legal & Historical Center (2005).

The Golden Retriever Rule: Alaska's Identity Privilege for Animal Adoption Agencies and for Adoptive Animal Owners, John J. Tiemessen and Jason A. Weiner, 21 Alaska L. Rev. 77 (2004).
An Examination of State Dog Impound Laws
Rebecca F. Wisch

Animal Legal & Historical Center
Publish Date: 2003
Place of Publication: Michigan State University - Detroit College of Law
Printable Version

An Examination of State Dog Impound Laws

Topic Table of Contents:
1.  Introduction
2.  Exercise of General Police Power to Impound or Kill Dogs
3.  Loose Dogs or Dogs Running at Large
4.  Notice of Impoundment
5.  Length of Impoundment
6.  Due Process and Impoundment
7.  Fourth Amendment Concerns and Impoundment
8.  Impoundment for Chasing Livestock or Game Animals 
9.  Impoundment for Health Concerns
10.  Conclusion

Topics & Links - other documents in Web Center:
Police Shooting Pets Topic Page
Damages for Companion Animals Topic Page
Return to Dog Impound Topic Page
Non-Web Center Resources:

I. Introduction

There seems no greater exercise of police power in relation to dogs than a government’s ability to summarily seize or destroy dogs.  In fact, many states provide that an animal control officer or other appointed agent not only has a right to destroy offending dogs (usually those at large or deemed dangerous), but also a duty to do so.  Moreover, owners have little legal recourse against such action.  Most of the original legislation in this area dates back at least a century, rooted in real fears of marauding vicious dogs or the spread of rabies.  In any event, nearly all exercises of municipal power to restrain, regulate, and impound loose or vicious dogs are upheld as valid.  (For more on police powers, see the Detailed Discussion of State and Local Dog Laws).

State and municipal laws provide for the seizure of dogs in three general categories:  the impoundment of loose or unlicensed dogs; the seizure of dangerous dogs; and the seizure of dogs that either appear rabid or as part of a rabies quarantine effort.  This paper will examine specific state laws with respect to dogs at large, dogs found to be chasing livestock, and dogs seized as part of a quarantine effort.  While it is recognized that the impetus behind broad seizure laws is often the threat of a dangerous dog, this paper will not delve into dangerous dog laws (a paper examining dangerous dog laws will soon be available at the Web Center).  In doing so, this paper will also analyze the case law relative to impoundment of dogs for various offenses by examining the constitutional challenges to impoundment and destruction.  It will also give several state laws examples relative to seizure and impoundment of dogs.

II. Exercise of General Police Power to Impound or Kill Dogs

As noted in the Web Center paper on municipal police powers, state and local governing units are granted broad authority to control dogs.  Indeed, “[t]the power of the state has been exercised to regulate and control dogs to a greater extent than it has for any other class of domestic animals. . .”  4 Am. Jur. 2d Animals § 24.  Tennessee law exemplifies this broad police power given to municipalities to seize and destroy dogs.

Counties, by resolution of their respective legislative bodies, may license and regulate dogs and cats, establish and operate shelters and other animal control facilities, and regulate, capture, impound and dispose of stray dogs, stray cats and other stray animals.

TN ST § 5-1-120.

Generally, this ability given to local governments to control dogs is broad.  State statutes often provide that the power to license, tax, and regulate loose dogs is vested in municipal governments.  See, AR 14-54-1102; OK ST T. 4 § 43.  In any event, few challenges to ordinances or statutes requiring dogs wear licenses or be properly restrained survive judicial scrutiny.  Instead, courts give broad deference to a government’s inherent police power in this arena.  This is especially true with regard to loose dogs or dogs at large.

III. Loose Dogs or Dogs Running At Large

Clearly, the most common reason a dog is impounded is because it is found running loose with no license tags.  As dogs are viewed as personal property in every state, a dog that bears no tag of owner identification may be considered by statute to be abandoned property.  4 Am. Jur. 2d Animals § 58.  This ability to then seize “abandoned” dogs extends to the summary disposition of such property, depending on the time frame given under statute.  As a consequence “. . . a state may by statute provide that impounded dogs and cats, which fall within the meaning of abandoned property, may be turned over to specified institutions for medical experimentation and research . . . since the police power of a state extends to preventing waste of resources . . .”  Id.  In fact, this ability of a municipality to sell or give pets to research facilities was upheld as a valid exercise of police power in Kovar v. City of Cleveland, 102 N.E.2d 472 (Ohio App. 1951).

In Kovar, Petitioner LaVeda Kovar and others sought to enjoin the City of Cleveland from disposing of dogs located in the city dog pound by giving or selling them to hospitals or laboratories for experimental and research purposes.  The Ohio Court of Appeals held that the City of Cleveland had the right in promoting the health, safety, and welfare of its citizens, which was granted through both the constitutional right of home rule and by powers conferred directly to municipal corporations by state statute.  This power extended to the instant ordinance that provided that no dog should be permitted to run at large unless muzzled and that any dog found at large and unmuzzled would be impounded.  Further, by carrying out this mandate under the ordinance, the city’s disposition of the animals that were legally impounded was simply the performance of a ministerial or administrative duty.  Id.

In many states, local authorities are given this near complete discretion to adopt strict dog seizure laws.  In Oklahoma, local municipalities are given broad authority to enact measures relating to the seizure and killing of dogs at large.

The board of county commissioners may also regulate and provide for taxing the owners and harborers of dogs, and authorize the humane killing or disposal of dogs, found at large, contrary to any ordinance regulating the same.

OK ST T. 4 § 43.  In fact, this ability to enact ordinances related to dogs may not be discretionary for a particular municipality.  New Mexico state law, for example,  mandates that each municipality and county enact ordinances for the seizure of dogs running at large.  NM ST § 77-1-12.

But what defines a loose dog, or dog-at-large?  A dog can be deemed “running-at-large” if it is found not in the immediate control of a capable person or in a suitable enclosure on its owner’s property.  Further, some states define loose dogs at those that are not wearing visible dog tags on a collar.  Most states distinguish between loose dogs with a visible collar and dog tags and those dogs that are unlicensed or uncollared.  New Hampshire describes the term “at large” in its Dog Control Law:

II. In this section, "at large" means off the premises of the owner or keeper and not under the control of any person by means of personal presence and attention as will reasonably control the conduct of such dog, unless accompanied by the owner or custodian.

III. Any authorized person may seize, impound or restrain any dog in violation of this section and deliver said dog to a person or shelter authorized to board dogs. Such dogs shall be handled as strays or abandoned dogs pursuant to applicable laws.

NH ST § 466:30-a.  Under this definition, a dog running free at a park out of sight of its owner is loose, as is a dog that has escaped from its pen while not wearing a collar.  The law does not distinguish between the reasons a dog might be loose in deciding its fate.  Other statutes focus on the license status of the dog in determining whether it is subject to seizure as a loose dog.  New York law, for instance, provides that a dog control officer may seize dogs for any of the following:

(a) any dog which is not identified and which is not on the owner's premises; and
(b) any dog which is not licensed, whether on or off the owner's premises.
(c) any licensed dog which is not in the control of its owner or custodian or not on the premises of the dog's owner or custodian, if there is probable cause to believe the dog is a dangerous dog.
(d) any dog which poses an immediate threat to the public safety.

Promptly upon seizure the dog control officer shall commence a proceeding as provided for in subdivision four of section one hundred twenty-one of this article.

NY AGRI & MKTS § 118.  Thus, according to subsection b above, any unlicensed dog is subject to seizure.  Similarly, Hawaii law does not distinguish between unlicensed dogs in the presence of their owners; all unlicensed dogs are subject to mandatory seizure.

. . .[E]very officer shall seize any unlicensed dog found running at large or found upon any public highway, street, alley, court, place, square, or grounds, or upon any unfenced lot, or not within a sufficient enclosure, whether in the immediate presence of the owner or otherwise, and confine it in a pound or any suitable enclosure for a period of forty-eight hours, during which time it shall be subject to redemption by its owner by payment of the license due. . .

HI ST § 143-8.  Many other states have adopted a mandatory seizure approach when it comes to unlicensed, loose dogs.

In Mississippi, dogs found running-at-large without a collar and license tag will be killed.  MS ST § 41-53-11.  In fact, the statute provides that, not only is such action lawful, but it is the duty of any sheriff, conservation officer or peace officer to do so.  Further, an owner cannot maintain an action for such killing.  The statute later provides that it is also the duty of the officer to keep the dog for a period of five days.   MS ST § 41-53-11.  How this provision squares with the duty provision to kill unlicensed dogs is unclear.  Other states provide a similar scheme.  Idaho also provides that, in localities where a measure has been adopted, it is the duty of the county sheriff to seize and impound all uncollared and unlicensed dogs.  ID ST § 25-2804.  However, unlike Mississippi, the officer is required to impound the dog for a period of five days and must make a reasonable effort to notify the owner.  ID ST § 25-2804.  In Arkansas, municipalities have the power to enact measures to prevent the running at large of dogs and to authorize their destruction.  Prior to destroying the dog, the municipality shall give five days notice, taking the form of a certified letter.  AR ST 14-54-1102.  This, of course, presumes that the dog is either licensed or identified in some manner such that notice can be made to the owner.  The statute does not itself make a distinction between licensed or unlicensed dogs.

Kentucky recognizes that a dog warden may not always be able to impound a loose dog.  As a result, he or she is given authority to kill an unlicensed loose dog.

(1) Peace officers, dog wardens, or animal control officers shall seize and impound any dog which does not bear a proper license tag or other legible identification which is found running at large, but if an officer, dog warden, or animal control officer, after diligent effort to do so, should fail to seize the dog, it shall then become his duty to destroy the dog by any reasonable and humane means.

KY ST § 258.215.  Thus, Kentucky mandates that officers destroy a loose and unrecoverable dog.  KY ST § 258.215(1).

The importance of whether dogs are wearing license tags or collars when found at large was illustrated by a case from Vermont.  This case apparently held that when dogs are wearing collars when found at large, a court cannot grant a directed verdict for the constable who killed them.  Vosburgh v. Kimball, 285 A.2d 766 (Vt. 1971).  In Vosburgh, the dog owner appealed a directed verdict granted for the defendant-farmer, who allegedly wrongfully impounded the dogs, and the town constable, who allegedly wrongfully killed the dogs.  While the Vermont Supreme Court held that the farmer acted reasonably when he secured the dogs overnight after finding them chasing his injured cows, there was question as to the constable's actions.  The statute in question authorized the constable to kill dogs not registered or wearing a prescribed collar.  This raised an issue as to whether or not one or both of plaintiff's dogs were properly collared.  The conflicting evidence adduced at trial precluded a directed verdict for constable.  Id.  Since many statutes provide different dispositions for unlicensed dogs, evidence of registration and collar may be crucial to an impounded dog’s fate, according to this case.

The legal status of a loose dog may differ by statute.  In Maryland, a dog running at large is a "nuisance" under law.  The statute provides that such dogs are deemed a nuisance and may be seized or killed if the dog warden is unable to catch the dog:

(b) Any dog found running at large without the proper license tag attached in accordance with the provisions of this subtitle is a nuisance and is subject to seizure, detention and destruction. The dog warden or his duly authorized deputies, whenever possible, shall seize and impound any dog found running at large without the proper license tag attached. When the dog warden or his duly authorized deputies are not able to catch a dog running at large without a license tag, they may shoot or otherwise kill the dog.

MD CODE, Art. 24, § 11-510(b).  The nuisance angle allows the appropriate authorities to act in an expeditious manner by statute.

A loose dog may also pose a financial risk to owners.  While most states impose some nominal fine to retrieve an impounded dog, Rhode Island provides that impounded dogs may be destroyed in five days if the owner fails to pay a hefty fine.

[Dogs] may be confiscated by a dog officer and destroyed in an expeditious and humane manner after the expiration of a five (5) day waiting period exclusive of Sundays and holidays which shall not include any day or part thereof that the public pound is not open for a specified period of time, not to be less than one half (1/2) the normal hours of business, for the purpose of reclaiming any such dog by its rightful owner. In addition, the owner or keeper shall pay a five hundred fifty dollar ($550) fine.

RI ST § 4-13.1-9.  Many owners may then face the reality of raising a substantial amount of money to retrieve a family pet.

Minnesota extends the ability to seize a loose dog to anyone, not just a duly appointed law enforcement or animal control officer.

Any person may seize, impound, or restrain any unlicensed dog which the person may find running at large. The fact that a dog is without a license attached to a collar shall be presumptive evidence that the dog is unlicensed. The sheriff and sheriff's deputies, any marshal or constable or other police officer shall seize, impound or restrain any dog for which no license has been issued and for which one is required. Any officer who shall seize, restrain, impound, or kill any dog found in any place without a license. . .

MN ST § 347.14.  It is unclear from the statute whether this provision will immunize a civilian from liability resulting from the seizure.


Ohio provides only for the seizure of licensed dogs under very circumscribed conditions when on their owners premises.  “A dog that wears a valid registration tag may be seized on the premises of its owner, keeper, or harborer and impounded only in the event of a natural disaster.”  OH ST § 955.12.  This unusual provision recognizes the enhanced legal status of a licensed dog.

Many states treat dogs at large as stray or abandoned dogs.  Dogs that are impounded and not claimed within a specified amount of time are generally regarded as abandoned, regardless of evidence of ownership, and may be disposed of according to state law.  ME ST T. 7 § 3912; DC CODE § 8-1805(f).  New Jersey provides several instances under which a person appointed by a local government must seize offending dogs, including those deemed stray.  These include:

(a) Any dog off the premises of the owner or of the person keeping or harboring said dog which said official or his agent or agents have reason to believe is a stray dog;
(b) Any dog off the premises of the owner or of the person keeping or harboring said dog without a current registration tag on his collar;
(c) Any female dog in season off the premises of the owner or of the person keeping or harboring said dog;
(d) Any dog or other animal which is suspected to be rabid;
(e) Any dog or other animal off the premises of the owner reported to, or observed by, a certified animal control officer to be ill, injured or creating a threat to public health, safety or welfare, or otherwise interfering with the enjoyment of property.

NJ Stat. 4:19-15.16.

Missouri adds a twist to the seizure of dogs at large.  All cities and town marshals are required to impound dogs at large without collars.  These dogs are kept for one week after which the dogs shall be put to death by humane methods.  Interestingly, the statute also provides that, “Any marshal who shall fail or refuse to take up and impound any such dog shall be guilty of a misdemeanor and on conviction thereof fined not less than five dollars nor more than twenty-five dollars.”  MO ST § 273.100.  Thus, not only does Missouri mandate the seizure of dogs at large, but law enforcement officers who fail to comply with this statute incur criminal prosecution.

In states with a hunting tradition, loose dogs are spared if engaged in hunting activities.  Kentucky law recognizes that a wandering dog at night might simply be a lost hunting dog, as opposed to a marauding canine.  Thus,

[a]ny peace officer, dog warden, or animal control officer may seize or destroy any dog found running at large between the hours of sunset and sunrise . . . shall be under a duty to make a fair and reasonable effort to determine whether any dog found at large between sunset and sunrise is a hound or other hunting dog which has become lost temporarily from a pack or wandered from immediate control of its owner. . .

KY ST § 258.265.  The officer must then refrain from killing the dog if he or she is “reasonably sure that the dog is a hunting dog” unless it is found in the act of attacking livestock or humans.  KY ST § 258.265.

Finally, a dog may be subject to impoundment for failure of its owner to pay a license tax, or head tax.  In West Virginia, municipalities may enact a head tax on dogs.  While it is discretionary to impound a dog for which a tax has not been paid, the consequences once the dog is impounded are severe.

It shall be the duty of the county assessor and his deputies of each county within the State, at the time they are making assessment of the personal property within such county, to assess and collect a head tax of one dollar on each male or spayed female dog and of two dollars on each unspayed female dog; Should an owner fail to pay the tax, the dog may be impounded.  If after 15 days the owner does not pay the tax, the sheriff may offer the dog for sale.  If he fails to sell the dog, the Should the sheriff fail to sell the dog so impounded within the time specified herein, he shall kill such dog and dispose of its body.

WV ST 7-7-6d.  Indiana also provides that dogs upon which a tax has not been paid are subject to seizure.  Indeed, the state provides a “round-up” day for these tax-evading dogs.

Sec. 14. On and after the fifteenth day of June of each year every dog on which the tax has not been paid as herein provided, is hereby declared to be a public nuisance and it shall be the duty of the sheriff of every county, the marshal of every town, the police officer of every city, the constable of every township, and the members of the state police force or game wardens to cause such dogs to be captured and placed into city, town or county dog pounds. Such dogs may be reclaimed by their owners upon exhibition of evidence that the tax on such has been paid and upon payment of a reasonable fee not to exceed twenty-five cents ($.25) per day. In the event that the dogs impounded as provided in this chapter shall not be reclaimed within twenty (20) days, they shall be sold or destroyed as the impounding officials may decide.

IN ST § 15-5-9-14.  Whether such an action occurs on that day in June is likely a matter of available local resources.  However, it illustrates the importance states place on the exercise of police power with regard to dogs.  Notably, however, a state statute mandating the destruction of loose dogs may preempt local decisions to impound stray animals.

This was the situation in the case of Vukic v. Brunelle, 609 A.2d 938 (R.I., 1992).  In that case, the court held that the duty to kill a loose dog given through state statute overrode a local ordinance's impoundment scheme.  In Vukic, owners of a Great Dane dog and her pups filed suit against the officer who killed the dogs.  The dogs escaped their kennel and traveled to a neighbors’ residence, who were apparently frightened by the dogs after the dogs would not move away from their rabbit cages.  The neighbors then called constable/special police officer Roy Brunelle to remove the dogs from their property.  The officer observed that the dogs were uncollared and unlicensed, contrary to local and state law.  The testimony was contradictory whether the dogs acted aggressively toward the officer.  Ultimately, however, the officer shot the dogs, two of which were immediately killed.

The Vukics filed suit in the Superior Court against the town of Lincoln and also against Brunelle in his individual capacity, which initially resulted in a jury award of $57,090.

On appeal, the defendants argued  that the trial justice erred in failing to grant defendants' pretrial motion to dismiss the action in light of state legislation that required a dog officer destroy any dog found at large and not licensed and collared according to law.  General Laws 1956 (1976 Reenactment) § 4-13-12.  The court concluded that the Lincoln ordinance was superseded by the provisions of § 4-13-12 and that Brunelle acted according to law in his destruction of the Great Danes.  In fact, the court found that "[t]his charge was meant to be a legal duty to be carried out without exception."  Id.  The court found the evidence was undisputed that the Great Danes had escaped the confines of their owners' property and that none of them was collared with a license.  Thus, Brunelle had "an unqualified duty" to destroy the Great Danes.  Indeed, "[a]ny obligation created by the Lincoln ordinance to have acted otherwise, such as by impounding the dogs instead of killing them, must fall away in the face of the paramount state statute."  Id.

The court rejected the plaintiff's argument that the provisions of § 4-13-12 requiring that dog officers destroy all unlicensed dogs found at large was "absurd, unjust, and ultimately archaic in light of the changes in Rhode Island since the enactment of the statute in 1896."  Id.  The plaintiffs contended that the statute was enacted when the state was primarily rural and the provisions in question were designed to control livestock damage by wild dogs.  While the court recognized that the state might be outdated, it declined to usurp the legislature's duty to amend or repeal the statute.  In most states where immediate destruction of loose dogs is not mandated by law, due process requires at least some form of notice of impoundment. 

IV. State Notice Requirements

Consistent with due process requirements, most state statutes mandate a notice scheme after a dog is impounded.  Notice statutes typically provide that the owner must be notified in writing, usually by certified mail.  These requirements generally give the dog owners between five and seven days to reclaim their dogs before the dogs are placed for adoption, sold to for scientific experimentation, or humanely destroyed.  The New Jersey statute provides a typical example of notice requirements:

If any animal so seized wears a collar or harness having inscribed thereon or attached thereto the name and address of any person or a registration tag, or the owner or the person keeping or harboring said animal is known, any person authorized by the governing body shall forthwith serve on the person whose address is given on the collar, or on the owner or the person keeping or harboring said animal, if known, a notice in writing stating that the animal has been seized and will be liable to be offered for adoption or destroyed if not claimed within seven days after the service of the notice.
NJ ST 4:19-15.16.  In New York, is given by certified mail:

6. Promptly upon seizure of any identified dog, the owner of record of such dog shall be notified personally or by certified mail, return receipt requested, of the facts of seizure and the procedure for redemption. If notification is personally given, such dog shall be held for a period of seven days after day of notice, during which period the dog may be redeemed by the owner. If such notification is made by mail, such dog shall be held for a period of nine days from the date of mailing, during which period the dog may be redeemed by the owner. In either case, the owner may redeem such dog upon payment of the impoundment fees prescribed by subdivision four of this section and by producing proof that the dog has been licensed.

NY AGRI & MKTS § 118.  Again, a state may vary requirements depending on whether a dog is licensed or unlicensed.  Notice may appear in the form of a publication where dogs are found without owner identification.  This, in turn, affects the time period under which a dog must be retained by a facility.

In Michigan, a dog pound is prohibited from selling or disposing of a dog within four days of its acquisition.  If the dog is wearing a license tag, the owner must be notified in writing and the animal cannot be disposed of within 7 days of mailing the notice.  MI ST §  287.388.

A few states provide alternate notice schemes, to address situations where the owner address is unavailable.  In Minnesota, several alternative methods of notice are provided.

The officer to whom the dog is delivered shall, without delay, notify the owner, personally or through the United States mail, if such owner be known to the officer or can be ascertained with reasonable effort, but if the owner be unknown or cannot be ascertained, then the officer shall post written notice in three public places in the officer's town, giving a description of the dog, stating where it is impounded and the conditions for its release. If, after five days, the owner does not claim the dog the officer shall dispose of the dog in a proper and humane manner.

MN ST § 347.14.  Kentucky also provides for notice by publication where no animal control facility exists.

Any animal shelter, public or private, which takes in stray dogs and does not have regular hours for public access, shall post semimonthly either in a local newspaper or the newspaper with the highest circulation in the county, the shelter location, hours of operation, the period that impounded dogs shall be held, and a contact number.

KY ST § 258.215(1).  In Ohio, owners may be derived from the municipality’s registration list.  Alternatively, notice by publication may occur.

The warden shall give immediate notice by certified mail to the owner, keeper, or harborer of the dog seized and impounded by him, if the owner, keeper, or harborer can be determined from the current year's registration list maintained by the warden and the county auditor of the county where the dog is registered, that the dog has been impounded and that, unless the dog is redeemed within fourteen days of the date of the notice, it may thereafter be sold or destroyed according to law. If the owner, keeper, or harborer cannot be determined from the current year's registration list maintained by the warden and the county auditor of the county where the dog is registered, the officer shall post a notice in the pound or animal shelter both describing the dog and place where seized and advising the unknown owner that, unless the dog is redeemed within three days, it may thereafter be sold or destroyed according to law.

OH ST § 955.12.  Publication allows owners who cannot be notified by mail a chance to redeem their pets.

As dogs are considered property in all states, the notice period gives time for title to this now abandoned property to pass the facility holding the dog so that it may dispose of the dog.  New Hampshire outlines this concept in its notice provision.

II. The mayor or aldermen or selectmen may issue their warrant to one or more of the police officers of such city or town who shall, after 24 hours from the publication of the notice required under paragraph I, impound all dogs found running at large contrary to such order. The dog owner shall be notified, if the owner's identity is known. Any dog impounded in accordance with this section who has been conclusively found to be rabid shall be destroyed in the most humane manner possible. After 7 consecutive days of impoundment, title of a dog shall pass to the facility holding the dog, unless the owner has claimed such dog. The owner of the dog shall be responsible for all costs associated with the impoundment of the dog under this section.

NH Stat. 466:29.  Such a notice scheme reflects the property status of dogs.  It also allows facilities to legally dispose of unclaimed animals.

Notice statutes may be vague as to the method of providing notice to the owner.  Alabama law provides that “[w]hen dogs and cats are impounded and if the owner thereof is known, such owner shall be given direct notice of the impoundment of said animal or animals belonging to him. . .”  AL ST § 3-7A-7.  The statute does not define what constitutes “direct notice.”  Similarly, ambiguous notice requirements may stem from the requirement of “reasonable notice” to the owners.  In the District of Columbia, the Mayor or his or her agent is required to a make a “prompt and reasonable attempt to locate and notify the owner” that his or her animal has been impounded.  DC CODE § 8-1805(b).  While the statute fails to specify what constitutes “prompt and reasonable,” a subsequent section provides that an impounded dog not redeemed by its owner within seven days is deemed abandoned.  DC CODE § 8-1805(f).  If notice is indeed given under Section b, thought the exact form is not specified, the owner has seven days from the date of the notice.  Finally, any animal abandoned without identification tags is deemed abandoned if not claimed in 5 days of its impoundment.  DC CODE § 8-1805(f).  Idaho also provides that the sheriff who has impounded a dog at large must make a “reasonable” effort to notify the owner without specifying what constitutes a reasonable effort.  ID ST § 25-2804.  If such an effort has been made, an unlicensed dog may be destroyed.  ID ST § 25-2804.   

Notice provisions may also apply outside of government contracted animal control agencies.  In Virginia, notice provisions for individuals who found companion animals and provide care to them are outlined by statute.

A. Any individual who finds a companion animal and (i) provides care or safekeeping, or (ii) retains a companion animal in such a manner as to control its activities shall, within 48 hours:

1. Make a reasonable attempt to notify the owner of the companion animal, if the owner can be ascertained from any tag, license, collar, tattoo, or other form of identification or markings, or if the owner of the animal is otherwise known to the individual; and

2. Notify the pound that serves the locality where the companion animal was found and provide to the pound contact information including at least a name and a contact telephone number, a description of the animal including information from any tag, license, collar, tattoo, or other identification or markings, and the location where the companion animal was found.

VA ST § 3.1-796.96:7.  This is ostensibly an attempt to immunize private agencies like veterinary offices from civil suits arising from disposal of abandoned animals.  Compliance with statutory notice requirements, whether by a public or private agencies, will usually suffice due process requirements for notice.  States generally proscribe minimum lengths of impoundment in an effort to ameliorate this harsh result.

V. Length of Impoundment

States generally provide a period after which a dog is impounded when the rightful owner can reclaim the dog.  This period of time also gives local authorities time to notify the dog owner.  While this period varies from state to state, most provide for a five to seven day period of impoundment.  After this time has passed, most states are either authorized to place the animal for adoption, sell the animal, donate the animal for scientific research, or euthanize the animal.

An examination of two statutes illustrates the differences in both time requirements and disposition of unclaimed pets.  Kentucky law provides that a seized dog shall be impounded for a period of five (5) or seven (7) days, to be determined by the local animal shelter prior to destruction.  KY ST § 258.215(1).  In West Virginia, a dog is given five days to redeem his or her dog from the time the notice was posted or given.  WV ST § 19-20-8.  The duration in West Virginia is dependent upon the notice given; in Kentucky notice is presumably irrelevant to the length of impoundment.

The time period for retention of impounded dogs may differ depending on whether the dog is identified by a dog tag.  In Tennessee, for example, the owner of an impounded dog that is wearing a tag will be notified by a postcard to claim the dog within five days or else the dog will be destroyed.  TN ST § 68-8-109.  In contrast, if a dog is not wearing a tag, the impounded dog will be destroyed within two days if not claimed.  TN ST § 68-8-109.

Oregon also distinguishes between those dogs that are licensed and those that do not have tags or other identifiers.

Unless claimed by its keeper, a dog shall be impounded for at least three days if the dog is without a license or identification tag and for at least five days if it has a license or identification tag. A reasonable effort shall be made to notify the keeper of a dog before the dog is removed from impoundment.

OR ST § 609.090(2).

New York does not distinguish between licensed and unlicensed dogs in terms of how long an impounded dog is held.  In either case, a dog shall be held for five days from the day it was seized.  NY AGRI & MKTS § 118.  After that period, an owner forfeits title and the dog may be made available for adoption or euthanized.  NY AGRI & MKTS § 118.  The statute does allow municipalities to shorten this time period.

8. The redemption periods set forth above in this section notwithstanding, any municipality may establish the duration of such periods by local law or ordinance, provided that no such period shall be less than three days, except that where notice to the owner is given by mail, no such period shall be less than seven days.

NY AGRI & MKTS § 118.

Maryland appears to have one of the shorter periods of retention prior to destruction.  The length of time in Maryland to impound dogs is reduced to 72 hours.  However, there does not appear to be any notice requirement.  Amazingly, despite the lack of notice, a dog may be legally killed by the county within 120 hours.

(d) Any dog seized and impounded shall be held for its owner for a period of 72 hours. During this period any dog seized shall be released to the owner, or his duly authorized representative, upon satisfactory proof of ownership, tender of a fee in whatever amount the County Commissioners determine for the costs of seizure and impounding, and upon presentation of the license for the dog.

(e) Any owner who does not redeem his dog within 72 hours forfeits all rights of ownership and the dog shall be the property of Calvert County. The dog shall remain impounded for an additional 48 hours, during which time any person desiring may obtain ownership of the dog by tendering the fee for the costs of seizure and impounding and by purchasing a license.

(f) Any dog seized and not redeemed within 120 hours from time of its seizure may be killed by the dog warden or one of his duly authorized deputies. If it is killed, it shall be killed in the most humane manner possible.

MD CODE, Art. 24, § 11-510.  In contrast, South Carolina, gives an owner up to two weeks to reclaim his or her dog if he or she has notified animal control authorities that he or she will pick up the dog.  Thereafter, the dog may be destroyed.  SC ST § 47-3-540.

Animals that are abandoned at private facilities may be treated differently than stray animals.  In Utah, for example, abandoned animals at veterinary offices must be kept for ten days.

(1) Any animal which suffers abandonment for a period of ten days may be sold or placed in the custody of the nearest humane society or county dog pound if the animal is not picked up within seven days after mailing a notification, by certified mail, to the last known address of the person placing the animal in the veterinarian's custody. If no humane society or dog pound is located in the county, the animal may be disposed of in a humane manner.

UT ST § 58-28-9.  Interestingly, the period of retention for unidentified or unclaimed taken to an animal shelter by an animal control officer is shorter than the above time period for abandoned animals:

(1) Each peace officer shall:
***
(2) (a) Each municipal or county animal control officer shall hold any unidentified or unclaimed stray dog or stray cat in safe and humane custody for a minimum of three working days after the time of impound prior to making any final disposition of the animal, including:
(i) placement in an adoptive home or other transfer of the animal, which shall be in compliance with Title 10, Chapter 17, Municipal Animal Shelter Pet Sterilization Act, or Title 17, Chapter 42, County Animal Shelter Pet Sterilization Act; or
(ii) euthanasia.
(b) An unidentified or unclaimed stray dog or stray cat may be euthanized prior to the completion of the three working day minimum holding period to prevent unnecessary suffering due to serious injury or disease, if the euthanasia is in compliance with written established agency or department policies and procedures, and with any local ordinances allowing the destruction.

UT ST § 77-24-1.5.  Regardless of the length of impoundment, due process generally demands more than a gratuitous or mechanical application of a statute.

VI. Due Process and Impoundment

Notice is one but element mandated by the due process clause of the Constitution.  Denial of due process for animal impoundment and destruction often centers on a lack of notice or opportunity to be heard.  Unfortunately, the trend in this area of law is to deny such civil claims against city employees, usually law or animal enforcement officers, raised under 42 U.S.C.A. § 1983.  Essentially, plaintiffs often allege that the destruction of their dogs by law enforcement officials acting under color of law (in other words, carrying out their perceived duties in accordance with a state law or local ordinance), caused a deprivation of any rights, privileges, or immunities secured by the Constitution and laws.  As a result, a plaintiff seeks damages for injury sustained by the act.  (For a more detailed discussion of Section 1983 actions, see Police Shooting Dogs Topic Area in the Web Center).

States may immunize dog control officers by statute.  New York provides a typical statutory exoneration of liability for seizure and euthanization of a dog.

11. No liability in damages or otherwise shall be incurred on account of the seizure, euthanization or adoption of any dog pursuant to the provisions of this article.

NY AGRI & MKTS § 118.  In most instances, however, the authority to summarily seize or even kill loose dogs stems from the general grant of police power to a local government.  The extent to which due process applies appears to depend on judicial interpretation.

In one of the earliest cases to consider a due process claim for the impounding of a dog, Jenkins v. City of Waxahachie, 392 S.W.2d 482 (Tex.Civ.App. 1965), the court found that municipalities have broad authority to regulate dogs under its police power.  In Jenkins, the plaintiffs' dog was picked up by an employee of the City of Waxahachie and impounded for one day, and released to plaintiff only after payment of a fee of $2.00.  Plaintiff then brought a suit to enjoin enforcement of the 'Dog' Ordinance of the City of Waxahachie, contending that ordinance is unconstitutional under both the United States and Texas Constitutions.  Specifically, plaintiff argued that a dog is property, and because the ordinance is silent as to notice and judicial determination of violation, it is violative of the United States Constitution (Amendments V and XIV) and the Texas Constitution (Art. 1, Secs. 17, 19, and 29, Vernon's Ann.St.) (which provide that no person shall be deprived of life, liberty or property without due process of law and just compensation).  Plaintiff essentially argued an uncompensated taking by the government.  The ordinance provided that dogs found running at large within the city may be picked up, impounded, destroyed, or otherwise disposed of in accordance with the terms of the ordinance.  It then allowed summary sale or destruction of any dog impounded that is not redeemed within 72 hours.  Id.

The court first observed that the City's Home Rule Charter authorizes enactment of "all reasonable ordinances that are not repugnant to the Constitution and Laws of the United States or of this State."  Id.  In its analysis, the court simply relied on the reasoning from a case decided in the previous century:

Consistent with due process, a state, or municipal corporation under its delegated power in such respect, may make provision for the summary destruction of dogs which are kept or running at large in violation of law, and such regulations, no matter how stringent in character or how summary the proceedings, are entirely within legislative power and are free from constitutional objection, notwithstanding the property of the owner is destroyed without notice or hearing in the execution of the law.  Moreover, the overwhelming majority of courts view statutes and ordinances providing for summary disposal or destruction of dogs as valid exercises of the police power; and though dogs are property, such ordinances or statutes are not a denial of due process, even though they do not provide for notice and hearing.

Jenkins v. City of Waxahachie, 392 S.W.2d 482 (Tex.Civ.App. 1965), (internal citations omitted).  After reiterating the statements of broad police power a municipality enjoys, the court simply concluded that “the complained of provisions of the Ordinance valid exercises of the police power, and Constitutional.”  Id.

While the court’s analysis was lacking with respect to why a municipality is empowered with such a broad police power in relation to dogs, the holding did underscore the judicial deference municipalities are afforded.  This reasoning was later followed in other impoundment cases.  

Again, in City of Water Valley v. Trusty, 343 So.2d 471 (Miss. 1977), a court again invoked a case from the century prior in finding that no violation of due process occurred for the impoundment of a dog in violation of a leash ordinance.

This Court held in Julienne v. City of Jackson, 69 Miss. 34, 10 So. 43 (1891):

'It is held with great unanimity by the courts that regulations of the most stringent character, and the most summary proceedings for the destruction of these animals kept contrary to such regulations, are entirely within legislative power, and free from constitutional objection, though the property of the owner is destroyed without notice or hearing, in the execution of the law.' 69 Miss. at 37-38, 10 So. at 43.

City of Water Valley v. Trusty, 343 So.2d 471 (Miss. 1977).  Relying on this same conclusory reasoning from Jenkins v. City of Waxahachie, 392 S.W.2d 482 (Tex.C.A.1965), the court followed suit with the majority of jurisdictions holding that such actions do not even implicate due process.  See also, Thiele v. City and County of Denver, 135 Colo. 442, 312 P.2d 786 (1957) and cases cited at Annot. 56 A.L.R.2d 1026 (1957).  Further, the court found that since Mississippi Code Annotated s 21-19-9 (1972) authorized municipalities to regulate the running at large of animals of all kinds, an ordinance enacted pursuant to that authority, was presumptively constitutional.

Fortunately, this trend of unsupported judicial reasoning appears to be giving way to recognition of owners’ property interests.  Courts now agree that deprivation of property, especially involving companion animals, mandates due process unless exigent circumstances exempt the requirement.  One court has held that an ordinance that provides only a gratuitous notice was insufficient.  Phillips v. San Luis Obispo County, et al, 228 Cal.Rptr. 101 (Cal.App. 2 Dist., 1986).  In Phillips the court noted that principles of due process apply to dogs, as de minimus property.  Id.  Thus, prior to destruction of a dog, an owner is entitled to an opportunity to be heard, unless there is a need for an immediate government action.  Id.  While the facts in Phillips involved dangerous dog impounded after biting a child, the court found that a “courtesy hearing” offended notions of due process.  “A hearing granted as a matter of discretion is no substitute for due process.”  Id.  The court found that the ordinances were unconstitutional for failing to provide notice and a hearing before or after seizure of an uncontrolled biting or vicious dog.

The court in Phillips did observe that a summary seizure of dogs must be allowed when the dog poses a threat to public safety (e.g., a vicious or rabid dog).  However, the court went on to note  “the constitutionality of the ordinance or statute justifying seizure rests upon its provision for a prompt postseizure hearing.”  Id.

Cases arguing the improper impounding of companion animals generally center around procedural due process; that is, were the owners provided with adequate notice that gave them a meaningful opportunity to be heard.  See, Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).  While, due process is said to be a “flexible” concept based on the nature of the liberty or property interest at stake, an essential element of due process is the right to notice and a meaningful opportunity to be heard.  Mathews, 424 U.S. 319, at 332.  Indeed, the United States Supreme Court "consistently has held that some form of hearing is required before an individual is finally deprived of a property interest." Mathews, 424 U.S. at 333.

Three factors are generally considered when due process is implicated:  (1) the private interest involved, (2) the risk that the current procedures will erroneously deprive a party of that interest, and (3) the governmental interest involved. Mathews, 424 U.S. at 335.  Unfortunately, in pet cases, the weighing of such interests is subjective because the law does not place the status of a pet above that of a couch, toaster, or television.  One animal impoundment case has recognized that a higher property interest may be involved in pet cases when applying the Matthews factors:

Here, first, the private interest involved is the owners' interest in keeping their pets. This is greater than a mere economic interest, for pets are not fungible. So the private interest at stake is great. Taking the third consideration next, the governmental interest is the burden of keeping these exotic animals in impound while awaiting a hearing.

Rhoades v. City of Battle Ground, 114 Wash.App. 1062 (Not Reported in P.2d) (2002).  (In Rhoades, the plaintiff specifically contended that an ordinance requiring the impoundment and destruction of their exotic pets without proper notice was unconstitutional.  However, the court found the ordinance at issue provided a notice scheme of up to 30 days as well as an opportunity to appeal the ruling to municipal court.  Thus, due process was met.)

Outside of the seizure of vicious dogs, it is evident that most dogs summarily seized in local jurisdictions are generally at large or unlicensed.  Under these statutes, notice varies from state to state, but generally state statutes require at least five days notice.  Since the pets’ destruction can be avoided by the owners simply reclaiming their dogs, due process is likely sufficed in most circumstances.  Further, courts give great discretion to the action taken by animal control officers where the statutory scheme empowers these officers to exercise judgment in dealing with loose dogs.  This situation was exemplified in Ivey v. Hamlin, 2002 WL 1254444 (Not Reported in S.W.3d), (Tenn.Ct.App.,2002).  In Ivey, the plaintiff alleged that a peace officer shot his dog after repeated complaints that the dog was loose, uncollared, and was “terrorizing” neighbors.  On the third occasion that the officer came to the plaintiff’s house, the defendant animal control officer told plaintiff and his family to go inside the house, as he was going to shoot the dog.  He then killed the dog.  The court observed that the statutory scheme provided by Tenn.Code Ann. §§ 68-8-104 et seq. allowed official to seize any dog running at large to be placed in a pound where a dog pound is available.  The county in question (Cheatham County) did not have a dog pound or similar facility, “and thus the defendant Hamlin was confronted with a circumstance requiring that, as a peace officer, he exercise an appropriate degree of judgment and discretion.”

The statutory scheme required him to seize the collarless dog and confine it; he did not do so for the reason that the County had no impound facilities and he insists that this asserted "Catch-22" situation justified its summary execution


Id.  Further, the court noted that the majority of jurisdictions which have addressed the due process claim have concluded that killing a pet does not give rise to a 42 U.S.C. § 1983 claim. The court relied on the fact that virtually every court that has addressed this issue has concluded that shooting a pet animal does not give rise to a 42 U.S.C. § 1983 claim premised on a violation of the Due Process Clause of the Fourteenth Amendment.  (See, Police Shooting Pets Web Center Topic Area; See also, Brown v. Muhlenberg Township, 269 F.3d at 213-14; Bell v. City of Louisville, No. 3:00CV-311 S, 2000 U.S. Dist. LEXIS 21674, at *23-28 (W.D.Ky. Nov. 6, 2000); Newsome v. Erwin, 137 F.Supp.2d 934, 943 n. 9 (S.D.Ohio 2000); Attama v. Police Officer Troy Crawley, N. 99-434, 1999 U.S. Dist. LEXIS 7758 (E.D.Penn. May 20, 1999). Instead, the court observed the vast majority of cases that even entertain such claims evaluate them under an unreasonable governmental seizure of personal property in violation of the U.S. Const. amend. IV. Thus, the Ivey court followed the majority line in declining to consider plaintiff’s § 1983 action for due process, and did not consider an unreasonable seizure claim because plaintiff failed to raise it in his pleadings.

Due process during dog impoundment concerns not just the actual taking of the dog, but also the manner in which the impoundment was conducted.  Indeed, owners’ rights to be free from unreasonable seizures may also be implicated.

VII. Fourth Amendment Concerns in Seizing Dogs

The issue has arisen as whether Fourth Amendment claims against unreasonable search and seizures extend to the seizure of dogs for violation of state or municipal code.  Essentially, when can an animal control officer or police officer empowered with animal control functions enter an individual's home without a warrant to seize a dog for violation of a leash law or loose dog ordinance?  The U.S. and state constitutions generally forbid the warrantless entry into homes unless a person consents to the entry or exigent circumstances exist.  This would of course hold true for violations of local dog laws.  Just as an officer could not enter a person's home without a warrant for violation of a housing code ordinance, he or she is also prohibited from entering for a dog violation.  However, many dog code violations often involve the pursuit of an offending dog (e.g., one that is running at large or even deemed "dangerous").  This fact tends to muddy the waters of an otherwise firm constitutional guarantee.

Consequently, a couple of states have addressed this claim by statute.  In New Jersey, an officer may enter all but the owner’s premises if he or she is immediately pursuing a dog.

Any officer or agent authorized or empowered to perform any duty under this act is hereby authorized to go upon any premises to seize for impounding any dog or dogs which he may lawfully seize and impound when such officer is in immediate pursuit of such dog or dogs, except upon the premises of the owner of the dog if said owner is present and forbids the same.

NJ 4:19-15.17.  Thus, the owner is protected from this unreasonable seizure of his or her property, even where potential exigent circumstances exist.  Further, a California statute specifically provides that no authority may enter private property for the purpose of impounding a dog for violation of a leash law if the dog has not strayed from the property.  CA GOVT § 53074.  If the dog has strayed and no one is home at the resident, the officer may enter the property to obtain the dog for impound.  In that case, the officer must leave notice of the impound:

Such notice shall state the following: that the dog has been impounded, where the dog is being held, the name, address, and telephone number of the agency or person to be contacted regarding release of the dog, and an indication of the ultimate disposition of the dog if no action to regain it is taken within a specified period of time by its owner or by the person who has a right to control the dog.

CA GOVT § 53074.

But what about the well-known exceptions to the warrant requirement under the Fourth Amendment?  The case of Conway v. Pasadena Humane Society, 52 Cal.Rptr.2d 777 (Cal.App. 2 Dist.,1996), addressed this issue of whether pursuit of a loose dog constitutes “exigent circumstances” for purposes of the Fourth Amendment.  Specifically, the court considered whether animal control officers can lawfully enter a home, without a warrant or consent by the owners, to seize and impound the homeowner's dog for violation of a leash law.  The court held that the Fourth Amendment precludes such conduct.

In Conway, the City of Pasadena had an ordinance in place that allowed the city poundmaster to Seize and impound dogs found running at large. (Pasadena Mun.Code, §§ 6.08.020, 6.08.080.).  A Sergeant Jurman of the Humane Society observed a dog running at large, and shortly thereafter, saw the same dog who he recognized as “Toby” from previous encounters, run across another street.  After calling for assistance, the officer saw Toby "run home" to the Conway residence.  After knocking on the front door of the house and receiving no response, the sergeant noticed that one of the rear doors to the house was open approximately two feet and assumed Toby had gone inside the residence.  The humane society sergeant requested the assistance of the police because he feared that a burglar might be in the Conway home.  The court noted that the police officer, based on his conversation with Jurman, believed that the dog was a stray and did not belong on the property, so he allowed the Humane Society officer to enter the home and impound the dog.  The Conways were charged with a violation of the City's "leash law" (Pasadena Mun.Code, § 6.12.010), which is a misdemeanor.  Id.

The gravamen of the action was a federal civil rights claim (42 U.S.C. § 1983) alleging that defendants violated the Conways' rights under the Fourth Amendment to be free from unreasonable searches and seizures.  In examining whether the circumstances were exigent for purposes of the Fourth Amendment, the court noted that the United States Supreme Court has previously frowned upon a finding exigent circumstances, especially when warrantless arrests in the home are at issue when the underlying offense for which there is probable cause to arrest is relatively minor.  Id.

Even if exigent circumstances permitted the police to enter the Conway home and search for a burglar such circumstances did not exist after the police completed their initial search. No one was inside the house, and the dog was safely secured in one of the bedrooms. Defendants do not contend that Toby posed a danger to anyone or anything at that time.  Thus, without exigent circumstances or consent the Fourth Amendment precluded the animal control officers from making a warrantless entry into the Conway residence to enforce the leash law.  Id.

Interestingly, dogs impounded because they are loose often receive less consideration by the courts in terms of due process than do dogs that are impounded because they are deemed dangerous.  It is ironic that the owner of the least offending dog is given little notice or opportunity to be heard before execution.  However, it can be argued that the administrative impossibility of given notice to unlicensed dogs surely justifies the need for rapid action, and limited resources to animal control facilities cannot justify longer stays for stray dogs.  While loose dogs may be subject to reasonable impoundment periods under which an owner can reclaim them, dogs impounded for chasing or worrying livestock instead often face a harsher disposition.
VIII. Impoundment of Dogs Chasing Livestock or Game

Nearly all states provide that dogs may be destroyed pursuant to state statute by authorized individuals.  Generally, this ability is extended only to humane or law enforcement officers under proscribed circumstances.  Some statutes do allow different categories of people the authority to destroy offending dogs (e.g., landowners, public officials, game officers, ranchers, etc.).  State law must be examined very carefully in each state to determine who has the authority and under what circumstances.  One of the other primary reasons dogs are summarily destroyed is that they are found injuring or chasing livestock.  This stems from the agricultural legacy in many states and the real danger livestock faced from loose dogs.  While still relevant, many antiquated statutes mandate the destruction of dogs with only a summary hearing provided prior to destruction.  Further, these statutes have been criticized as elevating the status of livestock above humans, as many laws provide for summary destruction of dogs that chase livestock but not for dogs that have bitten humans.  The New Jersey statute illustrates a typical law.

. . . A person may humanely destroy a dog in self defense, or which is found chasing, worrying, wounding or destroying any sheep, lamb, poultry or domestic animal.

NJ § 4:19-9.  In Wyoming, the ones for destruction is placed on the person or entity owning the dog.

Every person, firm, copartnership, corporation or company owning any dog, which to his knowledge has killed sheep or other livestock, shall exterminate and destroy the dog.

WY ST § 11-31-106.  The statute fails to explain the penalty for failure to comply with the statute.

In states where the hunting industry also plays a major role in the state economy dogs may face execution or impound for chasing game.  In South Dakota, the focus is on dogs interfering with the big game hunting industry.

A law enforcement officer may destroy any dog found pursuing, injuring or killing any big game animal on public lands.

SD ST § 40-34-12.  Further, this ability to destroy an offending dog extends to private landowners.

In fact, “[a] landowner or tenant may destroy any dog that pursues, injures or kills any big game animal on lands owned or controlled by that owner or tenant without incurring any liability.”  SD ST §40-34-12.  In contrast, in Washington, the fish and game director must first find that a necessity exists to impound and kill dogs found to be pursuing deer or elk.

If the director determines that a severe problem exists in an area of the state because deer and elk are being pursued, harassed, attacked or killed by dogs, the director may declare by emergency rule that an emergency exists and specify the area where it is lawful for fish and wildlife officers to take into custody or destroy the dogs if necessary. Fish and wildlife officers who take into custody or destroy a dog pursuant to this section are immune from civil or criminal liability arising from their actions.

WA ST 77.12.315.  Similarly, West Virginia also demands that conservation officials comply with further requirements prior to destroying dogs found to be chasing big game.

No person shall permit his dog to hunt or chase deer. A conservation officer shall take into possession any dog known to have hunted or chased deer and the director shall advertise that such dog is in his possession, giving a description of the dog and stating the circumstances under which it was taken. Such notice shall be published as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this Code, and the publication area for such publication shall be the county. He shall hold the dog for a period of ten days after the date of the publication. If, within ten days, the owner does not claim the dog, the director shall destroy it. . . A conservation officer, or any officer or employee of the director authorized to enforce the provisions of this section, after a bona fide but unsuccessful effort to capture dogs detected chasing or pursuing deer, may kill such dogs.

WV ST § 20-2-16.

One case has suggested that, at least under Ohio law, the pursuit of livestock must still be "hot."  Perkins v. Hattery, 155 N.E.2d 73 (Ohio App. 1958).  In an action by owner of licensed dog to enjoin a county dog warden from killing, destroying, or otherwise disposing of dogs, the Ohio Court of Appeals held that a dog warden, either in his official capacity or as an individual, was not authorized to seize and kill a dog that was not then running at large or actually in act of chasing, worrying, injuring, or killing sheep.  In this case, the court found a time of nine hours after dog was alleged to have killed sheep while running at large was too attenuated under the statute.

In examining the relevant statute, the court observed that the words "chases, worries, injuries, or kills" are all in the present tense, indicating a legislative intent that, for the killing of the dog to be permitted, the dog must be killed while in the act of chasing, worrying, injuring, or killing.

A dog that chases, worries, injures, or kills a person, sheep, lamb, goat, kid, domestic fowl, or domestic animal except a cat or another dog can be killed at any time or place. If, in attempting to kill such dog running at large, a person wounds it, he is not liable to prosecution under the penal laws which punish cruelty to animals.

OH ST § 955.28.

While the court observed that there was no evidence of “hot pursuit” in this case, it also declined to decide whether a seizure after a hot pursuit would alter its reasoning under the statute. 


Other states, especially those with an agricultural economy, go further in allowing the immediate impounding of dogs seen chasing livestock.  Indeed, in Oregon, a state statute mandates the immediate impounding and subsequent killing of impounded dogs found to have chased livestock.  However, this same “death penalty” provision does not apply to dogs who have chased people.  In his article, Oregon Dog Control Laws and Due Process:  A Case Study, 4 Animal Law 95 (1998), Christopher Eck examines the incongruity in Oregon dog control law with respect to livestock.  Oregon law provides that a dog impounded for chasing a person may be released while a dog impounded for chasing livestock must be killed.  Id.  Further, Eck notes the ultimate discrepancy in the law:

If a dog chases a person, Oregon law permits an animal control officer to impound the dog, bring the dog’s owner to court, or both.  If the dog is impounded, the owner can redeem the dog by simply paying certain impound fees.  Even if the dog has injured or killed a person, the dog need not be killed . . . In contrast, if a dog chases, injures or kills livestock, Oregon law requires that the dog be impounded and killed.

[footnotes removed].  Id.  Attempts to ameliorate this harsh results and apparent conflict in the law have failed, Eck notes.  In fact, he also states that the Oregon livestock industry was so successful in opposing a bill that it never even received a hearing.  Id.

An examination of the relevant Oregon statutes illustrates this incongruity.

(1) In a county with a dog control program, upon finding a dog engaged in killing, wounding, injuring or chasing livestock or upon receipt from a complainant of evidence that a dog has been so engaged, the dog control officer or other law enforcement officer shall impound the dog.

OR ST § 609.155.  Once a hearing has been conducted to determine whether the dog is guilty of chasing or wounding livestock under ORS § 609.158, the following action occurs depending on whether it is the dog’s “first offense” or a subsequent violation.

One case that applied this statute illustrated this inflexible result.  In Roach v. Jackson County, 949 P.2d 1227, review denied 326 Or. 389, 952 P.2d 62 (1997), the court held that under ORS 609.155(3), once it was determined that dog chased horse in horse owner's pasture, it was mandatory that dog be killed in humane manner.  Thus, the county board did not have discretion not to destroy dog.

The relevant statute, ORS § 609.155(3) provides, in part:

[T]he county governing body shall determine whether the dog has been engaged in killing, wounding, injuring or chasing livestock. If the county governing body determines that the dog has been so engaged, the dog shall be killed in a humane manner.

ORS § 609.155(3).  In Roach, the plaintiff asserted that the statute required evidence of chasing with an intent to kill the horse in question.  In examining the statute, the court disagreed with plaintiff's argument that there must be proof that the horse was harmed.  The court noted that the operative words in ORS § 609.155(3)(a) have discrete meanings.

A dog need not kill or wound livestock for the statute to apply. In context, the word "injuring" connotes a situation where there is no physical contact between the dog and the livestock, but the livestock is injured as a result of the dog's actions.  Similarly, the statute is implicated when the dog merely chases livestock without injury or wounding occurring. It is apparent that the legislature recognized the potential of harm to livestock by a dog merely chasing livestock and sought to prevent that potential harm.
[footnotes omitted].  Roach, supra.  The court also disagreed with plaintiff’s interpretation that the authority to destroy his dog under ORS § 609.155(3)(a) is discretionary and that the Board did not exercise its discretion by considering the option of releasing the dog to him.  In fact, the court stated that the language of ORS § 609.155(3)(a) is mandatory; “it provides that the county governing body "shall" determine whether the dog has been engaged in the prohibited acts and if it determines that the dog has been so engaged, "the dog shall be killed in a humane manner." ORS § 609.155(3)(a).

The Oregon statute does allow the owner to request a hearing prior to the county making a determination:

(1) Prior to making a determination whether a dog has killed, wounded, injured or chased livestock, a county shall provide an opportunity for the dog owner to receive a hearing. The county shall send notice of the opportunity to request a hearing in a manner that is reasonably calculated, under all the circumstances, to apprise the dog owner of the specific behavior and incident alleged and the possible penalties, and to provide the dog owner with a fair opportunity for making the hearing request.

(2) A dog owner must cause a hearing request to be delivered to the county not later than the 14th day following the sending of notice under subsection (1) of this section. If a dog owner does not make a timely request for a hearing, the dog owner is conclusively presumed to have admitted the matter alleged and the county may immediately take action under ORS 609.162 and 609.163. The county shall send notice of its determination in the manner provided under ORS 609.158 (4).

OR ST§  609.156.  However, it appears that the hearing simply determines the fact of whether the dog is guilty; the court's decision in Roach confirms that the dog’s fate is predetermined by statute.

It is interesting that the status “human’s best friend” becomes imperiled when livestock or commercially viable state game interests suffers.  Indeed, in Texas, offending dogs share the same status as coyotes that destroy livestock.

(a) A dog or coyote that is attacking, is about to attack, or has recently attacked livestock, domestic animals, or fowls may be killed by:
(1) any person witnessing the attack; or
(2) the attacked animal's owner or a person acting on behalf of the owner if the owner or person has knowledge of the attack.
(b) A person who kills a dog or coyote as provided by this section is not liable for damages to the owner, keeper, or person in control of the dog or coyote.

Texas Health and Safety Code § 822.013.  Clearly, Oregon and other states continue to value commercial animals above companion animals.  Protecting economic interests are but one valid exercise of police power authority in relation to dogs.  In fact, many of the current dog laws reflect a more historic interest; protection of public health.

IX. Destruction of Dogs for Health Reasons

Much of the broad police power given to municipalities to seize loose dogs stems from a historic fear of rabies.  Part of the reason states give broad latitude to seize unlicensed dogs is because it is difficult to ascertain whether dogs have been inoculated against rabies.

Any police officer or State dog warden may humanely kill any dog running at large in a rabies quarantined area without any liability for damages for such killing.

PA ST 3 P.S. § 459-301.

Many states follow reasonable notice requirements for animals impounded due to lack of rabies inoculation.

All dogs and cats which have been impounded for lack of rabies immunization in accordance with the provisions of this chapter, due notice of which shall have been given to the owner as provided in Section 3-7A-7, may be humanely destroyed and disposed of when not redeemed by the owner within seven days.

AL ST § 3-7A-8

In Wisconsin, a dog may be "sacrificed" if suspected of rabies:

(4) Quarantine or sacrifice of an animal suspected of biting a person or being infected or exposed to rabies.

(a) Quarantine or sacrifice of dog or cat. An officer shall order a dog or cat quarantined if the officer has reason to believe that the animal bit a person, is infected with rabies or has been in contact with a rabid animal. If a quarantine cannot be imposed because the dog or cat cannot be captured, the officer may kill the animal. The officer may kill a dog or cat only as a last resort or if the owner agrees. The officer shall attempt to kill the animal in a humane manner and in a manner which avoids damage to the animal's head.

WI ST § 95.21.  In recognition of local police powers, a city, county, village or town may impose a rabies control program with more restrictive provisions. Id.

Similarly, in Colorado, the health department is given authority to impound any pet animals found running at large.  “Such power to impound and dispose shall extend to any and all animals unclaimed and found or suspected to be affected by rabies, whether wild or domestic.”  CO ST § 25-4-610. Hawaii law provides for immediate seizure of evidently sick or diseased dogs.  Section § 143-12 provides that “[a]ny police officer or animal control officer may seize and, after notice to the owner if the owner can be found, may kill any dog running at large which is so obviously diseased as to be a menace to the health of persons or animals.”  Further, all dogs taken into custody by animal control “which by reason of age, disease, or other causes, are unfit for further use or are dangerous to keep impounded may be forthwith humanely destroyed by the animal control officer.”  HI ST § 143-13.  Apparently, no notice is required to the owner.

Immediate measures are also allowed by statute in North Dakota.  North Dakota allows the health department or other agency acting on its behalf to “promptly seize and humanely kill, impound at the owner's expense, or quarantine any animal” suspected of rabies or any stray or unwanted animal with possible rabies exposure.  ND ST 23-36-03.  The District of Columbia also authorizes the killing of sick or injured animals.  The Mayor may dispose of any wild, sick, or badly injured animal upon its impoundment.  DC CODE § 8-1805(c).  Nebraska allows the impoundment of “[a]ny dog found outside the owner's premises whose owner does not possess a valid certificate of rabies vaccination and valid rabies vaccination tag . . .”  However, under this statute, notice of impounded is required through public notification at the pound itself.  An unclaimed dog impounded under this provision may be disposed at the end of five days.  NE ST § 71-4408.  In North Carolina, “When quarantine has been declared and dogs and cats continue to run uncontrolled in the area, any peace officer or Animal Control Officer shall have the right, after reasonable effort has been made to apprehend the animals, to destroy the uncontrolled dogs and cats and properly dispose of their bodies.”  NC ST § 130A-195.

One case suggests that the reason behind an impoundment ordinance may be to test a dangerous dog for rabies prior to destruction.  Jones By and Through Jones v. City of Prairie City, 740 P.2d 236 (Or.App.,1987).  The specific issue in that case was whether plaintiff stated a claim for relief after enduring rabies shots where a dog was destroyed in two days rather than the ten required by statute.  The court held that the statute, which required the city to hold biting dog for at least ten days to determine whether dog is rabid, did in fact impose a standard of care relevant to determine whether the city's conduct was reasonable.

Municipalities are afforded discretion in enacting police power measures because of the public health and safety concern unregulated animals may cause.  In a case that challenged an ordinance’s application to cats running at large since cats were not expressly mentioned in the ordinance, the court found that the ability to regulate animals at large was based on public health requirements.

. . . we believe the counties clearly have the express power to (1) impound and dispose of stray animals; and (2) the implied authority to further control and regulate dogs, cats and other animals pursuant to the provisions of the Illinois Animal Control Act. There is no meaningful reason for a distinction between stray animals and those simply running at large. The authority to regulate and control is based on public health requirements, not upon ownership of any pet or other animal.

Peoria County v. Capitelli, 494 N.E.2d 155 (Ill.App. 3 Dist.,1986).  The caption from the above case illustrates the legitimate triumph of public interests over the individual interests of ownership in those pets many consider to be members of the family.

X. Conclusion

Police power actions with respect to dogs are often swift and severe.  Municipalities are typically extended broad discretion by the state to enact ordinances related to dogs, including those that call for impoundment and execution.  Much of this power stems from a historical concern about loose dogs and their propensity to contract the rabies virus.  Further, loose dogs were often a concern to livestock interests.  Ironically, while the social climate has changed and the threat of a rabid dog has diminished, local dog laws appear to have increased in number and complexity.  Whether this reflects a true danger due to the possession of "dangerous" breeds of dogs, a societal intolerance for any sort of interference, or a general trend of litigiousness, the fact remains that dogs are subject to even more regulations.  Many laws have evolved to allow a greater owner participation in the legal process rather than justice meted through the end of a gun.  Laws must still meet minimal constitutional standards of due process as many courts are beginning to recognize the enhanced property status of dogs.  What exactly constitutes due process in impoundment and destruction cases is not exactly clear.  At a minimum, courts seem willing to extend notice and a meaningful opportunity to contest dog impoundment and execution claims.  There are legitimate concerns with loose and vicious dogs, such as the obvious risk of human harm, livestock damage, and health problems.  Perhaps a complex society demands complex laws.  But, a proliferation of dog laws reasonably designed to address these concerns must also recognize the elevated status these creatures occupy to their owners.     

 

This section is for all the odds & ends I find concerning laws in my case. It is also where I put things so that I can learn, it is a lot of information, it is sometimes confusing but ultimately it will help you as well if you know these things. That is most times the ONLY power any court has over you- Lack of Knowledge. It is your right, & your responsibility as a Citizen of The Untied State of America to know these things, these principals & laws are written  in blood, the blood of Americans who came before you, who laid down there lives so that you may live in a "Free" country. Unfortunately the people involved in the Judicial system have found ways to abuse the very laws that were intended to protect our rights, this is the ultimate evil of living in our society & until we fight back we are no more than cattle, being shuffled along to slaughter

Criminal procedures

Criminal procedures are safeguards against the indiscriminate application of criminal laws and the wanton treatment of suspected criminals. Specifically, they are designed to enforce the constitutional rights of criminal suspects and defendants, beginning with initial police contact and continuing through arrest, investigation, trial, sentencing, and appeals.

The main constitutional provisions regarding criminal procedure can be found in Amendments IV, V, VI, and VIII to the U.S. Constitution. The Fourth Amendment covers the right to be free from unreasonable searches and arrests:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. A warrant is a paper that shows judicial approval of a search or arrest. The U.S. Supreme Court has held that the Fourth Amendment does not require a warrant for all searches; rather, it prohibits unreasonable searches. All warrantless searches are unreasonable unless they are executed pursuant to one of several exceptions carved out by the Court.

The Fifth Amendment covers an array of procedural concerns, including the death penalty, multiple trials for the same criminal offense (Double Jeopardy), Self-Incrimination, and the general right to due process. It reads, in relevant part,

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury … nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.

The Sixth Amendment addresses the procedures required at trial. It provides,

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Finally, the Eighth Amendment states, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

At first, these amendments were construed as applying only to federal prosecutions. The states were free to enact criminal procedures contrary to them until the passage of the Fourteenth Amendment in 1868. The Fourteenth Amendment forbids the states to "deprive any person of life, liberty, or property, without due process of law" (§ 1). Under the Fourteenth Amendment, states must provide most of the criminal safeguards found in the Fourth, Fifth, Sixth, and Eighth Amendments.

Federal courts must comply with all the criminal procedures listed in the amendments to the Constitution. For state courts, the U.S. Supreme Court has adopted a "selective incorporation" approach to determine precisely what process is due a criminal defendant. Under this approach, only fundamental rights are protected.

According to the Court, fundamental rights in criminal procedure include freedom from unreasonable searches and seizures; freedom from Cruel and Unusual Punishment; assistance of counsel; protection against self-incrimination; confrontation of opposing witnesses; a Speedy Trial; compulsory process for obtaining witnesses; a jury trial for prosecutions for cases in which the defendant could be incarcerated; and protection against double jeopardy. The only protections that are not specifically required of states are the Eighth Amendment prohibition against excessive bail and the Fifth Amendment requirement that infamous crimes be prosecuted by grand jury.

The judicial interpretation of fundamental rights has allowed states considerable leeway in shaping their own criminal procedures. Although their procedural rules and statutes are similar in many respects, federal and state legislatures are responsible for their own criminal procedures, and procedures vary from state to state. State and federal governments may not limit the protections guaranteed by the Constitution, but they may expand them.

Automobile Exception to the Warrant Requirement

An example of this principle may be seen with the so-called automobile exception to the Constitution's search-warrant requirement. Under the automobile exception, states may allow the warrantless search of an automobile, except for the trunk, if the police officer reasonably believes that the vehicle holds evidence of a crime. The U.S. Supreme Court has determined that this exception is not a violation of the Fourth Amendment because drivers have a "reduced expectation of privacy" and because a vehicle is inherently mobile. This reduced expectation of privacy also allows police officers with Probable Cause to search a car to inspect drivers' and passengers' belongings that are capable of concealing the object of the search, even if there is no proof that the driver and passenger were engaged in a common enterprise. Wyoming v. Houghton, 526 U.S. 295, 119 S. Ct. 1297, 143 L. Ed. 2d 408 (1999).

However, states are not required to adopt the automobile exception. The New Hampshire Supreme Court, for example, ruled that all warrantless searches are unreasonable except for a group of well-defined such searches, and this group does not include warrantless Automobile Searches (State v. Sterndale, 139 N.H. 445, 656 A.2d 409 [1995]). Thus, in New Hampshire, a police officer may not base the warrantless search of a vehicle on the mere fact that the place to be searched is a vehicle. New Hampshire, therefore, provides expanded protections under the Fourth Amendment.

Conversely, a state may not allow the search of any vehicle without reasonable suspicion. A vehicle search that is conducted in the absence of reasonable suspicion would be an infringement of guaranteed Fourth Amendment protection, and a court would strike down such an infringement as unconstitutional. A state law may not diminish the scope of the automobile exception by authorizing a warrantless search of an entire vehicle following a traffic stop in which the driver is issued a citation for speeding. Although law enforcement may conduct a full vehicle search if the defendant is formally arrested, the issuance of a traffic citation does not justify the considerably greater intrusion of a full-fledged search. Knowles v. Iowa, 525 U.S. 113, 119 S. Ct. 484, 142 L. Ed. 2d 492 (1998)

Investigation

Criminal prosecutions officially begin with an arrest. However, even before the arrest, the law protects the defendant against unconstitutional police tactics. The Fourth Amendment protects persons against unreasonable searches and seizures by law enforcement officers. Generally, a Search Warrant is required before an officer may search a person or place, although police officers may lawfully prevent a criminal suspect from entering his or her home while they obtain a search warrant. Illinois v. McArthur, U.S. 326, 121 S. Ct. 946, 148 L. Ed. 2d 838 (2001).

Police officers need no justification under the Fourth Amendment to stop persons on the street and ask questions, and persons who are stopped for questioning are completely free to refuse to answer any such questions and to go about their business. But the Fourth Amendment does prohibit police officers from detaining pedestrians and conducting any kind of search of their clothing without first having a reasonable and articulable suspicion that the pedestrians are engaged in criminal activity. The U.S. Supreme Court has held that reasonable suspicion is provided for a stop-and-frisk type of search when a pedestrian who, upon seeing police officers patrolling the streets in an area known for heavy narcotics trafficking, flees from the officers on foot. Illinois v. Wardlow, 528 U.S. 119, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000)

The warrant requirement is waived for many other searches and seizures as well, including a search incident to a lawful arrest; a seizure of items in plain view; a search to which the suspect consents; a search after a Hot Pursuit; and a search under exigent or emergency circumstances. Nor does the Fourth Amendment require the police to obtain a warrant before seizing an automobile from a public place when they have probable cause to believe that the vehicle is forfeitable contraband. Florida v. White, 526 U.S. 559, 119 S. Ct. 1555, 143 L. Ed. 2d 748 (1999).

However, the Fourth Amendment does prohibit police use of a thermal-imaging device aimed at a private home from a public street to detect relative amounts of heat within the home. Such devices are typically employed to determine whether a suspect is using a high-intensity lamp to grow marijuana in his or her home. The U.S. Supreme Court has ruled that the use of thermal-imaging devices constitutes a "search" within the meaning of the Fourth Amendment, and thus their use is presumptively unreasonable without a warrant. Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001).

The Supreme Court also ruled that a state hospital conducted an unreasonable search when it undertook warrantless and nonconsensual urine testing of pregnant women who had manifested symptoms of possible cocaine use. The governmental interest in using the threat of criminal sanctions to deter pregnant women from using cocaine did not justify a departure from the general rule that an official nonconsensual search is unconstitutional if not authorized by a valid search warrant. Ferguson v. City of Charleston, 532 U.S. 67, 121 S. Ct. 1281, 149 L. Ed. 2d 205 (2001).

The U.S. Supreme Court's Fourth Amendment Jurisprudence is splintered over the constitutionality of using fixed checkpoints or roadblocks to conduct warrantless and suspicionless vehicle seizures. The Court has held that the Fourth Amendment allows law enforcement to perform warrantless vehicle seizures at a fixed checkpoint along the nation's border to intercept illegal Aliens, so long as the search is reasonable in light of the "totality of the circumstances". United States v. Arvizu, 534 U.S. 266, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002). The Court also ruled that roadblocks may be used to intercept drunk drivers. However, the Court rejected on Fourth Amendment grounds the use of a roadblock to perform warrantless and suspicionless searches of automobiles for the purpose of drug interdiction. Indianapolis v. Edmond, 531 U.S. 32, 121 S. Ct. 447, 148 L. Ed. 2d 333 (2000).

When an officer seeks a search warrant, he or she must present evidence to a judge or magistrate. The evidence must be sufficient to establish probable cause that evidence of a crime will be found at the place to be searched. Probable cause is a level of belief beyond mere suspicion but short of full certainty. Whether an officer can establish probable cause to obtain a search warrant depends on the facts of the case. For example, if an arrested person is discovered with a small amount of marijuana, this alone will not justify a search of the person's home. However, if the person is discovered with a large amount of marijuana, the quantity may support the suspicion that more marijuana may be found in the person's home, and the large amount may be used as the basis for obtaining a search warrant.

Police officers seeking a search warrant must state, under oath and with particularity, the facts supporting probable cause. If the search warrant is later found to be lacking in probable cause, or if important statements made by the officers are found to have been intentionally misleading, the evidence seized pursuant to the warrant might not be admissible at trial. Moreover, if the search goes beyond the scope granted in the warrant, the evidence seized as a result of that encroachment might not be admissible at trial. For example, if the warrant states that the officers may search only the suspect's apartment, they may not expand the search to a storage closet outside the apartment.

In executing a search warrant pursuant to the Fourth Amendment, law enforcement officers may enter private property without knocking or announcing their presence if the officers have reasonable suspicion that knocking and announcing would be dangerous, futile, or would inhibit an effective criminal investigation by allowing the destruction of evidence. While the lawfulness of a "no-knock" entry does not depend on whether property is subsequently damaged during the search, excessive or unnecessary destruction of property in the course of the search might violate Fourth Amendment rights, even though the entry itself is lawful and the fruits of search are not subject to suppression. United States v. Ramirez, 523 U.S. 65, 118 S. Ct. 992, 140 L. Ed. 2d 191 (1998).

The Exclusionary Rule

The Exclusionary Rule protects the right to be free from unreasonable searches. This rule holds that otherwise incriminating subject matter that police officers have obtained illegally must be excluded from evidence. Along with the right of appeal, the exclusionary rule is a defendant's chief remedy for a violation of his or her rights in a criminal procedure.

The Stages OF A Criminal Prosecution

A criminal prosecution usually begins with an arrest. In some cases, the arrest is the culmination of a police investigation; in other cases, it may occur with minimal police investigation. Either way, the manner in which the police investigate suspects and collect evidence is almost always an issue in a criminal case.

During an arrest, a criminal suspect is advised of his or her Miranda rights. These include the right to remain silent and the right to an attorney. After arrest, the defendant is subjected to a cursory search for weapons and contraband. The defendant is then driven to the nearest jail, police station, or detention center for booking. During booking, the defendant is photographed and fingerprinted, and the arrest is entered into the police log, or blotter. The defendant is informed of the charge or charges if she or he has not already been so informed. The defendant is also allowed to make one telephone call. After being stripped of all personal items, belts, and shoelaces, the defendant may be placed in a holding cell to await presentation before a magistrate. For misdemeanors, which are less serious than felonies, the defendant may be released with the posting of a cash bond and a promise to appear before a magistrate.

While the person waits for this first appearance before the court, a police officer prepares a complaint against the suspect. The complaint is a document that describes the alleged crime. It is screened by prosecutors and then submitted to the court. The court reviews the complaint to determine whether there is sufficient legal basis to hold the person in custody. If the magistrate finds that the facts alleged do not establish Probable Cause to believe that the suspect committed the crime, the magistrate must dismiss the complaint and order the release of the person from custody.

The first appearance must be held without unnecessary delay. Many jurisdictions impose a twenty-four-hour limit on initial detention before a hearing, but this limit may extend to seventy-two hours if the arrest is made on a Friday.

In the first appearance, the magistrate informs the defendant of the charge or charges as set forth in the complaint. The magistrate also informs the defendant of his or her rights, such as the right to remain silent and the right to an attorney. If the defendant in a felony case is not already represented by private counsel and is unable to afford private counsel, the court appoints an attorney. This is usually a public defender, but it may be a private defense attorney paid by the court or working free of charge. In most states, the attorney meets with and represents the defendant in the first appearance. The defendant in a misdemeanor case does not always qualify for a free attorney.

If the magistrate finds probable cause, the magistrate sets bail in the first appearance. Bail consists of the conditions the defendant will have to meet to gain release from custody pending trial. Acceptable bail is usually cash or other liquid assets. Bail is intended to guarantee the defendant's appearance at trial. In some jurisdictions, if the magistrate determines that the defendant presents a danger to the community or may attempt to flee, the magistrate may refuse to set bail. In such a case, the defendant is forced to remain in jail until the case is resolved.

If the charge is a misdemeanor, the first appearance serves as an Arraignment, where the defendant enters a plea of guilty or not guilty. The magistrate then allows the defendant to post bail or leave on her or his own recognizance, with the understanding that the defendant will reappear for trial.

Following the first appearance, a felony case proceeds to a Preliminary Hearing. Before this hearing is held, the prosecutor and the defense attorney communicate to see if there is any possibility of a plea bargain, or a mutually acceptable disposition of the case. If a deal can be reached, and it is acceptable to the defendant, it is presented to the court for approval at the preliminary hearing.

The preliminary hearing is conducted by the magistrate to determine whether the prosecution has sufficient evidence to continue the prosecution. Unlike the first appearance, the preliminary hearing is adversarial. The prosecutor relies on witnesses to present the prosecution's evidence, and the defendant may do the same. Both sides are allowed to question, or cross-examine, the opposing side's witnesses. After this hearing, the court may dismiss the charges if they are not supported by probable cause.

In some states, review by a Grand Jury is also required before a felony prosecution may continue; this review is not required for a misdemeanor prosecution. A grand jury is a group of private citizens summoned to review, in private, the prosecution's evidence. Generally, a grand jury consists of more jurors than a trial jury, which usually numbers twelve. In a grand jury proceeding, the prosecutor presents the evidence against the defendant to the grand jurors, and the grand jurors may ask questions of the prosecutor. The prosecutor then presents a proposed indictment, or a written accusation sworn to by the prosecutor. If a majority of the grand jury finds no probable cause for the prosecution, it returns a no bill, or a refusal of the indictment. If a majority finds probable cause, the grand jury returns a true bill, and prosecution continues.

Following a true-bill finding by a grand jury, the prosecution files the indictment with the trial court. Where no grand jury was required and only a preliminary hearing was held, the prosecution files an information, which is similar in form to an indictment but written and approved by the prosecutor alone.

After the indictment or information courts review criminal convictions for trial court errors. They rarely overturn verdicts on evidentiary bases. Even if an appeals court finds a trial court error, it will affirm the conviction if it feels the error did not affect the outcome of the case.

Generally, state court defendants appeal to a first court of appeals, then to the highest state court (usually the state supreme court), and then to the U.S. Supreme Court. In federal cases, defendants appeal to a U.S. court of appeals and then to the U.S. Supreme Court. The review of appeals after the first appeal is discretionary; that is, the court may decline to hear the case.

After exhausting all appeals, a defendant sentenced to incarceration may collaterally attack the conviction and sentence. This means the defendant attacks the conviction in an action other than an appeal. The most common method of collateral attack is submission of a petition for a writ of Habeas Corpus. This is a civil action against the warden of a prison, challenging the legality of the imprisonment. If the court approves the writ, the inmate must be set free.

A habeas corpus petition is not an appeal; courts will grant a writ of habeas corpus only if the defendant can prove that the court that sent the petitioner to prison was actually powerless to do so or that such detention violated the petitioner's constitutional rights. Generally, an inmate will ask for the writ in state court before filing in federal court.

All states also have a procedure in place to hear claims of newly discovered evidence. However, no relief is granted if the new evidence would not have made a difference in the verdict.

Some inmates are given early release from prison, or Parole. Parole is granted by the state or federal parole board or correctional board. It allows the inmate to finish the prison sentence in the community. The court requires a paroled defendant, or parolee, to meet certain conditions on release and to meet regularly with a parole officer for the duration of the sentence.

In some states, if the conviction was for first-degree murder, the defendant may be sentenced to death. Where the sentence is death and the defendant has lost all appeals and collateral attacks, the defendant may ask the governor of the state for clemency. For federal crimes, the president retains the power of clemency. Clemency is forgiveness and mercy, and it usually comes in the form of a pardon or of a commutation of a sentence. A pardon releases the inmate from custody and restores his or her legal rights and privileges, such as voting and gun ownership. A commutation decreases or suspends an inmate's sentence. A commutation is a lesser form of clemency because it does not restore the legal rights of the inmate.

Cross-references

Criminal Procedure; Double Jeopardy.

The exclusionary rule deters police misconduct in searches. Without the admission of the evidence at trial, the case against the alleged criminal may be dismissed, and the officer's actions in gathering that evidence will have been wasted effort. The exclusionary rule also prohibits the use of evidence obtained in violation of other constitutional rights, such as statements of the accused that are elicited in violation of the right against self-incrimination.

The most important exception to the exclusionary rule is the good-faith exception. Essentially, the good-faith exception allows the use of evidence obtained in violation of a person's constitutional rights if the officer who obtained the evidence acted in a reasonable manner. If evidence is illegally seized and does not fall under an exception but is erroneously admitted at trial by the judge, a guilty verdict will be reversed on appeal if the prosecution cannot show Beyond a Reasonable Doubt that the evidence did not contribute to the conviction.

When officers have collected evidence pursuant to a search warrant, the burden is on the defendant to show that the warrant lacked probable cause or that other problems tainted the collection process. For a warrantless search, the prosecution bears the burden of proving that the search was reasonable. However, before evidence seized during a warrantless search will be excluded from trial, the defendant must prove that he or she had a reasonable expectation of privacy in the place that was searched. Homeowners, for example, enjoy a reasonable expectation of privacy in items that they keep inside their homes. However, houseguests might not have a similar expectation of privacy in the homes they are visiting, especially when they do not stay overnight and their sole purpose for being inside the house is to participate in criminal activity such as a drug transaction. Minnesota v. Carter, 525 U.S. 83, 119 S. Ct. 469, 142 L. Ed. 2d 373 (1998). Disputes over the application of the exclusionary rule are usually resolved at a pretrial proceeding called a "suppression hearing."

Arrest

The general rule is that to make an arrest, the police must obtain an arrest warrant. However, if an officer has probable cause to believe that a crime has been committed, and there is no time to obtain a warrant, the officer may make a warrantless arrest. An officer also may make a warrantless arrest of persons who commit a crime in the officer's presence.

An invalid arrest is not generally a defense to prosecution. However, if an arrest is unsupported by probable cause, evidence obtained pursuant to the invalid arrest can be excluded from trial.

When an arrest is made, the arresting officer must read the Miranda warnings to the arrestee. These warnings apprise an arrestee of the right to obtain counsel and the right to remain silent. If these warnings are not read to an arrestee as soon as he or she is taken into custody, any statements that the arrestee makes after the arrest may be excluded from trial.

After the arrest, the police must follow certain guidelines during their investigations. For example, if the arrestee requests an attorney or expresses a wish to remain silent, the officers must honor the request and refrain from questioning the arrestee. However, the police may attempt to confirm that they have arrested the right person. They may do so by showing a victim a photo array that includes a picture of the suspect; by arranging a lineup of live persons at the police station, with the suspect included in the lineup; or by organizing a show-up, which is a personal showing of the arrestee to the victim shortly after commission of the crime.

Where photo arrays or lineups are used, the police must refrain from highlighting the arrestee. For example, if an arrestee is white, an officer may not show a witness a series of photographs in which all of the other subjects are black. If an identification procedure is too suggestive, any identification by the victim may be excluded from trial.

Trial

At trial, a criminal defendant has a number of constitutional rights, including the Right to Counsel, the right to a public trial, the right to a trial by jury, the right to a fair and impartial trial, the right to confront witnesses in court, the right to compulsory process to obtain witnesses, and the Privilege against Self-Incrimination. Violation of any of these rights may result in the reversal or vacation of a conviction on appeal.

There are exceptions and nuances to most of the procedural trial rights. Under the Sixth Amendment, if a defendant is indigent, or unable to afford an attorney, the court will appoint an attorney. This right applies only for felony charges and cases in which actual imprisonment may be imposed. Accordingly, an indigent who is not represented by counsel at trial may not be sentenced to incarceration, regardless of whether conviction of the offense warrants incarceration (Scott v. Illinois, 440 U.S. 367, 99 S. Ct. 1158, 59 L. Ed. 2d 383 [1979]). However, a defendant will not be appointed an attorney if the he or she is able to pay for a private one.

A criminal defendant has the right to an attorney from the first critical stage of the criminal process through the end. An attorney must be present at the request of the defendant during such events as interrogation, lineup identifications after charges have been filed, preliminary hearings before the court, trial, and sentencing.

The Sixth Amendment right to counsel includes the mandate that a defendant's counsel must be effective and not incompetent. Attorneys must generally consult with their clients about trial strategy and tactics, in order to be effective and competent. However, a criminal defense attorney's failure to consult with a client before deciding against filing a post-conviction appeal does not necessarily render his or her assistance ineffective or incompetent. While the better practice would be for attorneys to always consult with their clients regarding the possibility of appeal, the Sixth Amendment only requires such consultation when there is reason to believe either (1) that any rational defendant would want to appeal; or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. Roe v. Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000).

A defendant is free to reject counsel and to proceed pro se, or by self-representation. However, a judge may disregard the defendant's request and appoint an attorney if the pro se defendant engages in dilatory or disruptive tactics. Additionally, state courts of appeal may disregard a defendant's request to represent himself or herself on appeal without violating Sixth Amendment rights. Martinez v. Court of Appeals of California, Fourth Appellate Dist.,, 528 U.S. 152, 120 S. Ct. 684, 145 L. Ed. 2d 597 (2000)

The Sixth Amendment right to a trial by jury does not guarantee a jury in all cases. The right generally applies only in "serious cases"—which are generally considered to be those in which conviction can result in incarceration for more than six months. When a jury trial is not guaranteed, the trial court judge will hear the case and make a decision.

In federal court, a jury verdict must be unanimous. This directive is not applicable to the states. In some states, a vote of nine out of twelve jurors is sufficient to convict or to acquit. States may even provide as few as six jurors. Six is the minimum, because juries should represent a cross section of the community. If a jury of six is used, the verdict must be unanimous.

Under the Confrontation Clause of the Sixth Amendment, a defendant has the right to cross-examine all prosecution witnesses at trial. In limited circumstances, the out-of-court statements made by a witness who is absent from court may be offered through the testimony of a third party. Known as Hearsay statements, this type of evidence may be admitted if the statements were made under oath and subject to cross-examination by the defendant's attorney, and if the witness is unavailable to testify at trial despite the best efforts of the prosecution. However, a defendant's Sixth Amendment right to confront and to cross-examine the accuser in open court is violated when the prosecution introduces the incriminating hearsay statements of a non-testifying co-defendant in a joint trial, even if the defendant's name is redacted from the incriminating statements, because juries will often realize that the redacted portions are referring to the defendant. Gray v. Maryland, 523 U.S. 185, 118 S. Ct. 1151, 140 L. Ed. 2d 294 (1998)

The Fifth Amendment privilege against self-incrimination extends from the moment of custody. A defendant need not make statements or testify at trial, and that right is absolute. However, with a sufficient showing of need by the prosecution, self-incrimination may come from sources other than the defendant's statements or testimony. For example, a court may force a defendant to appear before witnesses for identification; to provide handwriting or blood or voice or fingerprint samples; or to repeat certain words or gestures.

However, the mere fact that a defendant has pled guilty to a criminal act does not waive the privilege against self-incrimination during the sentencing phase. As a result, a defendant has the right to remain silent, during sentencing, about facts that bear upon the severity of the sentence, and the sentencing court may not draw an adverse inference from the defendant's silence. Mitchell v. United States, 526 U.S. 314, 119 S. Ct. 1307, 143 L. Ed. 2d 424 (1999).

If the defendant does testify, he or she may be questioned by the prosecutor about previously inadmissible statements that contradict that testimony. Thus, the Fifth Amendment privilege against self-incrimination will not apply if the defendant has made statements that are contrary to testimony given on the witness stand. Nor does the Fifth Amendment prohibit a prosecutor from calling the jury's attention during closing arguments to the fact that the defendant had the opportunity to hear all other witnesses testify and to tailor his testimony accordingly. The Fifth Amendment prohibits the prosecution from commenting to the jury about the defendant's failure to testify at trial, but it does not prohibit the prosecution from making comments that impeach the defendant's credibility after her or she has testified. Portuondo v. Agard, 529 U.S. 61, 120 S. Ct. 1119, 146 L. Ed. 2d 47 294 (2000).

The Compulsory Process Clause of the Sixth Amendment gives a defendant the right to obtain favorable witnesses. This means that the defendant has the same power as the prosecutor to subpoena witnesses. However, if the government, acting in Good Faith, deports a potential defense witness (i.e., makes the witness leave the jurisdiction), it does not violate compulsory process rights.

The Sixth Amendment grants the right to "an impartial jury of the State and district wherein the crime shall have been committed." This clause gives a defendant the right to question jurors for bias and prejudice. The right belongs to both the defense and the prosecution, and it is exercised in a proceeding called Voir Dire. In voir dire, both sides are allowed to question jurors and to reject a certain number of jurors, until the jury pool is complete. The rejection of jurors may not be based on race, sex, or national origin.

At trial, the prosecution has the burden of proving the defendant's guilt beyond a Reasonable Doubt. This level of belief is abstract and has been described in a number of ways. The best definition is that any doubt regarding the defendant's guilt should not be fanciful or conjured up to avoid delivering a verdict of guilty. This standard is reserved for criminal trials; it is a higher standard than "a preponderance of the evidence" and "clear and convincing evidence," the burdens of proof used in civil trials.

The vast majority of criminal cases are resolved with a plea of guilty before, or sometimes during, trial. Prosecutors may use their discretion to reduce charges in exchange for a guilty plea, in an arrangement known as a pleabargain. A plea of guilty cannot be revoked after a court has accepted it. Generally, it is appealable only if the right to a trial was not knowingly, intelligently, and voluntarily waived.

Prosecutors are often content with a pleabargain because it satisfies the criminal justice system's goal of encouraging people to accept responsibility for their actions, and because pleabargains avoid costly, time-consuming trials. A prosecutor also may agree to defer prosecution and to drop charges after a specified period if the defendant fulfills certain conditions. A defense attorney may seek a plea-bargain if the evidence against the defendant is overwhelming. Both sides are free to reject any plea-bargains and to proceed to trial.

If a defendant is acquitted of all criminal charges, the prosecution may not subsequently prosecute the defendant for the same act that produced those charges. This right is derived from the prohibition of double jeopardy that is found in the Fifth Amendment. In a jury trial, double jeopardy protection attaches when the jury is impaneled and sworn in. For bench trials, or cases presented to a judge only, double jeopardy protection begins when the first witness is sworn in. Under double jeopardy protection, the prosecution may not deliberately cause a mistrial if the trial is going poorly for the prosecution. However, if the jury cannot reach a verdict, and the court declares a mistrial, the defendant may be retried for the same offense.

Generally, a defendant may not face both federal and state prosecutions for the same offense. One exception to this general rule is that a defendant in state court may face charges in federal court for the same act with the permission of the attorney general, but only if the offense is within the jurisdiction of the federal court. For example, a conviction for driving while intoxicated raises no federal concerns; federal laws do not address that offense. Thus, the attorney general may not authorize the federal prosecution of a defendant who has been acquitted in state court of driving while intoxicated. The acquitted defendant may, however, face a civil lawsuit for damages, because civil actions do not put a person "in jeopardy of life or limb," and therefore double jeopardy does not apply to them (U.S. Const. amend. V, cl. 2). Similarly, the Double Jeopardy Clause is not violated when a defendant faces both criminal and administrative proceedings arising out of a single wrongful act. Hudson v. United States, 522 U.S. 93, 118 S. Ct. 488, 139 L. Ed. 2d 450 (1997).

Postconviction

Sentencing After conviction, a defendant may be allowed to remain free until sentencing. The decision on this issue is made by the court, and it depends on the nature of the conviction and the nature of the defendant's perceived character. For example, a court will not allow a convicted murderer or rapist to remain free until sentencing. A court may, however, allow a nonviolent convict to post a bond and to remain free pending sentencing.

Sentencing for a felony conviction is usually heard by the court in a separate hearing held several days or weeks after the verdict. At a felony sentencing hearing, the prosecution makes a recommendation of punishment, and the defendant usually argues for leniency. For lesser offenses, such as misdemeanors and violations, sentencing may immediately follow the verdict.

Judges generally have wide discretion to craft individualized sentences within statutory guidelines. However, states violate defendants' Sixth Amendment right to trial by jury in capital cases when they authorize the sentencing judge alone to determine the presence or absence of aggravating factors required for the imposition of the death penalty. Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002). And where a capital defendant's future dangerousness is at issue and the only sentencing alternative to death available to the jury is life imprisonment without the possibility of Parole, due process requires the court to allow the defendant to inform the jury of his or her parole ineligibility, either by a jury instruction or in arguments by counsel. Shafer v. South Carolina, 532 U.S. 36, 121 S. Ct. 1263, 149 L. Ed. 2d 178 (2001).

Sentencing can include any combination of community service, Forfeiture of property, fines, and incarceration. Courts may also exercise their sentencing discretion and order a term of Probation.

Under state and federal forfeiture laws, law enforcement authorities are authorized to confiscate property of certain criminal defendants. Under federal law, persons who have been convicted of controlled-substance violations or Racketeering schemes may be forced to relinquish much of their Personal Property, including real estate, stocks, cash savings, and vehicles. States also authorize forfeitures for the violation of certain state laws, such as those regarding controlled substances and the solicitation of prostitution.

Probation releases a convicted defendant into the community under the supervision of a probation officer. This type of sentence is generally reserved for first-time offenders, to give them an opportunity to reform and rehabilitate.

A probationer will be called back into court and sentenced to serve a term of incarceration if he or she breaks the terms of the probation. For example, suppose that a person who has been convicted of marijuana possession and sentenced to probation has been ordered to complete treatment for chemical dependency and to report to a probation officer twice a week. If the probationer fails to complete these requirements, the court may order the defendant to serve a period of incarceration for the marijuana offense.

If probation is revoked, the probationer is entitled to counsel. However, an indigent probationer is not automatically entitled to a court-appointed attorney. Whether a probationer receives free counsel depends on a number of factors. Generally, the court will appoint an attorney if an indigent probationer denies committing the alleged act and faces lengthy imprisonment.

Under the Eighth Amendment prohibition of cruel and unusual punishment, sentencing and confinement in jail or prison may not involve torture or barbarity. The Eighth Amendment is also construed as meaning that the punishment should fit the crime. For example, it would be cruel and unusual punishment to sentence a person who has been convicted of trespassing to the same punishment as a person who has been convicted of Homicide.

With regard to the amount of punishment that may be inflicted, the prohibition against cruel and unusual punishment also bars punishment that is clearly out of proportion to the offense committed. The U.S. Supreme Court has considered the issue of proportionality, particularly in the context of the death penalty. In Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977), the Court held that death was a disproportionate penalty for the crime of raping an adult woman.

But the high court has held that the death penalty itself is not inherently cruel, instead describing it as "an extreme sanction, suitable to the most extreme of crimes" (Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 [1976]). Modern methods of administering Capital Punishment, such as shooting, hanging, electrocution, and lethal injection, have been upheld as constitutional by federal and state courts. The U.S. Supreme Court has held that statutes providing a mandatory death sentence for certain degrees or categories of murder are unconstitutional because they preclude sentencing authorities from considering aspects of a particular defendant's character or record, or from considering circumstances that might mitigate a particular crime (see Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 [1978]). In Ford v. Wainwright, 477 U.S. 399, 106 S. Ct. 2595, 91 L. Ed. 2d 335 (1986), the Court held that the Eighth Amendment prohibits states from inflicting the penalty of death upon a prisoner who is insane.

The U.S. Supreme Court has also ruled that the execution of mentally retarded criminals violates the Eighth Amendment's guarantee against cruel and unusual punishment. Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002). Citing "evolving standards of decency," the Court stated that its decision was informed by a national consensus reflected in deliberations of the American public, legislators, scholars, and judges. Atkins overruled Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989), a decision rendered just 13 years earlier. However, in Stanford v. Kentucky, 492 U.S. 361, 109 S. Ct. 2969, 106 L. Ed. 2d 306 (1989), the Court found that there was no national consensus prohibiting the execution of juvenile offenders over age 15.

Appeal Contrary to popular belief, the U.S. Constitution does not guarantee the right to appeal a criminal conviction. Most states do provide the right to an appellate review of criminal convictions, to protect against trial court errors. However, many states limit their review of state court convictions by hearing only short oral arguments and issuing decisions without explanation.

Federal statutes grant criminal defendants in federal court the right to appeal. Only one review is granted as a matter of right, and this is to a U.S. court of appeals. Review of state and federal convictions in the U.S. Supreme Court is discretionary.

Where a criminal appeal is granted by state law as a matter of right, the court is required to appoint an attorney to represent indigent defendants on appeal. An indigent defendant is also entitled to a free trial transcript or other means of affording appellate review; this applies to any indigent defendant, including one who is punished only with a fine.

On appeal, the burden is on the defendant to prove that an error occurred in the trial or that the evidence was insufficient to convict. Appellate courts reviewing a defendant's challenge to the appropriateness of a particular sentence must generally apply a deferential standard of review. Sentencing courts are in a better position than are appellate courts to decide whether a particular set of individual circumstances justifies the imposition of a given sentence under the sentencing guidelines, the U.S. Supreme Court has observed. Burford v. United States, 532 U.S. 59, 121 S. Ct. 1276, 149 L. Ed. 2d 197 (2001). Defendants must raise all claims of trial error in their first appeal in order to preserve the claims for future appeals.

 

Voir dire

Voir dire consists of oral questions asked of prospective jurors by the judge, the parties, or the attorneys, or some combination thereof. This oral questioning, often supplemented by a prior written questionnaire, is used to determine whether a potential juror is biased, knows any of the parties, counsel, or witnesses, or should otherwise be excluded from jury duty. Voir dire is a tool used to achieve the constitutional right to an impartial jury, but it is not a constitutional right in itself.

Typically, a number of prospective jurors are called to the jury box, given an oath, and then questioned as a group by counsel or the court. Local federal rules generally provide for questioning by the judge. Individual or sequestered voir dire is used in rare cases where extensive publicity may potentially damage a defendant's case; some jurisdictions mandate it in death penalty cases. A prospective juror must answer questions fully and truthfully but cannot be faulted for failing to disclose information that was not sought.

The purpose of voir dire is not to educate jurors but to enable the parties to select an impartial panel. Therefore, voir dire questions should test the capacity and competency of the jurors without intentionally or unintentionally planting prejudicial matter in their minds. Trial judges have wide latitude in setting the parameters of questioning, including the abilities to determine the materiality and propriety of the questions and to set the time allowed for voir dire.

A party may move for dismissal for cause to remove any potential juror shown to be connected to or biased in the case. A court may sustain counsel's request to strike a juror for cause, in which case the juror steps aside and another is called. Or a judge may overrule a challenge for cause if a suitable reason has not been sufficiently established. Challenges for cause are not limited in number.

Each side also exercises peremptory challenges to further shape the composition of the jury. Peremptory challenges are used to dismiss a prospective juror without the need to provide a reason for dismissal. Statutes or court rules typically set the number of peremptory challenges afforded to a party.

Voir dire also describes a court's preliminary examination of a prospective witness whose competency or qualifications have been challenged.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

voir dire (vwahr [with a near-silent "r"] deer) n. from French "to see to speak," the questioning of prospective jurors by a judge and attorneys in court. Voir dire is used to determine if any juror is biased and/or cannot deal with the issues fairly, or if there is cause not to allow a juror to serve (knowledge of the facts, acquaintanceship with parties, witnesses or attorneys, occupation which might lead to bias, prejudice against the death penalty, or previous experiences such as having been sued in a similar case). Actually one of the unspoken purposes of the voir dire is for the attorneys to get a feel for the personalities and likely views of the people on the jury panel. In some courts the judge asks most of the questions, while in others the lawyers are given substantial latitude and time to ask questions. Some jurors may be dismissed for cause by the judge, and the attorneys may excuse others in "peremptory" challenges without stating any reason. 2) any hearing outside the presence of the jury held during trial. (See: jury, peremptory challenge)

 

The right to challenge

The right to challenge a juror without assigning, or being required to assign, a reason for the challenge.During the selection of a jury, both parties to the proceeding may challenge prospective jurors for a lack of impartiality, known as a challenge for cause. A party may challenge an unlimited number of prospective jurors for cause. Parties also may exercise a limited number of peremptory challenges. These challenges permit a party to remove a prospective juror without giving a reason for the removal.

Peremptory challenges provide a more impartial and better qualified jury. Peremptory challenges allow an attorney to reject a potential juror for real or imagined partiality that would be difficult to demonstrate under the challenge for cause category. These challenges, however, have become more difficult to exercise because the U.S. Supreme Court has forbidden peremptory strikes based on race or gender.

Parties do not have a federal constitutional right to exercise peremptory challenges. Peremptory challenges are granted by statute or by case law. The number of challenges is usually determined by statute, but some jurisdictions allow the trial court to grant additional peremptory challenges. In federal court each side is entitled to three peremptory challenges. If more than two parties are involved in the proceeding, the court may either grant additional challenges or restrict the parties to the minimum number of challenges.

Peremptory challenges came under legal attack in the 1980s. Critics claimed that white prosecutors used their peremptory challenges to remove African Americans from the jury when the criminal defendant was also African American because the prosecutors thought that the potential jurors would be sympathetic to a member of their own race. This constituted racial discrimination and a violation of the Fourteenth Amendment's equal protection clause.

The U.S. Supreme Court, in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), prohibited prosecutors from excluding prospective jurors on the basis of race. Under the Batson test, a defendant may object to a prosecutor's peremptory challenge. The prosecutor then must "come forward with a neutral explanation for challenging black jurors." If the prosecutor cannot offer a neutral explanation, the court will not excuse the juror.

The Court extended this holding in criminal proceedings in two later cases. In Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991), the Court broadened the Batson rule by stating that a defendant need not be of the same race as the excluded juror in order to successfully challenge the juror's exclusion. In Georgia v. McCollum, 505 U.S. 42, 112 S. Ct. 2348, 120 L. Ed. 2d 33 (1992), the Court held that the defense's exercise of peremptory challenges to strike African American jurors on the basis of their race was equally forbidden. Previously, the court had ruled in Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S. Ct. 2077, 114 L. Ed. 2d 660 (1991), that in civil trials a private party could not exclude prospective jurors on account of their race by using peremptory challenges. This series of decisions makes any racial exclusion in jury selection constitutionally suspect.

The Supreme Court has also forbidden peremptory challenges based on gender. In J. E. B. v. Alabama, 511 U.S. 127, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994), the Court ruled that striking jurors on the basis of gender serves to perpetuate stereotypes that are prejudicial and based on historical discrimination. No overriding State Interest justified peremptory challenges on the basis of gender. Permitting gender-based strikes could also have undermined the Batson holding, because gender might be used as an excuse for racial discrimination.

In an extension of Batson, the Supreme Court of Connecticut ruled that the Equal Protection Clause barred the prosecutor from striking prospective jurors based on their religious affiliation. The court, in State v. Hodge, 726 A.2d 531 (Conn.1999), distinguished religious beliefs and religious affiliations. It held that litigants could strike prospective jurors whose religious beliefs would prevent them from performing their duties as jurors.

Further readings

Beck, Cobrun R. 1998."The Current State of the Peremptory Challenge." William and Mary Law Review 39 (February).

Fahey, William F. 1996. "Peremptory Challenges." Federal Lawyer 43 (October).

Hoffman, Morris B. 1997. "Peremptory Challenges Should Be Abolished: A Trial Judge's Perspective." University of Chicago Law Review 64 (summer).

Schwartz, Edward P., and Warren F. Schwartz. 1996. "The Challenge of Peremptory Challenges." Journal of Law, Economics & Organization 12 (October).

Cross-references

Case Law; Federal Courts; Jurisdiction; Jury; Trial.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

peremptory challenge n. the right of the plaintiff and the defendant in a jury trial to have a juror dismissed before trial without stating a reason. This challenge is distinguished from a "challenge for cause" (reason) based on the potential juror admitting bias, acquaintanceship with one of the parties or their attorney, personal knowledge about the facts, or some other basis for believing he/she might not be impartial. The number of peremptory challenges for each side will differ based on state law, the number of parties to a case, and whether it is a civil or criminal trial. The usual phraseology used by lawyers exercising the challenge is "Juror number seven may be excused." (See: jury, challenge for cause, voir dire)

Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved.

peremptory challenge noun absolute challenge, arbitrary challenge, axiomatic challenge, certain challenge, challenge as of right, challenge within prerogative, concluuive challenge, decision challenge, discretionary challenge, final determining challenge, guaranteed challenge, objeccion as of right, positive challenge, rejection as of right, right to eliminate jurors, self-determined challenge, unperrtive challenge, unrestricted challenge
Associated concepts: challenge for cause

challenge for cause n. a request that a prospective juror be dismissed because there is a specific and forceful reason to believe the person cannot be fair, unbiased or capable of serving as a juror. Causes include acquaintanceship with either of the parties, one of the attorneys or a witness, the potential juror's expression during voir dire (questioning of the prospective jurors) of inability to be unbiased due to prior experience in a similar case (having been convicted of drunk driving, being a battered wife, etc.), any obvious prejudice, or inability to serve (such as being mentally disturbed). The judge determines if the person shall be dismissed. Challenges and dismissal for cause differ from "peremptory challenges," which each side may use to dismiss potential jurors without stating any reason. (See: peremptory challenge, jury, juror, voir dire, panel, venire)

 

Reasonable doubt                                                                                        

A standard of proof that must be surpassed to convict an accused in a criminal proceeding.Reasonable doubt is a standard of proof used in criminal trials. When a criminal defendant is prosecuted, the prosecutor must prove the defendant's guilt Beyond a Reasonable Doubt. If the jury—or the judge in a bench trial—has a reasonable doubt as to the defendant's guilt, the jury or judge should pronounce the defendant not guilty. Conversely, if the jurors or judge have no doubt as to the defendant's guilt, or if their only doubts are unreasonable doubts, then the prosecutor has proven the defendant's guilt beyond a reasonable doubt and the defendant should be pronounced guilty.

Reasonable doubt is the highest standard of proof used in court. In civil litigation the standard of proof is either proof by a preponderance of the evidence or proof by clear and convincing evidence. These are lower burdens of proof. A preponderance of the evidence simply means that one side has more evidence in its favor than the other, even by the smallest degree. Clear and convincing evidence is evidence that establishes a high probability that the fact sought to be proved is true. The main reason that the high proof standard of reasonable doubt is used in criminal trials is that criminal trials can result in the deprivation of a defendant's liberty or in the defendant's death, outcomes far more severe than occur in civil trials where money damages are the common remedy.

Reasonable doubt is required in criminal proceedings under the due process clause of the Fifth Amendment to the U.S. Constitution. In in re winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970), the U.S. Supreme Court ruled that the highest standard of proof is grounded on "a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free."

The reasonable doubt standard is not used in every stage of a criminal prosecution. The prosecution and defense need not prove beyond a reasonable doubt that every piece of evidence offered into trial is authentic and relevant. If a prosecutor or defendant objects to a piece of evidence, the objecting party must come forward with evidence showing that the disputed evidence should be excluded from trial. Then the trial judge decides to admit or exclude it based on a preponderance of the evidence presented. A similar procedure employing a preponderance standard is used when a party challenges a variety of evidence, such as coerced confessions, illegally seized evidence, and statements extracted without the furnishing of the so-called Miranda warning.

The reasonable doubt standard is inapplicable to still other phases of a criminal prosecution. Lower standards of proof are permissible in Parole revocation proceedings, proceedings to revoke Probation, and prison inmate disciplinary proceedings.

The standard that must be met by the prosecution's evidence in a criminal prosecution: that no other logical explanation can be derived from the facts except that the defendant committed the crime, thereby overcoming the presumption that a person is innocent until proven guilty.

If the jurors or judge have no doubt as to the defendant's guilt, or if their only doubts are unreasonable doubts, then the prosecutor has proven the defendant's guilt beyond a reasonable doubt and the defendant should be pronounced guilty.

Beyond a reasonable doubt

The term connotes that evidence establishes a particular point to a moral certainty and that it is beyond dispute that any reasonable alternative is possible. It does not mean that no doubt exists as to the accused's guilt, but only that no Reasonable Doubt is possible from the evidence presented.

Beyond a reasonable doubt is the highest standard of proof that must be met in any trial. In civil litigation, the standard of proof is either proof by a preponderance of the evidence or proof by clear and convincing evidence. These are lower burdens of proof. A preponderance of the evidence simply means that one side has more evidence in its favor than the other, even by the smallest degree. Clear and Convincing Proof is evidence that establishes a high probability that the fact sought to be proved is true. The main reason that the high proof standard of reasonable doubt is used in criminal trials is that such proceedings can result in the deprivation of a defendant's liberty or even in his or her death. These outcomes are far more severe than in civil trials, in which money damages are the common remedy.

Cross-references

Clear and Convincing Proof; Due Process of Law; Preponderance of Evidence; Reasonable Doubt.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

beyond a reasonable doubt adj. part of jury instructions in all criminal trials, in which the jurors are told that they can only find the defendant guilty if they are convinced "beyond a reasonable doubt" of his or her guilt. Sometimes referred to as "to a moral certainty," the phrase is fraught with uncertainty as to meaning, but try: "you better be damned sure." By comparison it is meant to be a tougher standard than "preponderance of the evidence" used as a test to give judgment to a plaintiff in a civil (non-criminal) case. (See: reasonable doubt, moral certainty, conviction)

 Clear and convincing proof                                                                              

A standard applied by a jury or by a judge in a nonjury trial to measure the probability of the truthfulness of particular facts alleged during a civil lawsuit.

Clear and convincing proof means that the evidence presented by a party during the trial is more highly probable to be true than not and the jury or judge has a firm belief or conviction in it. A greater degree of believability must be met than the common standard of proof in civil actions, preponderance of the evidence, which requires that the facts more likely than not prove the issue for which they are asserted.

The standard of clear and convincing proof—also known as "clear and convincing evidence"; "clear, convincing, and satisfactory"; "clear, cognizant, and convincing"; and "clear, unequivocal, satisfactory, and convincing"—is applied only in particular cases, primarily those involving an equitable remedy, such as reformation of a deed or contract for mistake.

Due Process                                                                                              

A fundamental, constitutional guarantee that all legal proceedings will be fair and that one will be given notice of the proceedings and an opportunity to be heard before the government acts to take away one's life, liberty, or property. Also, a constitutional guarantee that a law shall not be unreasonable, Arbitrary, or capricious.

The constitutional guarantee of due process of law, found in the Fifth and Fourteenth Amendments to the U.S. Constitution, prohibits all levels of government from arbitrarily or unfairly depriving individuals of their basic constitutional rights to life, liberty, and property. The due process clause of the Fifth Amendment, ratified in 1791, asserts that no person shall "be deprived of life, liberty, or property, without due process of law." This amendment restricts the powers of the federal government and applies only to actions by it. The Due Process Clause of the Fourteenth Amendment, ratified in 1868, declares,"[N]or shall any State deprive any person of life, liberty, or property, without due process of law" (§ 1). This clause limits the powers of the states, rather than those of the federal government.

The Due Process Clause of the Fourteenth Amendment has also been interpreted by the U.S. Supreme Court in the twentieth century to incorporate protections of the Bill of Rights, so that those protections apply to the states as well as to the federal government. Thus, the Due Process Clause serves as the means whereby the Bill of Rights has become binding on state governments as well as on the federal government.

The concept of due process originated in English Common Law. The rule that individuals shall not be deprived of life, liberty, or property without notice and an opportunity to defend themselves predates written constitutions and was widely accepted in England. The Magna Charta, an agreement signed in 1215 that defined the rights of English subjects against the king, is an early example of a constitutional guarantee of due process. That document includes a clause that declares, "No free man shall be seized, or imprisoned … except by the lawful judgment of his peers, or by the law of the land" (ch. 39). This concept of the law of the land was later transformed into the phrase "due process of law." By the seventeenth century, England's North American colonies were using the phrase "due process of law" in their statutes.

The application of constitutional due process is traditionally divided into the two categories of Substantive Due Process and procedural due process. These categories are derived from a distinction that is made between two types of law. Substantive Law creates, defines, and regulates rights, whereas procedural law enforces those rights or seeks redress for their violation. Thus, in the United States, substantive due process is concerned with such issues as Freedom of Speech and privacy, whereas procedural due process is concerned with provisions such as the right to adequate notice of a lawsuit, the right to be present during testimony, and the right to an attorney.

Substantive Due Process

The modern notion of substantive due process emerged in decisions of the U.S. Supreme Court during the late nineteenth century. In the 1897 case of Allgeyer v. Louisiana, 165 U.S. 578, 17 S. Ct. 427, 41 L. Ed. 832, the Court for the first time used the substantive due process framework to strike down a state statute. Before that time, the Court generally had used the Commerce Clause or the Contracts Clause of the Constitution to invalidate state legislation. The Allgeyer case concerned a Louisiana law that proscribed the entry into certain contracts with insurance firms in other states. The Court found that the law unfairly abridged the right to enter into lawful contracts, as guaranteed by the Due Process Clause of the Fourteenth Amendment.

The next 40 years after Allgeyer were the heyday of what has been called the freedom-of-contract version of substantive due process. During those years, the Court often used the Due Process Clause of the Fourteenth Amendment to void state regulation of private industry, particularly regarding terms of employment such as maximum working hours or minimum wages. In one famous case from that era, lochner v. new york, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 (1905), the Court struck down a New York law (N.Y. Laws 1897, chap. 415, art. 8, § 110) that prohibited employers from allowing workers in bakeries to be on the job more than ten hours per day and 60 hours per week. The Court found that the law was not a valid exercise of the state's Police Power. It wrote that it could find no connection between the number of hours worked and the quality of the baked goods, thus finding that the law was arbitrary.

In Allgeyer and Lochner and in other cases like them, the Court did not find that state legislatures had failed to enact their laws using the proper procedures—which would present an issue of procedural due process. Instead, it found that the laws themselves violated certain economic freedoms that inhered in the Due Process Clause, specifically its protection of liberty and what the Court described as freedom or liberty of contract. This freedom meant that individuals had the right to purchase or to sell labor or products without unreasonable interference by the government.

This interpretation of the Due Process Clause put the Court in direct opposition to many of the reforms and regulations passed by state legislatures during the Progressive Era of the early twentieth century. Justices who were opposed to the Court's position in such cases, including oliver wendell holmes jr.john m. harlan, saw such rulings as unwarranted judicial activism in support of a particular free-market ideology. and

During the 1930s, the Court used the doctrine of substantive due process to strike down federal legislation as well, particularly legislation associated with President franklin d. roosevelt's New Deal. In 1937, Roosevelt proposed a court-packing scheme in which Roosevelt would have sought to overcome Court opposition to his programs by appointing additional justices. Although the plan was never adopted, the Court quickly changed its position on substantive due process and other issues and began to uphold New Deal legislation. Now, a majority on the Court, including Chief Justice charles e. hughes and Justice benjamin n. cardozo, abandoned the freedom-of-contract version of substantive due process.

Even before the Court abandoned the freedom-of-contract approach to substantive due process, it began to explore using the Due Process Clause of the Fourteenth Amendment to re-evaluate state laws and actions affecting civil freedoms protected by the Bill of Rights. Since the 1833 case of barron v. baltimore, 32 U.S. (7 Pet.) 243, 8 L. Ed. 672, the Court had interpreted the Bill of Rights as applying only to the federal government. Beginning in the 1920s, however, it began to apply the Bill of Rights to the states through the incorporation of those rights into the Due Process Clause of the Fourteenth Amendment. In gitlow v. new york, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138 (1925), the Court ruled that the liberty guarantee of the Fourteenth Amendment's Due Process Clause protects First Amendment free speech from State Action. In near v. minnesota, 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931), the Court found that Freedom of the Press was also protected from state action by the Due Process Clause, and it ruled the same with regard to freedom of religion in Cantwell v. Connecticut, 310 U.S. 296, 60 S. Ct. 900, 84 L. Ed. 1213 (1940).

Because incorporation has proceeded gradually, with some elements of the Bill of Rights still unincorporated, it has also been called selective incorporation. Nevertheless, during the twentieth century, most of the provisions of the Bill of Rights were incorporated by the Due Process Clause of the Fourteenth Amendment, thereby protecting individuals from arbitrary actions by state as well as federal governments.

By the 1960s, the Court had extended its interpretation of substantive due process to include rights and freedoms that are not specifically mentioned in the Constitution but that, according to the Court, extend or derive from existing rights. These rights and freedoms include the freedoms of association and nonassociation, which have been inferred from the First Amendment's freedom-of-speech provision, and the right to privacy. The right to privacy, which has been derived from the First, Fourth, and Ninth Amendments, has been an especially controversial aspect of substantive due process. First established in griswold v. connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), the Court later used it to protect a woman's decision to have an Abortionroe v. wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 [1973]). free from state interference, in the first trimester of pregnancy (

In several recent decisions, the U.S. Supreme Court has considered the application of substantive due process in light of actions taken by law enforcement officers. It often has determined that police actions have not violated a defendant's due process rights. In County of Sacramento v. Lewis, 523 U.S. 833, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998), for example, the Court determined that high-speed chases by police officers did not violate the due process rights of the suspects whom the officers were chasing. In that case, two police officers had engaged in a pursuit of two young suspects at speeds of more than 100 miles per hour through a residential neighborhood. One of the young men died, while the other suffered serious injuries. A unanimous Court held that the officers' decision to engage in the pursuit had not amounted to "governmental arbitrariness" that the Due Process Clause protects due to the nature of the judgment used by the officers in such a circumstance.

The Court in City of West Covina v. Perkins, 525 U.S. 234, 119 S. Ct. 678, 142 L. Ed. 2d 636 (1999) again held in favor of law enforcement officers in a claim that police had violated the plaintiff's due process rights. After seizing Personal Property, including cash savings, of two owners of a home they had searched during a murder investigation, the police retained the property at the police station. When the homeowners sought to have the property returned, the police failed to provide the homeowners with detailed information about how the owners

could have their property returned. The homeowners then filed a 42 U.S.C.A. § 1983 action against the police, claiming deprivation of Civil Rights under the Due Process Clause. The Supreme Court held that because information about the proper procedures to retrieve this property under state law was readily available to the plaintiffs, the police had not deprived the homeowners of their due process rights.

The U.S. Supreme Court is more likely to find due process violations where the actions of a government official are clearly arbitrary. In City of Chicago v. Morales, 527 U.S. 41, 119 S. Ct. 1849, 144 L. Ed. 2d 67 (1999), for example, it struck down a Chicago anti-gang ordinance as unconstitutional on due process grounds. The ordinance allowed police officers to break up any group of two or more persons whom they believed to be loitering in a public place, provided that the officer also believed that at least one member of the group was a gang member. The ordinance had led to more than 43,000 arrests. Because the ordinance did not draw the line between innocent and guilty behavior and failed to give guidance to police on the matter, the ordinance violated the due process rights of the subjects of these break-ups. The Court held that since the ordinance gave absolute discretion to the police officers to determine what actions violated the ordinance, it was an arbitrary restriction on personal liberty in violation of the Due Process Clause.

In 2002, the Court found that arbitrary actions by a trial judge in a murder case violated the due process rights of the defendant (Lee v. Kemna, 534 U.S. 362, 122 S. Ct. 877, 151 L. Ed. 820 [2002]). In that case, the defendant was charged with first-degree murder for driving the getaway car for a man who had pled guilty to a murder charge in Kansas City, Missouri. The defendant claimed that he had been in California at the time of the murder, and four family members were to testify at trial that the defendant was not in Kansas City at the time of the murder. However, the family members left before they were expected to testify, and the defense could not locate them. The defense asked the court for a short Continuance of one or two days, but the judge refused due to personal conflicts and a conflict with another trial. Without the testimony of the family members, the defendant was convicted of murder. The high court held that the judge's arbitrary actions violated the defendant's due process rights, and it vacated the defendant's conviction.

Procedural Due Process

The phrase "procedural due process" refers to the aspects of the Due Process Clause that apply to the procedure of arresting and trying persons who have been accused of crimes and to any other government action that deprives an individual of life, liberty, or property. Procedural due process limits the exercise of power by the state and federal governments by requiring that they follow certain procedures in criminal and civil matters. In cases where an individual has claimed a violation of due process rights, courts must determine whether a citizen is being deprived of "life, liberty, or property," and what procedural protections are "due" to that individual.

The Bill of Rights contains provisions that are central to procedural due process. These protections give a person a number of rights and freedoms in criminal proceedings, including freedom from unreasonable searches and seizures; freedom from Double Jeopardy, or being tried more than once for the same crime; freedom from Self-Incrimination, or testifying against oneself; the right to a speedy and public trial by an impartial jury; the right to be told of the crime being charged; the right to cross-examine witnesses; the right to be represented by an attorney; freedom from Cruel and Unusual Punishment; and the right to demand that the state prove any charges Beyond a Reasonable Doubt. In a series of U.S. Supreme Court cases during the twentieth century, all of these rights were applied to state proceedings. In one such case, gideon v. wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), the Court ruled that the Due Process Clause of the Fourteenth Amendment incorporates the Sixth Amendment right to have an attorney in "all criminal prosecutions," including prosecutions by a state. The case proved to be a watershed in establishing indigents' rights to legal counsel.

Procedural due process also protects individuals from government actions in the civil, as opposed to criminal, sphere. These protections have been extended to include not only land and personal property, but also entitlements, including government-provided benefits, licenses, and positions. Thus, for example, the Court has ruled that the federal government must hold hearings before terminating Welfare benefits (Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 [1970]). Court decisions regarding procedural due process have exerted a great deal of influence over government procedures in prisons, schools, Social Security, civil suits, and public employment.

The U.S. Supreme Court in Lujan v. G&G Firesprinklers, Inc., 532 U.S. 189, 121 S. Ct. 1446, 149 L. Ed. 2d 391 (2000) held that a state is not required to hold a hearing before withholding money and imposing penalties on a building contractor. The California Division of Labor & Standards Enforcement determined that a building subcontractor had failed to pay the prevailing wage to workers who installed fire sprinklers in state buildings. The California agency, without providing notice or a hearing, fined the general contractor, which in turn withheld money from the subcontractor. The sub-contractor, G&G Firesprinklers, Inc., sued the California agency, claiming that the agency had violated the company's procedural due process rights. The Court disagreed, holding that because the company could sue the agency for breach of contract, the fine did not constitute a due process violation.

  

The privilege against self-incrimination                                                                 

The privilege against self-incrimination forbids the government from compelling any person to give testimonial evidence that would likely incriminate him or her during a subsequent criminal case. This right enables a defendant to refuse to testify at a criminal trial and, according to the U.S. Supreme Court, "privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings." Lefkowitz v. Turley, 414 U.S. 70, 94 S. Ct. 316, 38 L. Ed. 2d 274 (1973).

Confessions, admissions, and other statements taken from defendants in violation of this right are inadmissible against them during a criminal prosecution. Convictions based on statements taken in violation of the right against Self-Incrimination normally are overturned on appeal, unless sufficient admissible evidence is available to support the verdict. The right against self-incrimination may only be asserted by persons and does not protect artificial entities such as corporations. Doe v. United States, 487 U.S. 201, 108 S. Ct. 2341, 101 L. Ed. 2d 184 (1988).

Witness Privilege

A witness may refuse to answer questions or give documentary evidence only if the answer or document would incriminate the witness. An answer is considered self-incriminating if it would lead to criminal liability in any jurisdiction. The answer need only furnish a link in the chain of Circumstantial Evidence necessary for a conviction Blau v. United States, 340 U.S. 159, 71 S. Ct. 223, 95 L. Ed. 170 (1950). The answer does not have to be one that would be admissible as evidence in a criminal trial.

The privilege does not allow a witness to refuse to answer a question because the response may expose the witness to civil liability, social disgrace, loss of status, or loss of private employment. A witness may not claim the privilege on the grounds that an answer or document may incriminate a third party: it may be declared only by the witness for the witness.

In some criminal cases, a prosecutor may grant to a witness Immunity from prosecution. This immunity comes in two forms: transactional and testimonial. Transactional immunity gives the witness immunity from prosecution for the criminal acts to which the witness refers in his or her statements. Testimonial immunity merely prevents the prosecution from using the statements the witness makes in a subsequent prosecution of the witness. Prosecutors have the right to grant only testimonial immunity and thereby force witnesses to testify. If the witness refuses to testify after being given testimonial immunity, he or she could be jailed for Contempt of court. Furthermore, if a witness with testimonial immunity testifies falsely, the false statements may be used against the witness in a subsequent prosecution for perjury.

By contrast, if police or prosecutors summon a witness to produce self-incriminating documents, the witness may claim the privilege because a summons to produce documents is similar to a demand for testimony. Curcio v. United States, 354 U.S. 118, 77 S. Ct. 1145, 1 L. Ed. 2d 1225 (1952). However, police and prosecutors may force a witness to relinquish self-incriminating documents if the records pertain to a regulated public matter, such as price records kept by businesses under price regulation statutes.

Criminal Defendant Privilege

In Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the Supreme Court extended the right to remain silent to pretrial custodial interrogations. The Court held that before a suspect is questioned, the police must apprise the suspect of his or her right to remain silent and that if he or she gives up this right, any statements may be used against the suspect in a subsequent criminal prosecution. Under Miranda, suspects also have a Fifth Amendment right to consult an attorney before they submit to questioning. Miranda applies to any situation in which a person is both held in custody by the police, which means that he or she is not free to leave, and is being interrogated, which means he or she is being asked questions that are designed to elicit an incriminating response. A person need not be arrested or formally charged for Miranda to apply.

Miranda has been scrutinized by law enforcement personnel and others since it was first decided. In 1968, Congress enacted a law, codified at 18 U.S.C.A. § 3501, that restored voluntariness as a test for admitting confessions in a federal court. The u.s. justice department, however, under attorneys general of both major political parties, refused to enforce the provision, believing it to be unconstitutional. The Supreme Court, in Dickerson v. United States, 30 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000), ruled that this law could not revoke Miranda because the 1966 decision had been made on constitutional grounds.

For criminal defendants, the privilege against self-incrimination includes the right to refuse to testify at trial. A defendant may testify at a Preliminary Hearing on the admissibility of evidence without waiving the right to not testify at trial. Incriminating statements made by a defendant in a preliminary hearing are not admissible at trial, and the prosecutor may not comment on them.

The Court has held that the privilege is not compromised by laws that require persons to surrender identification to law enforcement personnel. California v. Byers, 402 U.S. 424, 91 S. Ct. 1535, 29 L. Ed. 2d 9 (1971). A person who is suspected of a crime may be compelled to testify before a Grand Jury, a legislative body, or an administrative board. The person must appear and answer questions, but he may claim the privilege against self-incrimination when necessary.


Search and seizure

A hunt by law enforcement officials for property or communications believed to be evidence of crime, and the act of taking possession of this property.In International Law, the right of ships of war, as regulated by treaties, to examine a merchant vessel during war in order to determine whether the ship or its cargo is liable to seizure.

Overview

Search and seizure is a necessary exercise in the ongoing pursuit of criminals. Searches and seizures are used to produce evidence for the prosecution of alleged criminals. The police have the power to search and seize, but individuals are protected against Arbitrary, unreasonable police intrusions. Freedom from unrestricted search warrants was critical to American colonists.

Under England's rule, many searches were unlimited in scope and conducted without justification. Customs officials could enter the homes of colonists at will to search for violations of customs and trade laws, and suspicionless searches were carried out against outspoken political activists. Searches in the colonies came to represent governmental oppression.

To guard against arbitrary police intrusions, the newly formed United States in 1791 ratified the U.S. Constitution's Fourth Amendment, which states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon Probable Cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

State Action

Law enforcement officers are entrusted with the power to conduct investigations, make arrests, perform searches and seizures of persons and their belongings, and occasionally use lethal force in the line of duty. But this power must be exercised within the boundaries of the law, and when police officers exceed those boundaries they jeopardize the admissibility of any evidence collected for prosecution. By and large, the Fourth Amendment and the case law interpreting it establish these boundaries.

The safeguards enumerated by the Fourth Amendment only apply against State Action, namely action taken by a governmental official or at the direction of a governmental official. Thus, actions taken by state or federal law enforcement officials or private persons working with law enforcement officials will be subject to the strictures of the Fourth Amendment. Bugging, Wiretapping, and other related snooping activity performed by purely private citizens, such as private investigators, do not receive Fourth Amendment scrutiny.

Reasonable Expectation of Privacy

Individuals receive no Fourth Amendment protection unless they can demonstrate that they have a reasonable expectation of privacy in the place that was searched or the property that was seized. The U.S. Supreme Court explained that what "a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection…. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1976). In general the Court has said that individuals enjoy a reasonable expectation of privacy in their own bodies, Personal Property, homes, and business offices. Individuals also enjoy a qualified expectation of privacy in their automobiles.

Individuals ordinarily possess no reasonable expectation of privacy in things like bank records, vehicle location and vehicle paint, garbage left at roadside for collection, handwriting, the smell of luggage, land visible from a public place, and other places and things visible in plain or open view. Houseguests typically do not possess a reasonable expectation of privacy in the homes they are visiting, especially when they do not stay overnight and their sole purpose for being inside the house is to participate in criminal activity such as a drug transaction. Minnesota v. Carter, 525 U.S. 83, 119 S. Ct. 469, 142 L. Ed. 2d 373 (1998). Similarly, a defendant showing only that he was a passenger in a searched car has not shown an expectation of privacy in the car or its contents. Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978). Both the houseguest and the motor vehicle passenger must assert a property or possessory interest in the home or motor vehicle before a court will recognize any Fourth Amendment privacy interests such that would prevent a police officer from searching those places without first obtaining a warrant.

Probable Cause and Reasonable Suspicion

Once it has been established that an individual possesses a reasonable expectation of privacy in a place to be searched or a thing to be seized, the Fourth Amendment's protections take hold, and the question then becomes what are the nature of those protections. Police officers need no justification to stop someone on a public street and ask questions, and individuals are completely entitled to refuse to answer any such questions and go about their business. However, a police officer may only search people and places when the officer has probable cause or reasonable suspicion to suspect criminal activity.

"Probable cause" means that the officer must possess sufficiently trustworthy facts to believe that a crime has been committed. In some cases, an officer may need only a reasonable suspicion of criminal activity to conduct a limited search. Reasonable suspicion means that the officer has sufficient knowledge to believe that criminal activity is at hand. This level of knowledge is less than that of probable cause, so reasonable suspicion is usually used to justify a brief frisk in a public area or a traffic stop at roadside. To possess either probable cause or reasonable suspicion, an officer must be able to cite specific articulable facts to warrant the intrusion. Items related to suspected criminal activity found in a search may be taken, or seized, by the officer.

Arrest and Miranda

Under the Fourth Amendment, a seizure refers to the collection of evidence by law enforcement officials and to the arrest of persons. An arrest occurs when a police officer takes a person against his or her will for questioning or criminal prosecution. The general rule is that to make an arrest, the police must obtain an arrest warrant. However, if an officer has probable cause to believe that a crime has been committed and there is no time to obtain a warrant, the officer may make a warrantless arrest. Also, an officer may make a warrantless arrest of persons who commit a crime in the officer's presence. An invalid arrest is not generally a defense to prosecution. However, if an arrest is unsupported by probable cause, evidence obtained pursuant to the invalid arrest may be excluded from trial.

When an arrest is made, the arresting officer must read the Miranda warnings to the arrestee. The Miranda warnings apprise an arrestee of the right to obtain counsel and the right to remain silent. If these warnings are not read to an arrestee as soon as he or she is taken into custody, any statements the arrestee makes after the arrest may be excluded from trial.

Legal commentators have criticized Miranda and its subsequent line of decisions, stating that criminal suspects seldom truly understand the meaning or importance of the rights recited to them. Studies have indicated that the Miranda decision has had little effect on the numbers of confessions and requests for lawyers made by suspects in custody. Moreover, critics of Miranda cite concerns that the police may fabricate waivers, since a suspect's waiver of Miranda rights need not be recorded or made to a neutral party. Defenders of Miranda argue that it protects criminal suspects and reduces needless litigation by providing the police with concrete guidelines for permissible interrogation.

In 1999 the U.S. Court of Appeals for the Fourth Circuit fueled long-standing speculation that Miranda would be overruled when it held that the admissibility of confessions in federal court is governed not by Miranda, but by a federal statute enacted two years after Miranda. The statute, 18 U.S.C.A. § 3501, provides that a confession is admissible if voluntarily given. Congress enacted the statute to overturn Miranda, the Fourth Circuit said, and Congress had the authority to do so pursuant to its authority to overrule judicially created rules of evidence that are not mandated by the Constitution. U.S. v. Dickerson, 166 F.3d 667 (4th Cir. 1999).

The U.S. Supreme Court reversed. In an opinion authored by Chief Justice william rehnquist, the Court said that, whether or not it agreed with Miranda, the principles of Stare Decisis weighed heavily against overruling it. While the Supreme Court has overruled its precedents when subsequent cases have undermined their doctrinal underpinnings, that has not happened to the Miranda decision, which the Court said "has become embedded in routine police practice to the point where the warnings have become part of our national culture." Although the Court acknowledged that a few guilty defendants may sometimes go free as the result of the application of the Miranda rule, "experience suggests that the totality-of-the-circumstances test [that] § 3501 seeks to revive is more difficult than Miranda for law enforcement officers to conform to and for courts to apply in a consistent manner." Dickerson v. United States, 530 U.S. 428, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000).

The Search Warrant Requirement

A Search Warrant is a judicially approved document that authorizes law enforcement officials to search a particular place. To obtain a search warrant, a police officer must provide an account of information supporting probable cause to believe that evidence of a crime will be found in a particular place or places. The officer must also make a list of the particular places to be searched and the items sought. Finally, the officer must swear to the truthfulness of the information. The officer presents the information in an Affidavit to a magistrate or judge, who determines whether to approve the warrant.

An officer may search only the places where items identified in the search warrant may be found. For example, if the only item sought is a snowmobile, the officer may not rummage through desk drawers. Only the items listed in the warrant may be seized, unless other evidence of illegal activity is in plain view. Judges or magistrates may approve a variety of types of searches. The removal of blood from a person's body, a search of body cavities, and even surgery may be approved for the gathering of evidence. Electronic Surveillance and phone records may also be used to gather evidence upon the issuance of a warrant.

A warrant is not required for a search incident to a lawful arrest, the seizure of items in plain view, a border search, a search effected in open fields, a vehicle search (except for the trunk), an inventory search of an impounded vehicle, and any search necessitated by exigent circumstances. It is also not required for a Stop and Frisk, a limited search for weapons based on a reasonable suspicion that the subject has committed or is committing a crime. A police officer may also conduct a warrantless search if the subject consents.

Exceptions to Warrant Requirement

Administrative agencies may conduct warrantless searches of highly regulated industries, such as strip mining and food service. Federal and state statutes authorize warrantless, random drug testing of persons in sensitive positions, such as air traffic controllers, drug interdiction officers, railroad employees, and customs officials. In each of these types of searches, the Supreme Court has ruled that the need for public safety outweighs the countervailing privacy interests that would normally require a search warrant. However, a few lower federal courts have ruled that warrantless searches of public housing projects are unconstitutional, not withstanding the fact that residents of the public housings projects signed petitions supporting warrantless searches to rid their communities of drugs and weapons.

Nor may states pass a law requiring candidates for state political office to certify that they have taken a drug test and that the test result was negative without violating the Fourth Amendment's warrant requirement. In Chandler v. Miller, 520 U.S. 305, 117 S.Ct. 1295, 137 L.Ed.2d 513 (U.S. 1997), the state of Georgia failed to show a special need that was important enough to justify such drug testing and override the candidate's countervailing privacy interests, the Court said. Moreover, the Court found, the certification requirement was not well designed to identify candidates who violate anti-drug laws and was not a credible means to deter illicit drug users from seeking state office, since the Georgia law allowed the candidates to select the test date, and all but the prohibitively addicted could abstain from using drugs for a pretest period sufficient to avoid detection.

The Supreme Court has given law enforcement mixed signals over the constitutionality of warrantless motor vehicle checkpoints. The Court approved warrantless, suspicionless searches at roadside sobriety checkpoints. These searches must be carried out in some neutral, articulable way, such as by stopping every fifth car. However, a highway checkpoint program whose primary purpose is the discovery and interdiction of illegal narcotics violates the Fourth Amendment. In distinguishing between sobriety and drug interdiction checkpoints, the Court said that the sobriety checkpoints under review were designed to ensure roadway safety, while the primary purpose of the narcotics checkpoint under review had been to uncover evidence of ordinary criminal wrongdoing, and, as such, the program contravened the Fourth Amendment. City of Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 148 L.Ed.2d 333 (U.S. 2000).

Warrant exceptions have been carved out by courts because requiring a warrant in certain situations would unnecessarily hamper law enforcement. For example, it makes little sense to require an officer to obtain a search warrant to seize contraband that is in plain view. Under the Fourth Amendment's reasonableness requirement, the appropriateness of every warrantless search is decided on a case-by-case basis, weighing the defendant's privacy interests against the reasonable needs of law enforcement under the circumstances.

The Exclusionary Rule and the Fruit of the Poisonous Tree Doctrine

A criminal defendant's claim of unreasonable search and seizure is usually heard in a suppression hearing before the presiding trial judge. This hearing is conducted before trial to determine what evidence will be suppressed, or excluded, from trial. When a judge deems a search unreasonable, he or she frequently applies the Exclusionary Rule.

For the entire nineteenth century, a Fourth Amendment violation had little consequence. Evidence seized by law enforcement from a warrantless or otherwise unreasonable search was admissible at trial if the judge found it reliable. This made the Fourth Amendment essentially meaningless to criminal defendants. But in 1914, the U.S. Supreme Court devised a way to enforce the Fourth Amendment. In Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652 (1914), a federal agent conducted a warrantless search for evidence of gambling at the home of Fremont Weeks. The evidence seized in the search was used at trial, and Weeks was convicted. On appeal, the Supreme Court held that the Fourth Amendment barred the use of evidence secured through a warrantless search and seizure. Weeks's conviction was reversed and thus was born the exclusionary rule.

The exclusionary rule is a judicially created remedy used to deter police misconduct in obtaining evidence. Under the exclusionary rule, a judge may exclude incriminating evidence from a criminal trial if there was police misconduct in obtaining the evidence. Without the evidence, the prosecutor may lose the case or drop the charges for lack of proof. This rule provides some substantive protection against illegal search and seizure.

The exclusionary rule was constitutionally required only in federal court until mapp v. ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). In Mapp,due process clause of the Fourteenth Amendment. Before the Mapp ruling, not all states excluded evidence obtained in violation of the Fourth Amendment. After Mapp, a defendant's claim of unreasonable search and seizure became commonplace in criminal prosecutions. the Court held that the exclusionary rule applied to state criminal proceedings through the

The application of the exclusionary rule has been significantly limited by a Good Faith exception created by the Supreme Court in United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). Under the good faith exception, evidence obtained in violation of a person's Fourth Amendment rights will not be excluded from trial if the law enforcement officer, though mistaken, acts reasonably. For example, if an officer reasonably conducts a search relying on information that is later proved to be false, any evidence seized in the search will not be excluded if the officer acted in good faith, with a reasonable reliance on the information. The Supreme Court has carved out this exception to the exclusionary rule because, according to a majority of the court, the rule was designed to deter police misconduct, and excluding evidence when the police did not misbehave would not deter police misconduct.

A companion to the exclusionary rule is the Fruit of the Poisonous Tree doctrine, established by the Supreme Court in Nardone v. United States, 308 U.S. 338, 60 S. Ct. 266, 84 L. Ed. 307 (1939). Under this doctrine, a court may exclude from trial any evidence derived from the results of an illegal search. For example, assume that an illegal search has garnered evidence of illegal explosives. This evidence is then used to obtain a warrant to search the suspect's home. The exclusionary rule excludes the evidence initially used to obtain the search warrant, and the fruit of the poisonous tree doctrine excludes any evidence obtained in a search of the home.

The Knock and Announce Requirement

The Fourth Amendment incorporates the Common Law requirement that police officers entering a dwelling must knock on the door and announce their identity and purpose before attempting forcible entry. At the same time, the Supreme Court has recognized that the "flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests." Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995). Instead, the Court left to the lower courts the task of determining the circumstances under which an unannounced entry is reasonable under the Fourth Amendment.

The Wisconsin Supreme Court concluded that police officers are never required to knock and announce their presence when executing a search warrant in a felony drug investigation. But the U.S. Supreme Court overturned the state high court's decision in Richards v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615 (U.S. 1997). In Richards the Court said Fourth Amendment does not permit a blanket exception to the knock-and-announce requirement for the execution of a search warrant in a felony drug investigation. The fact that felony drug investigations may frequently present circumstances warranting a no-knock entry, the Court said, cannot remove from the neutral scrutiny of a reviewing court the reasonableness of the police decision not to knock and announce in a particular case. Rather, it is the duty of a court to determine whether the facts and circumstances of the particular entry justified dispensing with the knock-and-announce requirement. To justify a no-knock entry, the Court stressed that police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.

The Fourth Amendment does not hold police officers to a higher standard when a no-knock entry results in the destruction of property. U.S. v. Ramirez, 523 U.S. 65, 118 S.Ct. 992, 140 L.Ed.2d 191 (U.S. 1998). The "reasonable suspicion" standard is still applicable. No Fourth Amendment violation occurred when, the Supreme Court found, during the execution of a "no-knock" warrant to enter and search a home, police officers broke a single window in a garage and pointed a gun through the opening. A reliable confidential informant had notified the police that an escaped prisoner might be inside the home, and an officer had confirmed that possibility, the Court said. The escapee had a violent past and reportedly had access to a large supply of weapons, and the police broke the window to discourage any occupant of the house from rushing to weapons. However, excessive or unnecessary destruction of property in the course of a search may violate the Fourth Amendment, the court emphasized, even though the entry itself is lawful and the fruits of the search are not subject to suppression.

 

Personal property

Everything that is the subject of ownership that does not come under the denomination of real property; any right or interest that an individual has in movable things.Personal property can be divided into two major categories: (1) corporeal personal property, including such items as animals, merchandise, and jewelry; and (2) incorporeal personal property, comprised of such rights as stocks, bonds, Patents, and copyrights.

Possession

Possession is a property interest under which an individual is able to exercise power over something to the exclusion of all others. It is a basic property right that entitles the possessor to (1) the right to continue peaceful possession against everyone except someone having a superior right; (2) the right to recover a chattel that has been wrongfully taken; and (3) the right to recover damages against wrongdoers.

Possession requires a degree of actual control over the object, coupled with the intent to possess and exclude others. The law recognizes two basic types of possession: actual and constructive.

Actual possession exists when an individual knowingly has direct physical control over an object at a given time. For example, an individual wearing a particular piece of valuable jewelry has actual possession of it. Constructive possession is the power and intent of an individual to control a particular item, even though it is not physically in that person's control. For example, an individual who has the key to a bank safe deposit box, which contains a valuable piece of jewelry that she owns, is said to be in constructive possession of the jewelry.

Possession of Animals

Animals ferae naturae, or wild animals, are those that cannot be completely domesticated. A degree of force or skill is necessary to maintain control over them. Gaining possession is a means of obtaining title to, or ownership of, wild animals.

Generally an owner of land has the right to capture or kill a wild animal on her property and upon doing so, the animal is regarded as belonging to that individual because she owns the soil. The traditional legal principle has been that one who tames a wild animal is regarded as its owner provided it appears to exhibit animus revertendi, or the intent to return to the owner's domicile. Conversely when a captured wild animal escapes and returns to its natural habitat without any apparent intent to return to the captor's domicile, the captor forfeits all personal property right and the animal may be captured by anyone.

Lost, Mislaid, and Abandoned Property

Personal property is considered to be lost if the owner has involuntarily parted with it and is ignorant of its location. Mislaid property is that which an owner intentionally places somewhere with the idea that he will eventually be able to find it again but subsequently forgets where it has been placed. Abandoned property is that to which the owner has intentionally relinquished all rights.

Lost or mislaid property continues to be owned by the person who lost or mislaid it. When one finds lost goods, the finder is entitled to possession against everyone with the exception of the true owner.

The finder of lost articles on land belonging to someone else is entitled to possession against everyone but the true owner, unless the finder is guilty of Trespass. The finder of misplaced goods has no right to their possession. The owner of the place where an article is mislaid has a right to the article against everyone but the true owner. Abandoned property can be possessed and owned by the first person who exercises dominion over it with an intent to claim it as his or her own. In any event, between the finder of a lost, mislaid, or abandoned article and the owner of the place where it is found, the law applies to whatever rule will most likely result in the return of the article to its rightful owner.

Ordinarily when articles are found by an employee during and within the scope of his employment, they are awarded to the employer rather than to the employee-finder.

Treasure trove is any gold or silver in coin, plate, or bullion that is hidden by an unknown owner in the earth or other private place for an extended period. The property is not considered treasure trove unless the identity of the owner cannot be ascertained. Under early Common Law, the finder of a treasure trove took title to it against everyone but the true owner. This doctrine was altered in England by a statute granting title to the crown subject to the claims of the true owner. The U.S. law governing treasure trove has, for the most part, been merged into the law governing lost property. However, certain cases have held that the old treasure trove law has not been combined into the lost property statutes. In some instances, the early common law of England has been held to apply in the absence of a statute governing treasure trove. Regardless of which principles are applied, however, in the absence of contrary statutory provision, the title to treasure trove belongs to the finder against all others with the exception of the true owner. If there is a controversy as to ownership between the true owner and the state, the owner is entitled to treasure trove.

Confusion and Accession

Confusion and Accession govern the acquisition of, or loss of title to, personal property by virtue of its being blended with, altered by, improved by, or commingled with the property of others. In confusion, the personal property of several different owners is commingled so that it cannot be separated and returned to its rightful owners, but the property retains its original characteristics. Any fungible (interchangeable) goods can be the subject of confusion.

In accession, the personal property of one owner is physically integrated with the property of another so that it becomes a constituent part of it, losing any separate identity. Accession can make the personal property of one owner become a substantially more valuable chattel as a result of the work of another person. This transformation occurs when the personal property becomes an entirely new chattel, such as when grapes are made into wine or timber is made into furniture.

Subject to the doctrine of accession, personal property can become real property through its transformation into a fixture. A fixture is a movable item that was originally personalty (personal property) but which has become attached to, and associated with, the land and is, therefore, considered a part of the real property.

Bailments

A Bailment is the rightful, temporary possession of goods by an individual other than the true owner. The individual who entrusts his property into the hands of another is called the bailor; the person who holds such property is the bailee. Ordinarily a bailment is effected for a designated purpose upon which the parties have agreed.

The word bailment is derived from the French term bailler, "to deliver." It is ordinarily regarded as a contractual relationship since the bailor and bailee—either expressly or implicitly—bind themselves to act according to specific terms. The bailee receives only control or possession of the property, and the bailor retains the ownership interests therein. While a bailment exists, the bailee has an interest in the property that is superior to all others, including the bailor, unless she violates some term of the agreement. When the purpose for which the property has been delivered has been accomplished, the property will be returned to the bailor or otherwise disposed of, according to his instructions.

A bailment differs from a sale, which is an intentional transfer of ownership of personal property in exchange for something of value, because a bailment involves only a transfer of possession or custody not of ownership. For example, a bailment is created when a person leaves his or her car and car keys at a parking garage. The parking garage receives a fee to hold the car in its custody.

personalty n. movable assets (things, including animals) which are not real property, money, or investments. (See: personal property, real property)

Jurisprudence

From the Latin term juris prudentia, which means "the study, knowledge, or science of law"; in the United States, more broadly associated with the philosophy of law.Legal philosophy has many branches, with four types being the most common. The most prevalent form of jurisprudence seeks to analyze, explain, classify, and criticize entire bodies of law, ranging from contract to tort to Constitutional Law. Legal encyclopedias, law reviews, and law school textbooks frequently contain this type of jurisprudential scholarship.

The second type of jurisprudence compares and contrasts law with other fields of knowledge such as literature, economics, religion, and the social sciences. The purpose of this type of study is to enlighten each field of knowledge by sharing insights that have proven to be important in advancing essential features of the compared discipline.

The third type of jurisprudence raises fundamental questions about the law itself. These questions seek to reveal the historical, moral, and cultural underpinnings of a particular legal concept. The Common Law (1881), written by oliver wendell holmes jr., is a well-known example of this type of jurisprudence. It traces the evolution of civil and criminal responsibility from undeveloped societies where liability for injuries was based on subjective notions of revenge, to modern societies where liability is based on objective notions of reasonableness.

The fourth and fastest-growing body of jurisprudence focuses on even more abstract questions, including, What is law? How does a trial or appellate court judge decide a case? Is a judge similar to a mathematician or a scientist applying autonomous and determinate rules and principles? Or is a judge more like a legislator who simply decides a case in favor of the most politically preferable outcome? Must a judge base a decision only on the written rules and regulations that have been enacted by the government? Or may a judge also be influenced by unwritten principles derived from theology, moral philosophy, and historical practice?

Four schools of jurisprudence have attempted to answer these questions: formalism proposes that law is a science; realism holds that law is just another name for politics; Positivism suggests that law must be confined to the written rules and regulations enacted or recognized by the government; and naturalism maintains that the law must reflect eternal principles of justice and morality that exist independent of governmental recognition.

Modern U.S. legal thought began in 1870. In that year, Holmes, the father of the U.S. legal realist movement, wrote his first major essay for the American Law Review, and Christopher Columbus Langdell, the father of U.S. legal formalism, joined the faculty at Harvard Law School.

Formalism

Legal formalism, also known as conceptualism, treats law like a math or science. Formalists believe that in the same way a mathematician or scientist identifies the relevant axioms, applies them to given data, and systematically reaches a demonstrable theorem, a judge identifies the relevant legal principles, applies them to the facts of a case, and logically deduces a rule that will govern the outcome of a dispute. Judges derive relevant legal principles from various sources of legal authority, including state and federal constitutions, statutes, regulations, and case law.

For example, most states have enacted legislation that prohibits courts from probating a will that was not signed by two witnesses. If a court is presented with a number of wills to probate for the same estate, and only one of those wills has been witnessed by at least two persons, the court can quickly deduce the correct legal conclusion in a formalistic fashion: each will that has been signed by fewer than two witnesses will have no legal effect, and only the will executed in compliance with the statutory requirements may be probated.

Formalists also rely on inductive reasoning to settle legal disputes. Whereas deductive reasoning involves the application of general principles that will yield a specific rule when applied to the facts of a case, inductive reasoning starts with a number of specific rules and infers from them a broader legal principle that may be applied to comparable legal disputes in the future. griswold v. connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), provides an example. In Griswold, the Supreme Court ruled that although no express provision of the federal Constitution guarantees the right to privacy, and although no precedent had established such a right, an individual's right to privacy can be inferred from the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments and the cases interpreting them.

English jurist Sir Edward Coke was among the first to popularize the formalistic approach to law in Anglo-American history. Coke believed that the Common Law was "the peculiar science of judges." The common law, Coke said, represented the "artificial perfection of reason" obtained through "long study, observation, and experience." Coke also believed that only lawyers, judges, and others trained in the law could fully comprehend and apply this highest method of reasoning. The rest of society, including the king or queen of England, was not sufficiently learned to do so.

Langdell invigorated Coke's jurisprudence of artificial reason in the United States during the second half of the nineteenth century. Langdell compared the study of law to the study of science, and suggested that law school classrooms were the laboratories of jurisprudence. Judicial reasoning, Langdell believed, parallels the reasoning used in geometric proofs. He urged professors of law to classify and arrange legal principles much as a taxonomist organizes plant and animal life. Langdell articulated what has remained the orthodox school of thought in U.S. jurisprudence throughout the twentieth century.

Since the early 1970s, Professor ronald m. dworkin has been the foremost advocate of the formalist approach with some subtle variations. Although Dworkin stops short of explicitly comparing law to science and math, he maintains that law is best explained as a rational and cohesive system of principles that judges must apply with integrity. The principle of integrity requires that judges provide equal treatment to all litigants presenting legal claims that cannot honestly be distinguished. Application of this principle, Dworkin contends, will produce a "right answer" in all cases, even cases presenting knotty and polemical political questions.

Realism

The realist movement, which began in the late eighteenth century and gained force during the administration of President franklin d. roosevelt, was the first to attack formalism. Realists held a skeptical attitude toward Langdellian legal science. "The life of the law has not been logic, it has been experience," Holmes wrote in 1881.

Realists held two things to be true. First, they believed that law is not a scientific enterprise in which deductive reasoning can be applied to reach a determinate outcome in every case. Instead, most litigation presents hard questions that judges must resolve by Balancing the interests of the parties and ultimately drawing an Arbitrary line on one side of the dispute. This line is typically drawn in accordance with the political, economic, and psychological proclivities of the judge.

For example, when a court is asked to decide whether a harmful business activity is a common-law Nuisance, the judge must ascertain whether the particular activity is reasonable. The judge does not base this determination on a precise algebraic equation. Instead, the judge balances the competing economic and social interests of the parties, and rules in favor of the litigant with the most persuasive case. Realists would thus contend that judges who are ideologically inclined to foster business growth will authorize the continuation of a harmful activity, whereas judges who are ideologically inclined to protect the environment will not.

Second, realists believed that because judges decide cases based on their political affiliation, the law tends always to lag behind social change. For example, the realists of the late nineteenth century saw a dramatic rise in the disparity between the wealth and working conditions of rich and poor U.S. citizens following the industrial revolution. To protect society's poorest and weakest members, many states began drafting legislation that established a Minimum Wage and maximum working hours for various classes of exploited workers. This legislation was part of the U.S. Progressive movement, which reflected many of the realists' concerns.

The Supreme Court began striking down such laws as an unconstitutional interference with the freedom of contract guaranteed by the Fourteenth Amendment of the U.S. Constitution. U.S. realists claimed that the Supreme Court justices were simply using the freedom-of-contract doctrine to hide the real basis of their decision, which was their personal adherence to free-market principles and laissez-faire economics. The realists argued that the free-market system was not really free at all. They believed that the economic structure of the United States was based on coercive laws such as the employment-at-will doctrine, which permits an employer to discharge an employee for almost any reason. These laws, the realists asserted, promote the interests of the most powerful U.S. citizens, leaving the rest of society to fend for itself.

Some realists only sought to demonstrate that law is neither autonomous, apolitical, nor determinate. For example, jerome frank, who coined the term legal realism and later became a judge on the U.S. Court of Appeals for the Second Circuit, emphasized the psychological foundation of judicial decision making, arguing that a judge's decision may be influenced by mundane things like what he or she ate for breakfast. Frank believed that it is deceptive for the legal profession to perpetuate the myth that the law is clearly knowable or precisely predictable, when it is so plastic and mutable. karl llewellyn, another founder of the U.S. Legal Realism movement, similarly believed that the law is little more than putty in the hands of a judge who is able to shape the outcome of a case based on personal biases.

Since the mid-1960s, this theme has been echoed by the Critical Legal Studies movement, which has applied the skeptical insights of the realists to attack courts for rendering decisions based on racial, sexist, and homophobic prejudices. For example, feminist legal scholars have pilloried the Supreme Court's decision in Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976), for offering women less protection against governmental discrimination than is afforded members of other minority groups. Gay legal scholars similarly assailed the Supreme Court's decision in Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986), for failing to recognize a fundamental constitutional right to engage in homosexual Sodomy. The Supreme Court's 2003 decision in Lawrence v. Texas 539 U.S. ___, 123 S. Ct. 2472, 156 L. Ed. 2d 508, that overturned the Bowers holding was a vindication for gay rights jurisprudence.

Other realists, such as Roscoe Pound, were more interested in using the insights of their movement to reform the law. Pound was one of the original advocates of sociological jurisprudence in the United States. According to Pound, the aim of every law—whether constitutional, statutory, or case—should be to enhance the welfare of society. Jeremy Bentham, a legal philosopher in England, planted the seeds of sociological jurisprudence in the eighteenth century when he argued that the law must seek to achieve the greatest good for the greatest number of people in society. Bentham's theory, known as Utilitarianism, continues to influence legal thinkers in the United States.

Law and economics is one school of thought that traces its lineage to Benthamite jurisprudence. This school, also known as economic analysis of the law, argues that judges must decide cases in order to maximize the wealth of society. According to law and economics exponents, such as richard posner, each person in society is a rational maximizer of his or her own self-interest. Persons who rationally maximize their self-interest are willing to exchange something they value less for something they value more. For example, every day in the United States, people voluntarily give up their time, money, and liberty to acquire food, property, or peace of mind. This school of thought contends that the law must facilitate these voluntary exchanges to maximize the aggregate wealth of society.

Another school of thought Bentham influenced is known as legal pragmatism. Unlike law and economics exponents, legal pragmatists provide no formula for determining the best means to improve the welfare of society. Instead, pragmatists contend that judges must merely set a goal that they hope to achieve in resolving a particular legal dispute, such as the preservation of societal stability, the protection of individual rights, or the delineation of governmental powers and responsibilities. Judges must then draft the best court order to accomplish this goal. Pragmatists maintain that judges must choose the appropriate societal goal by weighing the value of competing interests presented by a lawsuit, and then using a "grab bag" of "anecdote, introspection, imagination, common sense, empathy, metaphor, analogy, precedent, custom, memory, experience, intuition, and induction" to reach the appropriate balance (Posner 1990, 73).

Pragmatism, sometimes called instrumentalism, is best exemplified by Justice Holmes's statement that courts "decide cases first, and determine the principle afterwards." This school of thought is associated with result-oriented jurisprudence, which focuses more on the consequences of a judicial decision than on how the relevant legal principles should be applied.

The Realist-Formalist Debate

The realist-formalist dichotomy represents only half of the jurisprudential picture in the United States. The other half comprises a dialogue between the positivist and natural-law schools of thought. This dialogue revolves around the classic debate over the appropriate sources of law.

Positivists maintain that the only appropriate sources of law are rules and principles that have been expressly enacted or recognized by a governmental entity, like a state or federal legislature, administrative body, or court of law. These rules and principles may be properly considered law, positivists contend, because individuals may be held liable for disobeying them. Positivists believe that other sources for determining right and wrong, such as religion and contemporary morality, are only aspirational, and may not be legitimately consulted by judges when rendering a decision.

Natural-law proponents, or naturalists, agree that governmental rules and regulations are a legitimate source of law, but assert that they are not the only source. Naturalists believe that the law must be informed by eternal principles that existed before the formation of government and are independent of governmental recognition. Depending on the particular strain of Natural Law, these principles may be derived from theology, moral philosophy, human reason, historical practice, and individual conscience.

The dialogue between positivists and naturalists has a long history. For many centuries, historians, theologians, and philosophers distinguished positivism from naturalism by separating written law from unwritten law. For example, the Ten Commandments were inscribed on stone tablets, as were many of the laws of the ancient Greeks. Roman Emperor Justinian I (a.d. 482–565) reduced most of his country's laws to a voluminous written code. At the same time, Christian, Greek, and Roman thinkers all appealed to a higher law that transcended the written law promulgated by human beings.

Prior to the American Revolution, English philosophers continued this debate along the same lines. English political thinkers John Austin and Thomas Hobbes were strict positivists who believed that the only authority courts should recognize are the commands of the sovereign because only the sovereign is entrusted with the power to back up a command with military and police force. First intimated by Italian philosopher Niccolò Machiavelli, the "sovereign command" theory of law has been equated in the United States with the idea that might makes right.

Contrasted with the writings of Hobbes and Austin were the writings of John Locke in England and Thomas Jefferson in America. In his Second Treatise on Government (1690), Locke established the idea that all people are born with the inalienable right to life, liberty, and property. Locke's ruminations about individual rights that humans possess in the state of nature prior to the creation of government foreshadowed Jefferson's Declaration of Independence. In 1776, the Declaration of Independence announced the self-evident truth that "all men are created equal" and are "endowed by their Creator with certain inalienable Rights," including the right to "Life, Liberty and the pursuit of Happiness."

Both positivism and naturalism have had an enormous influence on how U.S. citizens think about law. The institution of African–American Slavery, which was recognized by the U.S. Constitution and legalized by legislation passed in the South prior to the Civil War (1861–65), was attacked by abolitionists who relied on higherlaw principles of religion and conscience to challenge the moral foundations of human bondage. Following World War II, the Allied powers successfully prosecuted German government officials, industrialists, and military leaders in Nuremberg for committing Genocide against European Jewry, even though the Nazi regime had passed laws authorizing such extermination. The Allies relied in part on the natural-law principle that human dignity is an inviolable right that no government may vitiate by written law.

Historical Jurisprudence

Positivists and naturalists tend to converge in the area of historical jurisprudence. Historical jurisprudence is marked by judges who consider history, tradition, and custom when deciding a legal dispute. Strictly speaking, history does not completely fall within the definition of either positivism or natural law. Historical events, like the Civil War, are not legislative enactments, although they may be the product of governmental policy. Nor do historical events embody eternal principles of morality, although they may be the product of clashing moral views. Yet, historical events shape both morality and law. Thus, many positivists and naturalists find a place for historical jurisprudence in their legal philosophy.

For example, Justice Holmes was considered a positivist to the extent that he believed that courts should defer to legislative judgment unless a particular statute clearly violates an express provision of the Constitution. But he qualified this stance when a given statute "infringe[s] on fundamental principles as they have been understood by the traditions of our people and our law" (lochner v. new york, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 [1905]). In such instances, Holmes felt, courts were justified in striking down a particular written law.

benjamin n. cardozo, considered an adherent of sociological jurisprudence by some and a realist by others, was another Supreme Court justice who incorporated history into his legal philosophy. When evaluating the merits of a claim brought under the due process Clauses of the Fifth and Fourteenth Amendments, Cardozo denied relief to claims that were not "implicit in the concept of ordered liberty" and the "principle[s] of justice [that are] so rooted in the traditions and conscience of our people as to be ranked as fundamental" (Palko v. Connecticut, 302 U.S. 319, 58 S. Ct. 149, 82 L. Ed. 288 [1937]).

Contemporary Thought

Each school of jurisprudence is not a self-contained body of thought. The lines separating positivism from realism and natural law from formalism often become blurry. The legal philosophy of Justice Holmes, for example, borrowed from the realist, positivist, pragmatic, and historical strains of thought.

In this regard, some scholars have observed that it is more appropriate to think of jurisprudence as a spectrum of legal thought, where the nuances of one thinker delicately blend with those of the next. For example, Harold Berman, a leading authority on comparative Legal History, has advocated the development of an integrative jurisprudence, which would assimilate into one philosophy the insights from each school of legal theory. The staying power of any body of legal thought, Berman has suggested, lies not in its name but in its ability to explain the enterprise of law.

 

Criminal Law                                                                                               

A body of rules and statutes that defines conduct prohibited by the government because it threatens and harms public safety and welfare and that establishes punishment to be imposed for the commission of such acts. The term criminal law generally refers to substantive criminal laws. Substantive criminal laws define crimes and may establish punishments. In contrast, Criminal Procedure describes the process through which the criminal laws are enforced. For example, the law prohibiting murder is a substantive criminal law. The manner in which government enforces this substantive law—through the gathering of evidence and prosecution—is generally considered a procedural matter.

Crimes are usually categorized as felonies or misdemeanors based on their nature and the maximum punishment that can be imposed. A felony involves serious misconduct that is punishable by death or by imprisonment for more than one year. Most state criminal laws subdivide felonies into different classes with varying degrees of punishment. Crimes that do not amount to felonies are misdemeanors or violations. A misdemeanor is misconduct for which the law prescribes punishment of no more than one year in prison. Lesser offenses, such as traffic and parking infractions, are often called violations and are considered a part of criminal law.

The power to make certain conduct illegal is granted to Congress by virtue of the Necessary and Proper Clause of the Constitution (art. I, § 8, cl. 18). Congress has the power to define and punish crimes whenever it is necessary and proper to do so, in order to accomplish and safeguard the goals of government and of society in general. Congress has wide discretion in classifying crimes as felonies or misdemeanors, and it may revise the classification of crimes.

State legislatures have the exclusive and inherent power to pass a law prohibiting and punishing any act, provided that the law does not contravene the provisions of the U.S. or state constitution. When classifying conduct as criminal, state legislatures must ensure that the classification bears some reasonable relation to the welfare and safety of society. Municipalities may make designated behavior illegal insofar as the power to do so has been delegated to them by the state legislature.

Laws passed by Congress or a state must define crimes with certainty. A citizen and the courts must have a clear understanding of a criminal law's requirements and prohibitions. The elements of a criminal law must be stated explicitly, and the statute must embody some reasonably discoverable standards of guilt. If the language of a statute does not plainly show what the legislature intended to prohibit and punish, the statute may be declared void for vagueness.

In deciding whether a statute is sufficiently certain and plain, the court must evaluate it from the standpoint of a person of ordinary intelligence who might be subject to its terms. A statute that fails to give such a person fair notice that the particular conduct is forbidden is indefinite and therefore void. Courts will not hold a person criminally responsible for conduct that could not reasonably be understood to be illegal. However, mere difficulty in understanding the meaning of the words used, or the Ambiguity of certain language, will not nullify a statute for vagueness.

A criminal statute does not lapse by failure of authorities to prosecute violations of it. If a statute is expressly repealed by the legislature, but some of its provisions are at the same time re-enacted, the re-enacted provisions continue in force without interruption. If a penal statute is repealed without a saving clause, which would provide that the statute continues in effect for crimes that were committed prior to its repeal, violations committed prior to its repeal cannot be prosecuted or punished after its repeal.

The same principles govern pending criminal proceedings. The punishment that is provided under a repealed statute without a saving clause cannot be enforced, nor can the proceeding be prosecuted further, even if the accused pleads guilty. A court cannot inflict punishment under a statute that no longer exists. If a relevant statute is repealed while an appeal of a conviction is pending, the conviction must be set aside if there is no saving clause. However, once a final judgment of conviction is handed down on appeal, a subsequent repeal of the statute upon which the conviction is based does not require reversal of the judgment.

Generally, two elements are required in order to find a person guilty of a crime: an overt criminal act and criminal intent. The requirement of an Overt Act is fulfilled when the defendant purposely, knowingly, or recklessly does something prohibited by law. An act is purposeful when a person holds a conscious objective to engage in certain conduct or to cause a particular result. To act knowingly means to do so voluntarily and deliberately, and not owing to mistake or some other innocent reason. An act is reckless when a person knows of an unjustifiable risk and consciously disregards it.

An omission, or failure to act, may constitute a criminal act if there is a duty to act. For example, a parent has a duty to protect his or her child from harm. A parent's failure to take reasonable steps to protect a child could result in criminal charges if the omission were considered to be at least reckless.

Ordinarily, a person cannot be convicted of a crime unless he or she is aware of all the facts that make his or her conduct criminal. However, if a person fails to be aware of a substantial and unjustifiable risk, an act or omission involving that risk may constitute negligent conduct that leads to criminal charges. Negligence gives rise to criminal charges only if the defendant took a very unreasonable risk by acting or failing to act.

Intent

Criminal intent must be formed before the act, and it must unite with the act. It need not exist for any given length of time before the act; the intent and the act can be as instantaneous as simultaneous or successive thoughts.

A jury may be permitted to infer criminal intent from facts that would lead a reasonable person to believe that it existed. For example, the intent to commit Burglary may be inferred from the accused's possession of tools for picking locks.

Criminal intent may also be presumed from the commission of the act. That is, the prosecution may rely on the presumption that a person intends the Natural and Probable Consequences of his or her voluntary acts. For example, the intent to commit murder may be demonstrated by the particular voluntary movement that caused the death, such as the pointing and shooting of a firearm. A defendant may rebut this presumption by introducing evidence showing a lack of criminal intent. In the preceding example, if the murder defendant reasonably believed that the firearm was actually a toy, evidence showing that belief might rebut the presumption that death was intended.

Proof of general criminal intent is required for the conviction of most crimes. The intent element is usually fulfilled if the defendant was generally aware that he or she was very likely committing a crime. This means that the prosecution need not prove that the defendant was aware of all of the elements constituting the crime. For example, in a prosecution for the possession of more than a certain amount of a controlled substance, it is not necessary to prove that the defendant knew the precise quantity. Other examples of general-intent crimes are Battery, rape, Kidnapping, and False Imprisonment.

Some crimes require a Specific Intent. Where specific intent is an element of a crime, it must be proved by the prosecution as an independent fact. For example, Robbery is the taking of property from another's presence by force or threat of force. The intent element is fulfilled only by evidence showing that the defendant specifically intended to steal the property. Unlike general intent, specific intent may not be inferred from the commission of the unlawful act. Examples of specific-intent crimes are solicitation, attempt, conspiracy, first-degree premeditated murder, assault, Larceny, robbery, burglary, forgery, false pretense, and Embezzlement.

Most criminal laws require that the specified crime be committed with knowledge of the act's criminality and with criminal intent. However, some statutes make an act criminal regardless of intent. When a statute is silent as to intent, knowledge of criminality and criminal intent need not be proved. Such statutes are called Strict Liability laws. Examples are laws forbidding the sale of alcohol to minors, and Statutory Rape laws.

The doctrine of transferred intent is another nuance of criminal intent. Transferred intent occurs where one intends the harm that is actually caused, but the injury occurs to a different victim or object. To illustrate, the law allows prosecution where the defendant intends to burn one house but actually burns another instead. The concept of transferred intent applies to Homicide, battery, and Arson.

Felony-murder statutes evince a special brand of transferred intent. Under a felony-murder statute, any death caused in the commission of, or in an attempt to commit, a predicate felony is murder. It is not necessary to prove that the defendant intended to kill the victim. For example, a death resulting from arson will give rise to a murder charge even though the defendant intentionally set the structure on fire without intending to kill a human being. Furthermore, the underlying crime need not have been the direct cause of the death. In the arson example, the victim need not die of burns; a fatal heart attack will trigger a charge of felony murder. In most jurisdictions, a death resulting from the perpetration of certain felonies will constitute first-degree murder. Such felonies usually include arson, robbery, burglary, rape, and kidnapping.

Malice

Malice is a state of mind that compels a person to deliberately cause unjustifiable injury to another person. At Common Law, murder was the unlawful killing of one human being by another with malice aforethought, or a predetermination to kill without legal justification or excuse. Most jurisdictions have omitted malice from statutes, in favor of less-nebulous terms to describe intent, such as purpose and knowing.

Massachusetts, for example, has retained malice as an element in criminal prosecutions. Under the General Laws of the Commonwealth of Massachusetts, Chapter 265, Section 1, malice is an essential element of first- and second-degree murder. According to the Supreme Judicial Court of Massachusetts malice is a mental state that "includes any unexcused intent to kill, to do grievous bodily harm, or to do an act creating a plain and strong likelihood that death or grievous harm will follow" (Commonwealth v. Huot, 403 N.E.2d 411 [1980]).

Motives

Motives are the causes or reasons that induce a person to form the intent to commit a crime. They are not the same as intent. Rather, they explains why the person acted to violate the law. For example, knowledge that one will receive insurance funds upon the death of another may be a motive for murder, and sudden financial difficulty may be motive for embezzlement or burglary.

Proof of a motive is not required for the conviction of a crime. The existence of a motive is immaterial to the matter of guilt when that guilt is clearly established. However, when guilt is not clearly established, the presence of a motive might help to establish it. If a prosecution is based entirely on Circumstantial Evidence, the presence of a motive might be persuasive in establishing guilt; likewise, the absence of a motive might support a finding of innocence.

Defenses

Defenses Negating Criminal Capacity To be held responsible for a crime, a person must understand the nature and consequences of his or her unlawful conduct. Under certain circumstances, a person who commits a crime lacks the legal capacity to be held responsible for the act.

Examples of legal incapacity are infancy, incompetence, and intoxication.

Children are not criminally responsible for their actions until they are old enough to understand the difference between right and wrong and the nature of their actions. Children under the age of seven are conclusively presumed to lack the capacity to commit a crime. Between the ages of seven and 14, children are presumed to be incapable of committing a crime. However, this presumption is not conclusive; it can be rebutted by the prosecution through the admission of evidence that the child knew that what he or she was doing was wrong. Anyone over the age of 14 is presumed to be capable of committing a crime, but this presumption can be rebutted by proof of either mental or physical incapacity.

Should More Crimes Be Made Federal Offenses?

Enforcement of criminal laws in the United States has traditionally been a matter handled by the states. The federal government, conversely, has typically limited itself to policing only crimes against the federal government and interstate crime. This is just one expression of the U.S. system of Federalism, the notion that the federal government exists in tandem with the states and does not, without necessity, deprive states of their powers. The Tenth Amendment to the U.S. Constitution is an example of federalism at work. That amendment states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Near the end of the twentieth century, however, Congress passed a host of federal laws that directly overlap with existing state criminal laws. Such laws include the Anti-Car Theft Act of 1992, the Child Support Recovery Act of 1992, the Animal Enterprise Protection Act of 1992, and new criminal laws on Arson, narcotics and dangerous drugs, guns, Money Laundering and reporting, Domestic Violence, environmental transgressions, career criminals, and repeat offenders. As a result, in 1998, the number of criminal prosecutions in federal courts increased by 15 percent. The increase was nearly three times the increase in federal criminal prosecutions in 1997.

In a Report of the Federal Judiciary issued at the end of 1998, U.S. Supreme Court Chief Justice william h. rehnquist criticized the congressional movement toward federalizing the criminal justice system. "Federal courts were not created to adjudicate local crimes," Rehnquist instructed, "no matter how sensational or heinous the crimes may be." Rehnquist noted the tremendous toll that federalization of crime was exacting on the federal judiciary, and he decried the damage it was doing to the concept of federalism: "The trend to federalize crimes that traditionally have been handled in state courts not only is taxing the judiciary's resources and affecting its budget needs, but it also threatens to change entirely the nature of our federal system." According to Rehnquist, the problem was political in nature; senators and representatives in Congress were using the act of lawmaking to win or keep their seats: "The pressure in Congress to appear responsive to every highly publicized societal ill or sensational crime needs to be balanced with an inquiry into whether states are doing an adequate job in this particular area and, ultimately, whether we want most of our legal relationships decided at the national rather than local level."

In his 1998 report, Rehnquist cited a report on federal courts issued by the 1995 Judicial Conference of the United States. The Judicial Conference recommended that federal courts be used for only five types of cases: 1) offenses against the government or its inherent interests; 2) criminal activity with substantial multi-state or international aspects; 3) criminal activity involving complex commercial or institutional enterprises most effectively prosecuted under federal resources or expertise; 4) serious high level or widespread state or local government corruption; and 5) criminal cases raising highly sensitive local issues. "Although Congress need not follow the recommendations of the Judicial Conference," Rehnquist wrote, "this Long-Range Plan is based not simply on the preference of federal judges, but on the traditional principle of federalism that has guided the country throughout its existence."

Concern over the federalization trend spread during the late 1990s. The Criminal Justice Section of the American Bar Association (ABA) organized a task force—the Task Force on the Federalization of Criminal Law—to look into the matter. In 1998, the task force issued a report in which it criticized the trend. Victor S. (Torry) Johnson, a representative of the National District Attorneys Association (NDAA) on the task force, declared in Prosecutor, "By trying to fight street crime through federal legislation, Congress misleads the public into believing that a national response will be effective and that the problem will be solved with federal intervention." Congress then fails to provide enough federal funding to prosecute all the new laws, creating a situation in which the efforts of local law enforcement "are undermined by the unrealistic expectations created by Congress' well-publicized enactments."

In his 1999 article for Corrections Today, James A. Gondles Jr., executive director of the American Correctional Association, lamented the introduction of low-level, local criminals into the federal system. According to Gondles, mixing such prisoners with big-time federal criminals blurs the jurisdictional line and makes it "more difficult for those at the state and local levels to do their jobs."

Not everyone is troubled by the federalization of criminal law enforcement. Proponents of federal criminal laws argue that they are necessary in an increasingly mobile society. Crime tends to span more than one state and even local crime can have effects which cross state boundaries. In his article for the Hastings Law Journal, Rory K. Little, a professor of law at the University of California, Hastings College of Law, defended the increase in federal crimes as a protection against the inability of states to catch and prosecute all criminals. If the quality of justice is better in the federal courts, Little opines, "then problems of crime cannot be ignored federally while state criminal justice systems slowly sink and justice fails."

A U.S. Supreme Court decision in March 1999 constituted an approval of increased federal authority over crime. In United States v. Rodriguez-Moreno, 526 U.S. 275, 119 S.Ct. 1239, 143 L.Ed.2d 388 (1999), Jacinto Rodriguez-Moreno kidnapped a drug associate and took him from Texas to New Jersey, then to New York, and finally to Maryland. Rodriguez-Moreno was charged with, among other crimes, kidnapping and using and carrying a firearm in relation to a kidnapping, an act that violated 18 U.S.C.A. § 924(c)(1). Section 924(c)(1) makes it a crime to use or carry a firearm during, and in relation to, any crime of violence. Rodriguez-Moreno was tried in New Jersey on the charges, even though he did not have a gun in New Jersey.

Rodriguez-Moreno, who did not want to be tried in New Jersey, argued that the statute did not allow the federal government to prosecute him for the § 924 crime in New Jersey because he did not commit the crime in that state. The Court rejected the argument, holding that because the crime of violence (kidnapping) continued through several states, prosecution was proper in any district where the crime of violence was committed, even if the firearm was used or carried in only one state. The decision made it easier for federal prosecutors to pick and choose the venues for their cases.

Further readings

"Federalization of Crimes: Chief Justice Rehnquist on Federalization of Crimes." 1999. Prosecutor (March/April).

"Federalization of Crimes: NDAA's Representative Reports on ABA's Federalization Task Force." 1999. Prosecutor (March/April).

Gondles, James A. 1999. "The Federalization of Criminal Justice." Corrections Today (April).

Little, Rory K. 1995. "Myths and Principles of Federalization." Hastings Law Journal (April).

Cross-references

Federal Courts; State Courts; States' Rights.

All states have juvenile courts, which are separate from criminal courts. Juveniles who are accused of a crime are tried in these courts as delinquent children, rather than as criminal defendants. This alternative prevents children from invoking the defense of infancy. In juvenile courts, criminal charges lead to an adjudication rather than prosecution, because the aim of juvenile courts is to rehabilitate, rather than to punish. In the 1990s, some state legislatures passed laws to make it easier to prosecute juveniles in adult courts, especially in cases involving violent crimes.

Insane persons cannot, in a legal sense, form the intent necessary to commit a crime. They are not, therefore, criminally responsible for their actions. Courts have applied a variety of legal tests to determine the mental state of a criminal defendant who claims that he or she was insane at the time of the alleged crime. One test is the M'Naghten Rule, which was originally used by an English court in the criminal prosecution of Daniel M'Naghten.

M'Naghten had an insane delusion that the prime minister of England, Sir Robert Peel, was trying to kill him. Mistaking the prime minister's secretary, Edward Drummond, for the prime minister, M'Naghten killed the secretary. At his trial, M'Naghten asserted that he had been insane when he committed the crime. The jury accepted his argument and acquitted him. From that decision evolved the M'Naghten test, under which, in order to disclaim criminal responsibility, a defendant must be affected by a disease of the mind at the time he or she commits the act. The disease must cause the ability to reason to become so defective that the person does not know the nature and quality of the act or else does not know that the act is wrong. A successful invocation of the M'Naghten defense results in commitment to a mental institution for treatment, rather than imprisonment.

A number of states prefer the "irresistible impulse" test as the standard for determining the sanity of a criminal defendant. If the defendant is suffering from a mental disease that prevents control of personal conduct, he or she may be adjudged not guilty by reason of insanity, even if he or she knows the difference between right and wrong.

The Model Penal Code of the American Law Institute established another test of insanity that has been adopted by almost all of the federal courts and by numerous state legislatures. Under the Model Penal Code test, a person is not responsible for criminal conduct if, at the time of such conduct, he or she lacks the capacity either to appreciate the criminality or the wrongfulness of the conduct, or to conform his or her conduct to the requirement of law. This lack-of-capacity excuse does not apply to abnormalities demonstrated by a repetitive pattern of illegal or violent acts.

Some states employ the "lack-of-substantial-capacity" test. The phrase "lacks substantial capacity" is a qualification of the M'Naghten rule and the irresistible-impulse test, both of which require the total absence of capacity. This test also requires a showing of causality. The defense is not established merely by a showing of a mental disease; rather, it is established only if, as a result of the disease, the defendant lacks the substantial capacity that is required in order to hold him or her criminally responsible. For example, pyromania may be a defense to a charge of arson, but it is no defense to a charge of larceny. An Irresistible Impulse arising from anger, jealousy, or a desire for revenge does not excuse a defendant from criminal responsibility unless such emotions are part of the mental disease that caused the crime.

Generally, voluntary intoxication from drugs or alcohol does not excuse a criminal act. Involuntary intoxication is, however, a valid defense. It occurs when a person is forced to take an intoxicating substance against his or her will, or does so by mistake. If a defendant's involuntary intoxicated condition causes a criminal act, the defendant will not be convicted if, because of the intoxication, he or she is unable to appreciate the criminality of the conduct.

Fair Warning Defense The due process Clauses contained in the Fifth and Fourteenth Amendments to the U.S. Constitution require that before a defendant may be prosecuted for criminal conduct, the law must make clear which conduct is criminal. Justice Oliver Wendell Holmes articulated the standard when he wrote that a criminal statute must give "fair warning … in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear." McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 341, 75 L. Ed. 816 (1931)."

The U.S. Supreme Court had the opportunity to revisit the fair-warning requirement in United States. v. Lanier, 520 U.S. 259, 117 S. Ct. 1219, 137 L. Ed. 2d 432 (1997). Lanier was a case involving a prosecution under 18 U.S.C.A. § 242, a Reconstruction-era Civil Rights law that makes it a federal crime to deprive another of "any rights, privileges, or immunities secured or protected by the constitution or laws of the United States" while acting "under color of any law."

Congress originally passed the law to afford a federal right in federal courts for situations when, by reason of prejudice, passion, neglect, intolerance, or otherwise, state courts might not be as vigilant as federal courts in protecting the rights that are guaranteed by the Fourteenth Amendment to the U.S. Constitution.

Traditionally, Section 242 had been primarily invoked against police officers and prison guards. The Lanier case arose from allegations of sexual misconduct against the sole state Chancery Court judge for two rural counties in western Tennessee, David Lanier. The trial record shows that from 1989 to 1991, while Lanier was in office, he sexually assaulted several women in his judicial chambers.

Lanier's most serious assault involved a woman whose Divorce proceedings had come before his chancery court and whose daughter's custody remained subject to his jurisdiction. When the woman applied for a secretarial job at Lanier's courthouse, Lanier interviewed her. As the woman got up to leave, Lanier grabbed her, sexually assaulted her, and finally committed oral rape.

On five other occasions Lanier sexually assaulted four other women: two of his secretaries, a Youth Services officer, and a local coordinator for a federal program who had been in Lanier's chambers to discuss a matter affecting the same court.

Lanier was later charged with 11 violations of Section 242. Each count of the indictment alleged that Lanier, acting willfully and under color of Tennessee law, had deprived the victims of the right to be free from willful sexual assault. Before trial, Lanier moved to dismiss the indictment on the ground that Section 242 is void for vagueness. The district court denied the motion.

The jury returned verdicts of guilty on seven counts, and not guilty on three (one count having been dismissed at the close of the prosecution's case). Lanier was then sentenced to consecutive maximum terms totaling 25 years.

A panel of the U.S. Court of Appeals for the Sixth Circuit affirmed the convictions and sentence, United States v. Lanier, 33 F.3d 639 (6th Cir. 1994), but the full court vacated that decision and granted a rehearing en banc. United States. v. Lanier, 43 F.3d 1033 (1995). On rehearing, the full court set aside Lanier's convictions for "lack of any notice … that this ambiguous criminal statute [i.e., Section 242] includes simple or sexual assault crimes within its coverage." United States v. Lanier, 73 F.3d 1380 (6th Cir. 1996).

Specifically, the Sixth Circuit held that criminal liability may be imposed under Section 242 only if the constitutional right said to have been violated is first identified in a decision of the U.S. Supreme Court (not any other federal or state court), and only when that right has been held to apply in "a factual situation fundamentally similar to the one at bar."

The Sixth Circuit then said it could not find any decision of the U.S. Supreme Court that recognized, under Section 242, a right to be free from unjustified assault or invasions of bodily integrity in a situation "fundamentally similar" to those circumstances under which Lanier was charged.

In the absence of such a decision, the Sixth Circuit said that Tennessee had violated Lanier's due process right to be fairly warned that particular conduct is prohibited and carries with it the possibility for criminal punishment. Accordingly, the Sixth Circuit reversed the judgment of conviction and instructed the trial court to dismiss the indictment.

The state of Tennessee appealed, and the U.S. Supreme Court reversed the Sixth Circuit, observing that there are three manifestations of the "fair warning requirement." First, the "vagueness doctrine" bars enforcement of statutes that either forbid or require an act in terms that are so vague that men of common intelligence must necessarily guess at their meaning and differ as to their application. Second, the Court wrote that the "canon of Strict Construction of criminal statutes" ensures fair warning by limiting application of ambiguous criminal statutes to conduct that is clearly covered. Third, due process bars courts from applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope. In other words, a trial court cannot "clarify" a statute by supplying terms through its own interpretation of the law, when those terms were not clearly contemplated by the statutory language chosen by the legislature.

However, the Court emphasized that the due process fair-warning requirement does not require that prohibited criminal conduct be previously identified by one of its own decisions and held to apply in a factual situation "fundamentally similar" to the defendant's case at bar. Instead, the Court wrote, "all that can usefully be said about criminal liability under [Section 242] is that [liability] may be imposed for deprivation of constitutional right if, but only if, in light of preexisting law, unlawfulness under the constitution is apparent."

The Court then remanded the case to the Sixth Circuit for further proceedings in light of its opinion. After reading the high court's opinion, the Sixth Circuit vacated its earlier decision and ordered Lanier to begin serving his sentence. One Sixth Circuit judge dissented, criticizing the U.S. Supreme Court for not writing a clearer opinion that articulated what constituted "apparent" unlawful conduct.

Exculpatory Defenses Exculpatory defenses are factors that excuse a competent person from liability for a criminal act. Duress is an exculpatory defense. One who commits a crime as a result of the pressure of an unlawful threat of harm from another person is under duress and may be excused from criminal liability. At trial, whether the defendant was under duress is a Question of Fact for the judge or jury. The defense of duress was invoked in the 1976 trial of Patricia Campbell Hearst, the young daughter of wealthy newspaper owners Randolph A. Hearst and Catherine C. Hearst. On February 4, 1974, Patricia Hearst was kidnapped by the Symbionese Liberation Army (SLA) and held for the unusual ransom of food distribution to the poor. Shortly after the abduction, Hearst sent a recorded message to her parents, in which she announced that she had become a social revolutionary.

On April 15, Hearst participated in a bank robbery with members of the SLA. She was arrested in September 1975 and tried for armed bank robbery. At trial, Hearst's lawyers argued, in part, that Hearst's participation in the robbery had been caused by duress. Hearst testified that she had feared for her life as she had stood inside the Hibernia Bank. On cross-examination, Hearst invoked her Fifth Amendment privilege against Self-Incrimination 42 times. The refusal to answer so many prosecution questions might have damaged Hearst's credibility, and the jury did not accept her argument of duress. Hearst was convicted and sentenced to seven years in prison. (President jimmy carter commuted her sentence on February 1, 1979, and ordered her release from prison.)

Entrapment is another exculpatory defense to criminal charges. Entrapment exists if a law enforcement officer induces a person to commit a crime, for the purpose of instituting a criminal prosecution against that person. It is not available if law enforcement merely provides material for the crime.

Mistakes of law or fact are seldom successful defenses. Generally, a Mistake of Law is applicable only if the criminal statute was not published or made reasonably available prior to the act; the accused reasonably relied on the contrary teaching of another statute or judicial decision; or, in some jurisdictions, the accused reasonably relied on contrary official advice or a contrary official interpretation. A Mistake of Fact may excuse a defendant if the mistake shows that the defendant lacked the state of mind required for the crime. For example, in a specific-intent crime such as embezzlement, evidence that the accused was unaware of transfers into his or her own bank account would negate the specific criminal intent required for conviction.

Justification defenses include necessity, Self-Defense, defense of others, and defense of property. If a person acts to protect the life or health of another in a reasonable manner and with no other reasonable choice, that person may invoke the defense of necessity. According to the Model Penal Code, self-defense and defense of others are permissible when it reasonably appears necessary that force is required to defend against an aggressor's imminent use of unlawful force. Nondeadly force may be used in order to retain property, and Deadly Force may be used only to prevent serious bodily harm.

 

motion to suppress n. a motion (usually on behalf of a criminal defendant) to disallow certain evidence in an up-coming trial. Example: a confession which the defendant alleges was signed while he was drunk or without the reading of his Miranda rights. Since the motion is made at the threshold of the trial, it is a motion in limine, which is Latin for "at the threshold." (See: motion in limine)

motion in limine (limb-in-nay) n. from Latin for "threshold," a motion made at the start of a trial requesting that the judge rule that certain evidence may not be introduced in trial. This is most common in criminal trials where evidence is subject to constitutional limitations, such as statements made without the Miranda warnings (reading their rights)

exclusionary rule n. the rule that evidence secured by illegal means and in bad faith cannot be introduced in a criminal trial. The technical term is that it is "excluded" upon a motion to suppress made by the lawyer for the accused. It is based on the Constitutional requirement that "...no [person] can be deprived of life, liberty, or property, without due process of law." (Fifth Amendment to the Constitution, applied to the states by 14th Amendment). A technical error in a search warrant made in good faith will not cause exclusion of the evidence obtained under that warrant. However, evidence which was uncovered as a result of obtaining other evidence illegally will be excluded, under the "fruit of the poisonous tree doctrine." Thus, if an illegal wire tap reveals the location of other evidence, both the transcript of the wire tap conversation and the evidence to which the listeners were directed will be excluded. 

Mandate: A judicial command, order, or precept, written or oral, from a court; a direction that a court has the authority to give and an individual is bound to obey.A mandate might be issued upon the decision of an appeal, which directs that a particular action be taken, or upon a disposition made of a case by an inferior tribunal.The term mandate is also used in reference to an act by which one individual empowers another individual to conduct transactions for an individual in that person's name.

Writ of mandate (mandamus):n. 1) any mandatory order or requirement under statute, regulation, or by a public agency. 2) order of an appeals court to a lower court (usually the original trial court in the case) to comply with an appeals court's ruling, such as holding a new trial, dismissing the case, or releasing a prisoner whose conviction has been over-turned. 3) same as the writ of mandamus, which orders a public official or public body to comply with the law


Stare Decisis

[Latin, Let the decision stand.] The policy of courts to abide by or adhere to principles established by decisions in earlier cases.In the United States and England, the Common Law has traditionally adhered to the precedents of earlier cases as sources of law. This principle, known as stare decisis, distinguishes the common law from civil-law systems, which give great weight to codes of laws and the opinions of scholars explaining them. Under stare decisis, once a court has answered a question, the same question in other cases must elicit the same response from the same court or lower courts in that jurisdiction.

The principle of stare decisis was not always applied with uniform strictness. In medieval England, common-law courts looked to earlier cases for guidance, but they could reject those they considered bad law. Courts also placed less than complete reliance on prior decisions because there was a lack of reliable written reports of cases. Official reports of cases heard in various courts began to appear in the United States in the early 1800s, but semiofficial reports were not produced in England until 1865. When published reports became available, lawyers and judges finally had direct access to cases and could more accurately interpret prior decisions.

For stare decisis to be effective, each jurisdiction must have one highest court to declare what the law is in a precedent-setting case. The U.S. Supreme Court and the state supreme courts serve as precedential bodies, resolving conflicting interpretations of law or dealing with issues of first impression. Whatever these courts decide becomes judicial precedent.

In the United States, courts seek to follow precedent whenever possible, seeking to maintain stability and continuity in the law. Devotion to stare decisis is considered a mark of judicial restraint, limiting a judge's ability to determine the outcome of a case in a way that he or she might choose if it were a matter of first impression. Take, for example, the precedent set in roe v. wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147, the 1973 decision that defined a woman's right to choose Abortion as a fundamental constitutional right. Despite the controversy engendered by the decision, and calls for its repudiation, a majority of the justices, including some conservatives who might have decided Roe differently, have invoked stare decisis in succeeding abortion cases.

Nevertheless, the principle of stare decisis has always been tempered with a conviction that prior decisions must comport with notions of good reason or they can be overruled by the highest court in the jurisdiction.

The U.S. Supreme Court rarely overturns one of its precedents, but when it does, the ruling usually signifies a new way of looking at an important legal issue. For example, in the landmark case brown v. board of education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), the Supreme Court repudiated the separate-but-equal doctrine it endorsed in plessy v. ferguson, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896). The Court ignored stare decisis, renouncing a legal precedent that had legitimated racial Segregation for almost sixty years.



stare decisis (stah-ray duh-see-sis) n. Latin for "to stand by a decision," the doctrine that a trial court is bound by appellate court decisions (precedents) on a legal question which is raised in the lower court. Reliance on such precedents is required of trial courts until such time as an appellate court changes the rule, for the trial court cannot ignore the precedent (even when the trial judge believes it is "bad law"). (See: precedent, appellate court, lower court)

 Appellate Court                                                                                                                                                

A court having jurisdiction to review decisions of a trial-level or other lower court.An unsuccessful party in a lawsuit must file an appeal with an appellate court in order to have the decision reviewed. In the United States, appellate courts exist at both the federal and the state levels. On the federal level, decisions of the U.S. district courts, where civil and criminal matters are tried, can be appealed to the U.S. court of appeals for the circuit covering the district court. Eleven numbered federal judicial circuits have been established. Each circuit comprises a number of states that are usually, though not always, in close geographic proximity. For example, the Eighth Circuit includes Arkansas, Iowa, Minnesota, Missouri, Nebraska, and North and South Dakota, and the Sixth Circuit is made up of Kentucky, Michigan, Ohio, and Tennessee. Washington, D.C., has two U.S. Courts of Appeals: the District of Columbia Circuit Court of Appeals, which hears appeals arising out of decisions of the Federal District Court for the District of Columbia, and the U.S. Court of Appeals for the Federal Circuit, which has exclusive and nationwide jurisdiction in appeals from U.S. District Court decisions in patent, Copyright, trademark, and other specialized areas.

A decision of a U.S. court of appeals may be appealed to yet another appellate court, the Supreme Court of the United States. An appeal to the Supreme Court is made by filing a petition for certiorari (a document requesting a review of court records). The Supreme Court has broad discretion in determining whether to review decisions. The Court receives thousands of petitions a year, but can only review about one hundred cases in that span of time. It most often denies certiorari and hears only cases that raise important and unsettled constitutional questions or in which the federal appellate courts have reached conflicting decisions on the same issue.

On the state level, a decision of a state trial court—usually a district or other local court—can be appealed to a state appellate court for review. In most states, a case must first be appealed to an intermediate appellate court. If it receives an unfavorable ruling at the intermediate level, the case can then be appealed to the highest appellate court in the state, usually the state supreme court. Like the Supreme Court of the United States, a state's highest court usually has the discretion to decide whether to review a decision reached by the intermediate court. Some cases decided by the highest court in a state also can be appealed to the Supreme Court, though again the U.S. Supreme Court will hear only appeals of major significance.

In both state and federal matters, in general, an appeal can be brought only after a final decision, or final judgment, in the action has been entered. A judgment is final for the purposes of an appeal when nothing more is to be decided in the action, and it concludes all rights that were subject to litigation. This rule is based in part on the desire for judicial economy: it is more efficient for all matters to be heard in one appeal than for a case to be conducted "piecemeal" (in several appeals) before it is finally resolved. However, both state and federal courts will in some instances hear an Interlocutory appeal, which is an appeal of a matter that does not decide the entire case but must be addressed before the case can be decided on its merits. In other instances, whether an interlocutory appeal will be granted depends on the issue at hand. If the issue concerns whether the lawsuit should go forward at the trial level, it is more likely to be heard, since it may avoid an unnecessary trial. For example, an interlocutory appeal may be permitted from an order granting or denying an Injunction even though the main issues in the case have yet to be tried.

The proceedings in the federal and state appellate courts are quite different from those that take place in a trial court. At the trial level, witnesses are called to testify and a jury is often present to hear evidence and reach a verdict. At the appellate level, the trial court record and briefs prepared by both parties are reviewed, and oral arguments may be heard; witnesses are not called and no jury is convened. The trial court record usually contains the pleadings that first initiated the case, a complete transcript of the court proceedings, materials admitted into evidence, and documents indicating the final judgment.

An appellate court differs from a trial court in another important respect: only the trial court determines the factual issues in a case. In its review, the appellate court does not try factual issues. Instead, it determines only whether there is sufficient evidence to support the findings of the trial court and whether the trial court correctly applied the law.

Both the appellant (the party appealing the lower-court ruling) and the appellee (the party against whom the appeal has been brought) file written briefs with the appellate court. The briefs—which recite the facts of the case, the arguments being raised on appeal, and the applicable law—help the court decide whether the trial court erred in its decision.

The appellate court may also hear oral arguments in the case. During oral argument, each party has ten to fifteen minutes to persuade the appellate court to rule in its favor. If numerous issues have been raised, a party may choose to use most of this time to cover the issues that are most crucial to the decision to be made. The court is free to interrupt an oral argument with questions concerning the facts of the case or the particular areas of law involved. The appellate court, at its discretion, may determine that oral argument is not necessary and may decide the case based only on the trial court record and the written briefs.

In making its decision, the appellate court may affirm the trial court, meaning that it accepts the decision of the lower court, or may reverse it, thus agreeing with the appellant's contention that the trial court's decision was erroneous. It may also modify the decision; in this instance, the court may accept part of the trial court's decision while ruling that other issues were erroneously decided.

The appellate court usually issues its decision in the form of a written opinion stating its reasons for the decision. The opinion will discuss the relevant facts, and apply the law to those facts. Appellate court opinions are usually published, thus forming a body of law, known as precedent, that attorneys and judges can consult for guidance in resolving similar legal questions.Interlocutory actions

Interlocutory appeals

Provisional; interim; temporary; not final; that which intervenes between the beginning and the end of a lawsuit or proceeding to either decide a particular point or matter that is not the final issue of the entire controversy or prevent irreparable harm during the pendency of the lawsuit.Interlocutory actions are taken by courts when a Question of Law must be answered by an appellate court before a trial may proceed or to prevent irreparable harm from occurring to a person or property during the pendency of a lawsuit or proceeding. Generally, courts are reluctant to make interlocutory orders unless the circumstances surrounding the case are serious and require timely action.

Interlocutory appeals are restricted by state and federal appellate courts because courts do not want piecemeal litigation. Appeals courts generally review only cases that have reached final judgment in the trial courts. When a court administrator enters final judgment, this certifies that the trial court has ended its review of the case and jurisdiction shifts to the appellate court.

Interlocutory appeals are typically permitted when the trial judge certifies to the appellate court in an interlocutory order that an important question of law is in doubt and that it will substantially affect the final result of the case. Judicial economy then dictates that the court resolve the issue rather than subject the parties to a trial that may be reversed on an appeal from a final judgment.

Appellate courts have the discretion to review interlocutory orders. The federal courts of appeal are governed by the Interlocutory Appeals Act (28 U.S.C.A. § 1292). This act grants discretion to the courts of appeal to review interlocutory orders in civil cases where the district judge states in the order that a controlling question of law is in doubt and that the immediate resolution of the issue will materially advance the ultimate termination of litigation. State appellate courts are governed by statutes and court rules of appellate procedure regarding the review of interlocutory orders.

When an appellate court reviews an interlocutory order, its decision on the matters contained in the order is final. The court enters an interlocutory judgment, which makes that part of the case final. Therefore, if a case proceeds to trial after an interlocutory judgment is entered, and an appeal from the trial court judgment follows, the matters decided by the interlocutory judgment cannot be reviewed by the court again.

Interlocutory orders may be issued in a Divorce proceeding to prevent injury or irreparable harm during the pendency of the lawsuit. For example, an interlocutory order may require one spouse to pay the other spouse a designated weekly sum for support, pending a decision on Alimony and Child Support. This prevents the spouse and children from being without income during the action.

Courts may also issue interlocutory orders where property is about to be sold or forfeited and a lawsuit has been filed seeking to stop the action. In this type of case, a court will enter an interlocutory Injunction, preventing the transfer of property until it has made a final decision. To do otherwise would cause irreparable harm and would complicate legal title to the property if the person contesting the transfer ultimately prevailed.

Thus, though the courts value finality in most proceedings, interlocutory orders and appeals are available to protect important rights and to enhance judicial econom

 

An injunction

A court order by which an individual is required to perform, or is restrained from performing, a particular act. A writ framed according to the circumstances of the individual case.An injunction commands an act that the court regards as essential to justice, or it prohibits an act that is deemed to be contrary to good conscience. It is an extraordinary remedy, reserved for special circumstances in which the temporary preservation of the status quo is necessary.

An injunction is ordinarily and properly elicited from other proceedings. For example, a landlord might bring an action against a tenant for waste, in which the right to protect the land-lord's interest in the ownership of the premises is at issue. The landlord might apply to the court for an injunction against the tenant's continuing harmful use of the property. The injunction is an ancillary remedy in the action against the tenant.

Injunctive relief is not a matter of right, but its denial is within the discretion of the court. Whether or not an injunction will be granted varies with the facts of each case.

The courts exercise their power to issue injunctions judiciously, and only when necessity exists. An injunction is usually issued only in cases where irreparable injury to the rights of an individual would result otherwise. It must be readily apparent to the court that some act has been performed, or is threatened, that will produce irreparable injury to the party seeking the injunction. An injury is considered irreparable when it cannot be adequately compensated by an award of damages. The pecuniary damage that would be incurred from the threatened action need not be great, however. If a loss can be calculated in terms of money, there is no irreparable injury. The consequent refusal by a court to grant an injunction is, therefore, proper. Loss of profits alone is insufficient to establish irreparable injury. The potential destruction of property is sufficient.

Injunctive relief is not a remedy that is liberally granted, and, therefore, a court will always consider any hardship that the parties will sustain by the granting or refusal of an injunction. The court that issues an injunction may, in exercise of its discretion, modify or dissolve it at a later date if the circumstances so warrant.

Types of Injunction

Preliminary A preliminary or temporary injunction is a provisional remedy that is invoked to preserve the subject matter in its existing condition. Its purpose is to prevent dis-solution of the plaintiff's rights. The main reason for use of a preliminary injunction is the need for immediate relief.

Preliminary or temporary injunctions are not conclusive as to the rights of the parties, and they do not determine the merits of a case or decide issues in controversy. They seek to prevent threatened wrong, further injury, and irreparable harm or injustice until such time as the rights of the parties can be ultimately settled. Preliminary injunctive relief ensures the ability of the court to render a meaningful decision and serves to prevent a change of circumstances that would hamper or block the granting of proper relief following a trial on the merits of the case.

A motion for a preliminary injunction is never granted automatically. The discretion of the court should be exercised in favor of a temporary injunction, which maintains the status quo until the final trial. Such discretion should be exercised against a temporary injunction when its issuance would alter the status quo. For example, during the Florida presidential-election controversy in 2000, the campaign of george w. bush asked a federal appeals court for a preliminary injunction to halt the manual counting of ballots. It sought a preliminary injunction until the U.S. Supreme Court could decide on granting a permanent injunction. In that case, Siegel v. Lepore, 234 F.3d 1163 (11th Cir. 2000). the U.S. Court of Appeals for the Eleventh Circuit refused to grant the injunction, stating that the Bush campaign had not "shown the kind of serious and immediate injury that demands the extraordinary relief of a preliminary injunction."

Preventive Injunctions An injunction directing an individual to refrain from doing an act is preventive, prohibitive, prohibitory, or negative. This type of injunction prevents a threatened injury, preserves the status quo, or restrains the continued commission of an ongoing wrong, but it cannot be used to redress a consummated wrong or to undo that which has already been done.

The Florida vote count in the presidential election of 2000 again serves as a good example. There, the Bush campaign sought preventive injunctions to restrain various counties from performing recounts after the Florida results had been certified. The Bush campaign did not attempt to overturn results already arrived at, but rather attempted to stop new results from coming in. In turn, the Gore campaign attempted to obtain a preventive injunction to prevent Florida's secretary of state from certifying the election results.

Mandatory Injunctions Although the court is vested with wide discretion to fashion injunctive relief, it is also restricted to restraint of a contemplated or threatened action. It also might compel Specific Performance of an act. In such a case, it issues a mandatory injunction, commanding the performance of a positive act. Because mandatory injunctions are harsh, courts do not favor them, and they rarely grant them. Such injunctions have been issued to compel the removal of buildings or other structures wrongfully placed upon the land of another.

Permanent Injunctions A permanent or perpetual injunction is one that is granted by the judgment that ultimately disposes of the injunction suit, ordered at the time of final judgment. This type of injunction must be final relief. Permanent injunctions are perpetual, provided that the conditions that produced them remain permanent. They have been granted to prevent blasting upon neighboring premises, to enjoin the dumping of earth or other material upon land, and to prevent Pollution of a water supply.

An individual who has been licensed by the state to practice a profession may properly demand that others in the same profession sub-scribe to the ethical standards and laws that govern it. An injunction is a proper remedy to prevent the illegal practice of a profession, and the relief may be sought by either licensed practitioners or a professional association. The illegal Practice of Law, medicine, dentistry, and architecture has been stopped by the issuance of injunctions.

Acts that are injurious to the public health or safety may be enjoined as well. For example, injunctions have been issued to enforce laws providing for the eradication of diseases in animals raised for food.

The government has the authority to protect citizens from damage by violence and from fear through threats and intimidation. In some states, an injunction is the proper remedy to bar the use of violence against those asserting their rights under the law.

Acts committed without Just Cause that interfere with the carrying on of a business may be enjoined if no other adequate remedy exists. A Trade Secret, for example, may be protected by injunction. An individual's right of personal privacy may be protected by an injunction if there is no other adequate remedy, or where a specific statutory provision for injunctive relief exists. An individual whose name or picture is used for advertising purposes without the individual's consent may enjoin its use. The theory is that injunctive relief is proper because of a celebrity's unique property interest in the commercial use of his or her name and likeness (i.e., their right of publicity).

Restraining Orders A Restraining Order is granted to preserve the status quo of the subject of the controversy until the hearing on an application for a temporary injunction. A Temporary Restraining Order is an extraordinary remedy of short duration that is issued to prevent unnecessary and irreparable injury. Essentially, such an order suspends proceedings until an opportunity arises to inquire whether an injunction should be granted. Unless extended by the court, a temporary restraining order ceases to operate upon the expiration of the time set by its terms.

 

Malicious Prosecution                                                                                     

An action for damages brought by one against whom a civil suit or criminal proceeding has been unsuccessfully commenced without Probable Cause and for a purpose other than that of bringing the alleged offender to justice. An action for malicious prosecution is the remedy for baseless and malicious litigation. It is not limited to criminal prosecutions but may be brought in response to any baseless and malicious litigation or prosecution, whether criminal or civil. The criminal defendant or civil respondent in a baseless and malicious case may later file this claim in civil court against the parties who took an active role in initiating or encouraging the original case. The defendant in the initial case becomes the plaintiff in the malicious prosecution suit, and the plaintiff or prosecutor in the original case becomes the defendant. In most states the claim must be filed within a year after the end of the original case. A claim of malicious prosecution is a tort action. A tort action is filed in civil court to recover money damages for certain harm suffered. The plaintiff in a malicious prosecution suit seeks to win money from the respondent as recompense for the various costs associated with having to defend against the baseless and vexatious case. The public policy that supports the action for malicious prosecution is the discouragement of Vexatious Litigation. This policy must compete against one that favors the freedom of law enforcement officers, judicial officers, and private citizens to participate and assist in the administration of justice.

In most jurisdictions an action for malicious prosecution is governed by the Common Law. This means that the authority to bring the action lies in case law from the courts, not statutes from the legislature. Most legislatures maintain some statutes that give certain persons Immunity from malicious prosecution for certain acts. In Colorado, for example, a merchant, a merchant's employee, or a police officer, who reasonably suspects that a theft has occurred, may detain and question the suspect without fear of liability for slander, false arrest, False Imprisonment, unlawful detention, or malicious prosecution (Colo. Rev. Stat. Ann. § 18-4-407 [West 1996]).

An action for malicious prosecution is distinct from an action for false arrest or false imprisonment. If a person is arrested by a police officer who lacks legal authority for the arrest, the proper remedy is an action for false arrest. If a person is confined against her or his will, the proper remedy is an action for false imprisonment. An action for malicious prosecution is appropriate only when the judicial system has been misused.

Elements of Proof: To win a suit for malicious prosecution, the plaintiff must prove four elements: (1) that the original case was terminated in favor of the plaintiff, (2) that the defendant played an active role in the original case, (3) that the defendant did not have probable cause or reasonable grounds to support the original case, and (4) that the defendant initiated or continued the initial case with an improper purpose. Each of these elements presents a challenge to the plaintiff.

The Original Case Was Terminated in Favor of the Plaintiff The original case must end before the defendant or respondent in that case may file a malicious prosecution suit. This requirement is relatively easy to prove. The original case qualifies as a prosecution if the defendant or respondent had to appear in court. The original case need not have gone to trial: it is enough that the defendant or respondent was forced to answer to a complaint in court. If the original case is being appealed, it is not considered terminated, and the defendant or respondent must wait to file a malicious prosecution suit.

To proceed with a malicious prosecution claim, the plaintiff must show that the original case was concluded in her or his favor. Generally, if the original case was a criminal prosecution, it must have been dismissed by the court, rejected by the Grand Jury, abandoned by the prosecutor, or decided in favor of the accused at trial or on appeal. If the original case was a civil suit, the respondent must have won at trial or the trial court must have disposed of the case in favor of the respondent (now the plaintiff).

If recovery by the plaintiff in a civil action was later reversed on appeal, this does not mean that the action was terminated in favor of the respondent. However, if the plaintiff in the original case won by submitting fabricated evidence or by other fraudulent activity, a reversal on such grounds may be deemed a termination in favor of the respondent. A settlement between the plaintiff and the respondent in a civil suit is not a termination in favor of the respondent. Likewise, courts do not consider a plea bargain in a criminal case to be a termination in favor of the defendant.

The Defendant Played an Active Role in the Original Case In a malicious prosecution suit, the plaintiff must prove that the defendant played an active role in procuring or continuing the original case. The plaintiff must prove that the defendant did more than simply participate in the original case. False testimony alone, for example, does not constitute malicious prosecution. Moreover, witnesses are immune from suit for Defamation, even if they lie on the witness stand. Such is the case because the concept of a fair and free trial requires that witnesses testify without fear of having to defend a defamation suit owing to their testimony.

An action for malicious prosecution focuses on the abuse of legal process, not on defamatory, untruthful statements. If a person helps another person launch a baseless case or takes action to direct or aid such a case, the first person may be held liable for malicious prosecution. The defendant must have been responsible in some way for the institution or continuation of the baseless case. This position of responsibility does not always include criminal prosecutors and civil plaintiffs. For example, if a prosecutor bringing criminal charges is tricked into prosecuting the case by an untruthful third party, the deceiving party is the one who may be found liable for malicious prosecution, not the prosecutor.

The Defendant Did Not Have Probable Cause to Support the Original Case The plaintiff must prove that the person who began or continued the original case did not have probable cause to do so. Generally, this means proving that the person did not have a reasonable belief in the plaintiff's guilt or liability. In examining this element, a court will look at several factors, including the reliability of all sources, the availability of information, the effort required to obtain information, opportunities given to the accused to offer an explanation, the reputation of the accused, and the necessity in the original case for speedy judicial action.

A failure to fully investigate the facts surrounding a case may be sufficient to prove a lack of probable cause. The termination of the original case in favor of the original defendant (now the plaintiff) may help to prove a lack of probable cause, but it may not be decisive on the issue. The plaintiff should present enough facts to allow a reasonable person to infer that the defendant acted without a reasonable belief in the plaintiff's guilt or liability in beginning or continuing the original case.

In a criminal case, an acquittal does not constitute a lack of probable cause. A criminal defendant stands a better chance of proving lack of probable cause if the original case was dismissed by prosecutors, a grand jury, or the court before the case went to trial. The criminal process provides several safeguards against prosecutions that lack probable cause, so a full criminal trial tends to show the presence of probable cause. Civil cases do not have the same safeguards, so a full civil trial does not tend to prove probable cause.

The Defendant Initiated or Continued the Original Case with an Improper Purpose In a malicious prosecution, the plaintiff must prove with specific facts that the defendant instituted or continued the original proceeding with an improper purpose. Sheer ill will constitutes an improper purpose, and it may be proved with facts that show that the defendant resented the plaintiff or wanted somehow to harm the plaintiff. However, the plaintiff does not have to prove that the defendant felt personal malice or hostility toward the plaintiff. Rather, the plaintiff need only show that the defendant was motivated by something other than the purpose of bringing the plaintiff to justice.

Few defendants admit to improper purposes, so improper purpose usually must be inferred from facts and circumstances. If the plaintiff cannot discover any apparent purpose, improper purpose can be inferred from the lack of probable cause.

Hodges v. Gibson Products Co. Hodges v. Gibson Products Co., 811 P.2d 151 (Utah 1991), contained all the elements of a malicious prosecution. According to Chad Crosgrove, the manager of Gibson Discount Center in West Valley, Utah, store money was noticed missing during the afternoon of September 4, 1981. Both Crosgrove and part-time bookkeeper Shauna Hodges had access to the money, and both denied taking it. On September 9 Crosgrove and Gibson officials went to the local police station, where they lodged an accusation of theft against Hodges. Crosgrove was not accused. Hodges was arrested, handcuffed, and taken to jail. After a Preliminary Hearing, she was released on bail and ordered to return for trial on May 12, 1982.

After Hodges was formally charged, an internal audit at Gibson revealed that Crosgrove had embezzled approximately $9,000 in cash and goods from the store. The thefts had occurred over a time period that included September 4, 1981. Gibson still did not charge Crosgrove with theft. Instead, it allowed him to resign with a promise to repay the money.

The night before Hodges's trial was to begin, and almost two months after Crosgrove's Embezzlement was discovered, management at Gibson notified Hodges's prosecutor of Crosgrove's activities. The prosecutor immediately dropped the charges against Hodges. Hodges then filed a suit for malicious prosecution against Gibson and against Crosgrove.

At trial Hodges was able to prove all the elements of malicious prosecution to the jury's satisfaction: (1) She had been subjected to prosecution for theft, and the matter had been terminated in her favor. (2) She had sued the correct parties, because Gibson and Crosgrove were responsible for instituting the original proceedings against her. (3) She had ample evidence that the original prosecution was instituted without probable cause because Gibson failed to investigate Crosgrove until after she had been arrested and because the prosecutor dismissed the charges against her. (4) Finally, there were enough facts for the jury to infer that both Gibson and Crosgrove had acted with improper motive: Gibson had acted with an apparent bias against Hodges, and Crosgrove apparently had accused Hodges for self-preservation. The jury awarded Hodges a total of $88,000 in damages: $77,000 from Gibson, and $11,000 from Crosgrove. The verdict was upheld on appeal.

Damages: The plaintiff in an action for malicious prosecution can recover money from the defendant for certain harms suffered. Typical injuries include loss of reputation and credit, humiliation, and mental suffering. If the original action was a criminal case, additional harms often include discomfort, injury to health, loss of time, and deprivation of society with family.

If the plaintiff suffered an economic loss directly related to the original action, the plaintiff can also recover the amount lost. This amount includes attorneys' fees and court costs incurred by the plaintiff in defending the original case.

Finally, the plaintiff may recover Punitive Damages. Punitive damages are imposed by judges and juries to punish misconduct by a party. Because an action for malicious prosecution requires proof of improper intent on the part of the defendant, punitive damages commonly are awarded to malicious prosecution plaintiffs who win damages awards.

Other Considerations: Actions for malicious prosecution must compete against the public interest in allowing parties to pursue cases unfettered by the specter of a retaliatory case. Very few civil or criminal cases result in an action for malicious prosecution. This is because it is difficult to prove that the defendant procured or continued the original case without probable cause and with an improper purpose.

Another difficulty for the plaintiff in an action for malicious prosecution is immunity. Generally, the law protects witnesses, police officers, judges, prosecutors, and lawyers from suit for malicious prosecution. Witnesses are given immunity because justice requires that they testify without fear of reprisals. Law enforcement and judicial officers are given immunity because they must be free to perform their duties without continually defending against malicious prosecution cases.

There are exceptions, however. If a law enforcement or judicial official ventures outside the bounds of official duties to instigate or continue a malicious prosecution, the official may be vulnerable to a malicious prosecution suit. For example, a prosecutor who solicits fabricated testimony to present to a grand jury may be sued for malicious prosecution. The prosecutor would receive only limited immunity in this instance because the solicitation of evidence is an administrative function, not a prosecutorial function (Buckley v. Fitzsimmons, 509 U.S. 259, 113 S. Ct. 2606, 125 L. Ed. 2d 209 [1993]).

Private parties may also at times enjoy immunity from actions for malicious prosecution. For example, a person who complains to a disciplinary committee about an attorney may be immune. This general rule is followed by courts to avoid discouraging the reporting of complaints against attorneys.


malicious prosecution n. filing a lawsuit with the intention of creating problems for the defendant such as costs, attorneys fees, anguish, or distraction when there is no substantial basis for the suit. If the defendant in the lawsuit wins, and has evidence that the suit was filed out of spite and without any legal or factual foundation, he/she may, in turn, sue for damages against the person who filed the original action. If malice is clearly proved against the party who brought the original suit, punitive damages may be awarded along with special and general damages. In recent cases, courts have ruled that an attorney who knowingly assists a client in filing a worthless lawsuit out of malice or spite may be liable for damages along with the client. The suit by the victim to recover damages for a malicious prosecution cannot be filed until the original law suit is decided in favor of the victim.


malicious prosecution
noun indefensible prosecution, Kafka-like prosecution, malicious charges instituted by a prosecutor, malicious criminal enforcement, malicious pursuit by a law enforcement agency, prosecution maintained with venal intentions, prosecution without proper procedures, reprehensible prosecution, unconscionable prosecution, unconstitutional prosecution, underhanded prosecution, unfair prosecution, unjust and unfair pursuit of criminal charges, unjustifiable prosecution, unmerited prosecution, unprincipled prosecution, unscrupulous prosecution, unwarrantable prosecution, wrongful prosecution


MALICIOUS PROSECUTION, or MALICIOUS ARREST, torts, or remedies. These terms import a wanton prosecution or arrest, made by a prosecutor in a criminal proceeding, or a plaintiff in a civil suit, without probable cause, by a regular process and proceeding, which the facts did not warrant, as appears by the result.
     2. This definition will be analyzed by considering, 1. The nature of the prosecution or arrest. 2. Who is liable under it. 3. What are malice and probable cause. 4. The proceedings. 5. The result of the prosecution and afterwards, 6. The remedy.
     3.-Sec. 1. Where the defendant commenced a criminal prosecution wantonly and in other respects against law, he will be responsible. Addis. R. 270; 12 Conn. 219. The prosecution of a civil suit, when malicious, is a good cause of action, even when there has been no arrest. 1 P. C. C. 210; 11 Conn. 582; 1 Wend. 345. But no action lies for commencing a civil action, though without sufficient cause. 1 Penna. R. 235.
     4.-Sec. 2. The action lies against the prosecutor and even against a mere informer, when the proceedings are malicious. 5 Stew. & Port. 367. But grand jurors are not liable to an action for a malicious prosecution, for information given by them to their fellow jurors, on which a prosecution is founded. Hardin, 556. Such action lies against a plaintiff in a civil action who maliciously sues out the writ and prosecutes it; 16 Pick. 453; but an action does not lie against an attorney at law for bringing the action, when regularly employed. 16 Pick. 478. See 6 Pick. 193.
     5.-Sec. 3. There must be malice and want of probable cause. 1 Wend. 140, 345; 7 Cowen, 281; 2 P. A. Browne, Appx. xlii; Cooke, 90; Litt. Sel. Cas. 106; 4 Litt. 334; 3 Gil. & John. 377; 1 N. & M. 36; 12 Conn. 219; 3 Call. 446; 2 Hall, 315; 3 Mason, 112, 2 N. & M. 54,143. See Malice; Probable cause.
     6.-Sec. 4. The Proceedings under which the original prosecution or action was held, must have been regular, in the ordinary course of justice, and before a tribunal having power to ascertain the truth or falsity of the charge, and to punish the supposed offender, the now plaintiff. 3 Pick. 379, 383. When the proceedings are irregular, the prosecutor is a trespasser. 3 Blackf. 210. See Regular and irregular process.
     7.-Sec. 5. The malicious prosecution or action must be ended, and the plaintiff must show it was groundless, either by his acquittal or by obtaining a final judgment in his favor in a civil action. 1 Root, R. 553; 1 N. & M. 36; 2 N. & M. 54, 143; 7 Cowen, 715; 2 Dev. & Bat. 492.
     8.-Sec. 6. The remedy for a malicious prosecution is an action on the case to recover damages for the injury sustained. 5 Stew. & Porter, 367; 2 Conn. 700; 11 Mass 500; 6 Greenl. 421; 3 Gill. & John. 377. See Case; Regular and irregular process.
     See, generally, Bull. N. P. 11; 1 Saund. 228; 12 Mod. 208; 1 T. R. 493 to 551; Bac. Ab. Actions on the case, H; Bouv. Inst. Index, h.t.


Vexatious Litigation                                                                                       

A legal action or proceeding initiated maliciously and without Probable Cause by an individual who is not acting in Good Faith for the purpose of annoying or embarrassing an opponent. The U.S. legal system permits persons to file civil lawsuits to seek redress for injuries committed by a defendant. However, a legal action that is not likely to lead to any practical result is classified as vexatious litigation. Such litigation is regarded as frivolous and will result in the dismissal of the action by the court. A person who has been subjected to vexatious litigation may sue the plaintiff for Malicious Prosecution, seeking damages for any costs and injuries associated with the original lawsuit.

Litigation is typically classified as vexatious when an attorney or a pro se litigant (a person representing himself without an attorney) repeatedly files groundless lawsuits and repeatedly loses. Under the Common Law, the frequent incitement of lawsuits by an attorney constituted the crime of Barratry. In modern law, however, barratry is viewed as an archaic crime and is rarely enforced. Attorneys who encourage vexatious litigation are subject to discipline for violating rules of professional conduct and may be suspended from the Practice of Law or disbarred.

Sometimes pro se litigants who have lost their initial lawsuits file new actions based on the dispute contained in the original suit. Because the judgment of the original case is dispositive, a court will ultimately dismiss these new actions. To avoid the expenditure of court resources, as well as the costs associated with the defendant's defense of repeated frivolous claims, a court may issue an order forbidding the pro se litigant to file any new actions without permission of the court.

Vexatious litigation is a type of malicious prosecution that enables the defendant to file a tort action against the plaintiff. A plaintiff in a malicious prosecution must prove that a legal proceeding (or multiple proceedings) was instituted by the defendant, that the original proceeding was terminated in favor of the plaintiff, that there was no probable cause for the original proceeding, and that malice, or a primary purpose other than that of bringing the original action, motivated the defendant. A plaintiff in such an action may recover, for example, the expenses incurred in defending the original suit or suits, as well as resulting financial loss or injury. A plaintiff may also recover damages for mental suffering of a kind that would normally be expected to follow from the original action.


vexatious litigation n. filing a lawsuit with the knowledge that it has no legal basis, with its purpose to bother, annoy, embarrass and cause legal expenses to the defendant. Vexatious litigation includes continuing a lawsuit after discovery of the facts shows it has absolutely no merit. Upon judgment for the defendant, he/she has the right to file a suit for "malicious prosecution" against the original vexatious plaintiff. Moreover, most states allow a judge to penalize a plaintiff and his/her attorney for filing or continuing a "frivolous" legal action with sanctions (money award to the defendant for the trouble and/or attorney fees).

Punitive damages                                                                                         

Monetary compensation awarded to an injured party that goes beyond that which is necessary to compensate the individual for losses and that is intended to punish the wrongdoer. Punitive Damages, also known as exemplary damages, may be awarded by the trier of fact (a jury or a judge, if a jury trial was waived) in addition to actual damages, which compensate a plaintiff for the losses suffered due to the harm caused by the defendant. Punitive damages are a way of punishing the defendant in a civil lawsuit and are based on the theory that the interests of society and the individual harmed can be met by imposing additional damages on the defendant. Since the 1970s, punitive damages have been criticized by U.S. business and insurance groups which allege that exorbitant punitive damage awards have driven up the cost of doing business.

Punitive damages have been characterized as "quasi-criminal" because they stand halfway between the criminal and Civil Law. Though they are awarded to a plaintiff in a private civil lawsuit, they are noncompensatory and in the nature of a criminal fine.

Punitive damages were first recognized in England in 1763 and were recognized by the American colonies almost immediately. By 1850, punitive damages had become a well-established part of civil law.

The purposes of punitive damages are to punish the defendant for outrageous misconduct and to deter the defendant and others from similar misbehavior in the future. The nature of the wrongdoing that justifies punitive damages is variable and imprecise. The usual terms that characterize conduct justifying these damages include bad faith, fraud, malice, oppression, outrageous, violent, wanton, wicked, and reckless. These aggravating circumstances typically refer to situations in which the defendant acted intentionally, maliciously, or with utter disregard for the rights and interests of the plaintiff.

Unless otherwise required by statute, the award of punitive damages is left to the discretion of the trier of fact. A small number of states refuse to award punitive damages in any action, and the remaining states have instituted various ways of determining when and how they are to be awarded. In some states, an award of nominal damages, which acknowledges that a legal right has been violated but little harm has been done, is an adequate foundation for the recovery of punitive damages. In other states, the plaintiff must be awarded Compensatory Damages before punitive damages are allowed.

Sending a Message or a Plaintiff's Windfall? Punitive damages are a controversial issue in tort and product liability law. Injured plaintiffs and their attorneys often seek punitive damages from companies that have made allegedly defective or unsafe products and have known about the defects or safety problems. Plaintiffs view punitive damages as a way of sending a message to the manufacturer and to business, in general, that it is financially unwise to cut corners or ignore safety concerns. On the other hand, defendants in these actions contend that punitive damages are unfair, unpredictable, and often excessive. In their view, the plaintiff receives a financial windfall unrelated to the actual damages in the lawsuit.

Proponents of punitive damages believe that this type of award serves a number of important societal functions, including retribution, deterrence, compensation, and law enforcement.

Supporters of punitive damages contend that one function for such an award is to provide retribution to the victim of the defendant's reckless or wanton conduct. When a person is injured by the wanton misconduct of another, the plaintiff has the right to express her outrage by extracting a judicial fine from the wrongdoer. Seeking retribution allows the plaintiff to punish an intentional lawbreaker in much the same way as the criminal justice system punishes him.

Proponents believe that the most important function that punitive damages serve is that of deterrence. As in Criminal Law, the predominant purpose of punitive damages is to prevent similar misconduct in the future. Because the law does not catch and punish all persons who wantonly violate the rights of others, supporters argue that punitive damages help deter misconduct by publicizing, and at times sensationalizing, the punishment of those persons found guilty of egregious misconduct. Punitive damages tell manufacturers and other businesses that financial penalties will follow if companies sell products known to be defective.

Advocates of punitive damage awards also contend that these awards serve a compensation function. Although a plaintiff may receive actual damages for the injuries suffered, many of the plaintiff's actual losses, including those involving intangible harm, are not compensable under the rules of compensatory damage liability. Punitive damages help the plaintiff to be made whole again.

Another function of punitive damages articulated by supporters is law enforcement. Without the prospect of a large punitive damage windfall, many persons would not be willing to make their claims. Punitive damages act as a law enforcement vehicle, energizing prospective plaintiffs and motivating them to enforce the rules of law and to promote the functions of retribution, deterrence, and compensation.

Critics of punitive damages believe that large monetary awards are unfair, unreasonable, and not productive for society. One of their central criticisms goes to the idea of punitive damages as "quasi-criminal" punishments. Noting that proponents talk of retribution and deterrence, these critics argue that it is unfair to impose these "criminal" fines on defendants who do not have the usual safeguards of Criminal Procedure. They note that a plaintiff should satisfy a higher Burden of Proof than a mere "preponderance of the evidence," the usual standard in a civil trial. Some states have agreed, mandating that "clear and convincing evidence," a higher burden of proof, be used by the jury in determining whether to award punitive damages.

Critics also charge that the vagueness of standards for determining the defendant's liability for punitive damages and for calculating the award itself causes juries to make decisions based on passion, bias, and prejudice rather than on the law. The vagueness in such terms as reckless, willful, or wanton leads critics to conclude that juries have no meaningful, objective way to make an informed decision. Many states have recognized this criticism and developed a variety of procedures to instruct the jury fully and precisely and to require the trial court to assess the sufficiency of the evidence before awarding punitive damages and to issue written reasons why the award was or was not deserved in light of the legal standards.

The U.S. Supreme Court, in BMW of North America v. Gore, 517 U.S. 519, 116 S. Ct. 1589, 134 L. Ed. 2d 809 (1996), also developed guidelines for assessing punitive damages. The Court held that the "degree of reprehensibility of defendant's conduct" is the most important indication of reasonableness in measuring punitive damages. The Court also measured the possible excessiveness of a punitive damage award by applying a ratio between the plaintiff's Compensatory Damages and the amount of the punitive damages.

Critics also note that the deterrence rationale is undercut when defendants are insured against punitive damage awards. In addition, when a government employee is found liable for misconduct and punitive damages are awarded, the taxpayers must pay for the award. Taxpayers are innocent parties, making it unreasonable for them to bear the punishment for the actions of a government employee.

Critics argue that because punitive damages are noncompensatory, they provide the plaintiff with an undeserved financial windfall. The public gains no benefit when an individual receives a multimillion dollar punitive damage verdict. Some states have responded to this criticism by requiring that part of a punitive damage award be paid to the state for some type of public good.

Finally, in mass disaster cases, involving products like asbestos, a manufacturer may have to pay multiple punitive damage awards. Critics contend that allowing punitive damages to early plaintiffs may bankrupt defendants, thereby depriving later plaintiffs of compensatory damages.

For these and other reasons, the critics see punitive damages as counterproductive to the public good. Large awards result in increased costs of products and services and even discourage companies from producing products or providing services out of fear of litigation.

The controversy over punitive damages is likely to continue because it involves fundamental issues of justice, fairness, and the public good.

In the absence of statutory authorization, punitive damages usually cannot be recovered in breach-of-contract actions. Punitive damages are sometimes recoverable in tort actions in which breach of contract is tangentially involved.

Punitive damages will not be awarded in tort actions based on the defendant's Negligence alone. The conduct must have been willful, wanton, or reckless to constitute an intentional offense. Willfulness implies a plan, purpose, or intent to commit a wrongdoing and cause an injury. For example, if an automobile manufacturer knows that the gas tank in its car will likely explode on impact but does not change the design because it does not wish to incur additional costs, the behavior could be classified as willful. Conduct is considered wanton if the individual performing the act is cognizant that it is likely to cause an injury, even though Specific Intent to harm someone does not exist, such as when an individual shoots a gun into a crowd. Although the individual does not have the intent to injure anyone in particular, injury is a natural and probable consequence of the act. Recklessness is an act performed with total disregard of its foreseeable harmful consequences. Punitive damages can be awarded on the basis of an injurious act done with ill will, a wrongful or illegal motive, or without any legal justification, but a wrongful act performed in Good Faith is an inadequate basis for such an award. For example, if a grocery sold canned goods that later turned out to be tainted, and the store did not know of the problem before selling the canned goods, it would be liable for compensatory damages to the victims who ate the food but would not be liable for punitive damages.

The measurement of punitive damages has been controversial because, traditionally, the amount to be awarded is, for the most part, within the discretion of the trier of fact. To determine the amount, the jury or court must consider the nature of the wrongdoer's behavior, the extent of the plaintiff's loss or injury, and the degree to which the defendant's conduct is repugnant to a societal sense of justice and decency. In some states, the financial worth of the defendant can properly be considered.

Ordinarily, an award of punitive damages by a jury will not be upset as excessive or inadequate. If the trial court believes that the jury award is excessive or unwarranted by the facts, it can remove punitive damages from the final judgment, or it can reduce the amount through a procedural process called remittitur.

Since the 1980s, appellate courts have been called on to review punitive damage awards and to assess the procedural fairness involved in awarding such damages. State legislatures and the courts have attempted to craft ways of ensuring reasonable punitive damage awards, but there is no uniform approach.

The U.S. Supreme Court, in Pacific Mutual Life Insurance v. Haslip, 499 U.S. 1, 111 S. Ct. 1032, 113 L. Ed. 2d 1 (1991), upheld a large punitive damage award on the grounds that the Alabama jury had received adequate jury instructions and the Alabama Supreme Court had applied a seven-factor test to assess the reasonableness of the award.

Two years later, the U.S. Supreme Court shifted its stance on how it would assess whether a punitive damage award was excessive. In TXO Productions Corp. v. Alliance Resources Corp., 509 U.S. 443, 113 S. Ct. 2711, 125 L. Ed. 2d 366 (1993), the Court stated that the due process clause of the Fourteenth Amendment to the U.S. Constitution prohibits a state from imposing a "grossly excessive" punishment on a person held liable in tort. Whether a verdict is grossly excessive must be based on an identification of the state interests that a punitive award is designed to serve. If the award is disproportionate to the interests served, it violates due process.

The Court further defined the issues surrounding excessive awards in BMW of North America v. Gore, 517 U.S. 559, 116 S. Ct. 1589, 134 L. Ed. 2d 809 (1996). In this case, the plaintiff, Ira Gore, was sold a purportedly new automobile. In fact, the car had been repainted because of damage during shipping. When Gore found out, he sued BMW. During the litigation, he discovered that for many years BMW had routinely repainted cars and sold them as new. The jury awarded Gore $4,000 in compensatory damages and punitive damages of $4 million. The Alabama Supreme Court reduced the punitive damages to $2 million but upheld the reduced award.

On appeal, the U.S. Supreme Court overturned the punitive damage award. First, the Court identified the "degree of reprehensibility of defendant's conduct" as the most important indication of reasonableness in measuring a punitive damage award under the Due Process Clause. In the Court's view, the damages imposed should reflect the enormity of the defendant's offense and may not be grossly out of proportion to the severity of the offense. In Gore's case, the award was excessive because BMW's conduct did not demonstrate indifference or reckless disregard for the health and safety of others. The minor repairs it made to the cars did not affect their performance, safety features, or appearance.

Second, the Court applied the most commonly used indicator of excessiveness, the ratio between the plaintiff's compensatory damages and the amount of the punitive damages. Even though the state court reduced the punitive damages by half, the Court found the ratio of 500 to 1 to be outside the acceptable range.

Finally, the Court examined the difference between the punitive damage award and the civil or criminal sanctions that Alabama could impose for comparable misconduct. The fact that the $2 million verdict was substantially greater than Alabama's $2,000 civil fine for deceptive trade practices was another ground for finding the punitive damages excessive, according to the Court.

This decision had important consequences in civil litigation. The decision "sent a message" about punitive damages to the lower courts, strongly implying that they should do more to rein in juries that award excessive amounts. Courts have the power to reduce or throw out punitive damages. In the wake of BMW, many federal courts carefully applied the Supreme Court's standards and reduced punitive damages awards. State courts have been less uniform in following these standards, with some courts distinguishing the decision in order to sustain large punitive awards. However, in 2003, the Supreme Court reaffirmed the BMW decision and three-part analysis in State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 123 S. Ct. 1513, 155 L. Ed. 2d 585. The court made clear that state courts must employ this analysis or risk reversal.

Though the decision reassured some in the insurance industry, the industry has continued to pursue "tort reform" legislation at the state and federal level. President george w. bush proposed his own tort reform package in 2002, which included a limit on punitive damages. This proposal would cap punitive damages at whichever is less: $250,000 or twice the economic damages.


punitive damages n. (synonymous with exemplary damages), damages awarded in a lawsuit as a punishment and example to others for malicious, evil or particularly fraudulent acts.


punitive damages
noun award for wrongdoing, award to deter similar conduct, award to punish the defendant, compensation for wrongdoing, penalty for wrongdoing, recovery for highly offensive conduct, recovery for improper action, retributive damages

Defamation                                                                                                

Any intentional false communication, either written or spoken, that harms a person's reputation; decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person.

 Defamation may be a criminal or civil charge. It encompasses both written statements, known as libel, and spoken statements, called slander.

The probability that a plaintiff will recover damages in a defamation suit depends largely on whether the plaintiff is a public or private figure in the eyes of the law. The public figure law of defamation was first delineated in new york times v. sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). In Sullivan, the plaintiff, a police official, claimed that false allegations about him appeared in the New York Times, and sued the newspaper for libel. The Supreme Court balanced the plaintiff's interest in preserving his reputation against the public's interest in freedom of expression in the area of political debate. It held that a public official alleging libel must prove actual malice in order to recover damages. The Court declared that the First Amendment protects open and robust debate on public issues even when such debate includes "vehement, caustic, unpleasantly sharp attacks on government and public officials." A public official or other plaintiff who has voluntarily assumed a position in the public eye must prove that defamatory statements were made with knowledge that they were false or with reckless disregard of whether they were false.

Where the plaintiff in a defamation action is a private citizen who is not in the public eye, the law extends a lesser degree of constitutional protection to defamatory statements. Public figures voluntarily place themselves in a position that invites close scrutiny, whereas private citizens who have not entered public life do not relinquish their interest in protecting their reputation. In addition, public figures have greater access to the means to publicly counteract false statements about them. For these reasons, a private citizen's reputation and privacy interests tend to outweigh free speech considerations and deserve greater protection from the courts. (See Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 [1974]).

Distinguishing between public and private figures for the purposes of defamation law is sometimes difficult. For an individual to be considered a public figure in all situations, the person's name must be so familiar as to be a household word—for example, Michael Jordan. Because most people do not fit into that category of notoriety, the Court recognized the limited-purpose public figure, who is voluntarily injected into a public controversy and becomes a public figure for a limited range of issues. Limited-purpose public figures, like public figures, have at least temporary access to the means to counteract false statements about them. They also voluntarily place themselves in the public eye and consequently relinquish some of their privacy rights. For these reasons, false statements about limited-purpose public figures that relate to the public controversies in which those figures are involved are not considered defamatory unless they meet the actual-malice test set forth in Sullivan.

Determining who is a limited-purpose public figure can also be problematic. In Time, Inc. v. Firestone, 424 U.S. 448, 96 S. Ct. 958, 47 L. Ed. 2d 154 (1976), the Court held that the plaintiff, a prominent socialite involved in a scandalous Divorce, was not a public figure because her divorce was not a public controversy and because she had not voluntarily involved herself in a public controversy. The Court recognized that the divorce was newsworthy, but drew a distinction between matters of public interest and matters of public controversy. In Hutchinson v. Proxmire, 443 U.S. 111, 99 S. Ct. 2675, 61 L. Ed. 2d 411 (1979), the Court determined that a scientist whose federally supported research was ridiculed as wasteful by Senator William Proxmire was not a limited-purpose public figure because he had not sought public scrutiny in order to influence others on a matter of public controversy, and was not otherwise well-known.


defamation (of character) n. the act of making untrue statements about another which damages his/her reputation. If the defamatory statement is printed or broadcast over the media it is libel and, if only oral, it is slander. Public figures, including officeholders and candidates have to show that the defamation was made with malicious intent and was not just fair comment. Damages for slander may be limited to actual (special) damages unless there is malice. Some statements such as an accusation of having committed a crime, having a feared disease, or being unable to perform one's occupation are called libel per se or slander and can more easily lead to large money awards in court and even punitive damage recovery by the person harmed. Most states provide for a demand for a printed retraction of defamation and only allow a lawsuit if there is no such admission of error.

Tort Law                                                                                                  

A body of rights, obligations, and remedies that is applied by courts in civil proceedings to provide relief for persons who have suffered harm from the wrongful acts of others. The person who sustains injury or suffers pecuniary damage as the result of tortious conduct is known as the plaintiff, and the person who is responsible for inflicting the injury and incurs liability for the damage is known as the defendant or tortfeasor.

Three elements must be established in every tort action. First, the plaintiff must establish that the defendant was under a legal duty to act in a particular fashion. Second, the plaintiff must demonstrate that the defendant breached this duty by failing to conform his or her behavior accordingly. Third, the plaintiff must prove that he suffered injury or loss as a direct result of the defendant's breach.

The law of torts is derived from a combination of common-law principles and legislative enactments. Unlike actions for breach of contract, tort actions are not dependent upon an agreement between the parties to a lawsuit. Unlike criminal prosecutions, which are brought by the government, tort actions are brought by private citizens. Remedies for tortious acts include money damages and injunctions (court orders compelling or forbidding particular conduct). Tortfeasors are subject to neither fine nor incarceration in civil court.

The word tort comes from the Latin term torquere, which means "twisted or wrong." The English Common Law recognized no separate legal action in tort. Instead, the British legal system afforded litigants two central avenues of redress: Trespass for direct injuries, and actions "on the case" for indirect injuries. Gradually, the common law recognized other civil actions, including Defamation, libel, and slander. Most of the American colonies adopted the English common law in the eighteenth century. During the nineteenth century, the first U.S. legal treatises were published in which a portion of the common law was synthesized under the heading of torts.

Over the last century, tort law has touched on nearly every aspect of life in the United States. In economic affairs, tort law provides remedies for businesses that are harmed by the unfair and deceptive trade practices of a competitor. In the workplace, tort law protects employees from the intentional or negligent infliction of emotional distress. Tort law also helps regulate the environment, providing remedies against both individuals and businesses that pollute the air, land, and water to such an extent that it amounts to a Nuisance.

Sometimes tort law governs life's most intimate relations, as when individuals are held liable for knowingly transmitting communicable diseases to their sexual partners. When a loved one is killed by a tortious act, surviving family members may bring a Wrongful Death action to recover pecuniary loss. Tort law also governs a wide array of behavior in less intimate settings, including the operation of motor vehicles on public roadways.

The law of torts serves four objectives. First, it seeks to compensate victims for injuries suffered by the culpable action or inaction of others. Second, it seeks to shift the cost of such injuries to the person or persons who are legally responsible for inflicting them. Third, it seeks to discourage injurious, careless, and risky behavior in the future. Fourth, it seeks to vindicate legal rights and interests that have been compromised, diminished, or emasculated. In theory these objectives are served when tort liability is imposed on tortfeasors for intentional wrongdoing, Negligence, and ultrahazardous activities.

Intentional Torts: An intentional tort is any deliberate interference with a legally recognized interest, such as the rights to bodily integrity, emotional tranquility, dominion over property, seclusion from public scrutiny, and freedom from confinement or deception. These interests are violated by the intentional torts of assault, Battery, trespass, False Imprisonment, invasion of privacy, conversion, Misrepresentation, and Fraud. The intent element of these torts is satisfied when the tortfeasor acts with the desire to bring about harmful consequences and is substantially certain that such consequences will follow. Mere reckless behavior, sometimes called willful and wanton behavior, does not rise to the level of an intentional tort.

Under certain circumstances the law permits individuals to intentionally pursue a course of conduct that will necessarily result in harm to others. The harm that results from such conduct is said to be outweighed by more important interests. Self-preservation is one such interest and is embodied in the right of Self-Defense. Individuals may exert sufficient force in self-defense

to repel an imminent threat of bodily harm. Deadly Force may only be used by persons who reasonably believe that their lives are endangered and for whom there are no reasonable means of escape. Reasonable force, but not deadly force, may be employed in defense of property.

Consent is a defense to virtually every intentional tort. The law will not compensate persons who knowingly allow someone to injure them. However, consent must be given freely and voluntarily to be effective. Consent induced by coercion, duress, Undue Influence, or chicanery is not legally effective. Nor is consent legally effective when given by an incompetent person. Consent to intentional torts involving grievous bodily harm is also deemed ineffective in a number of jurisdictions.

Negligence:Most injuries that result from tortious behavior are the product of negligence, not intentional wrongdoing. Negligence is the term used by tort law to characterize behavior that creates unreasonable risks of harm to persons and property. A person acts negligently when his behavior departs from the conduct ordinarily expected of a reasonably prudent person under the circumstances. In general, the law requires jurors to use their common sense and life experience in determining the proper degree of care and vigilance with which people must lead their lives to avoid imperiling the safety of others.

Not every accident producing injury gives rise to liability for negligence. Some accidents cannot be avoided even with the exercise of reasonable care. An accident that results from a defendant's sudden and unexpected physical ailment, such as a seizure or a blackout, generally relieves the defendant of liability for harm caused during his period of unconsciousness. However, defendants who have reason to know of such medical problems are expected to take reasonable precautions against the risks the problems create. In some jurisdictions unavoidable accidents are called acts of god.

Assumption of Risk is another defense to negligence actions. This defense prevents plaintiffs from recovering for injuries sustained as a result of a relationship or transaction they entered with full knowledge and acceptance of the risks commonly associated with such undertakings. Assumed risks include most of those encountered by spectators attending sporting events. However, the law will not assume that individuals accept the risk of intentionally inflicted harm or damage, such as injuries resulting from Assault and Battery.

Strict Liability: In some cases tort law imposes liability on defendants who are neither negligent nor guilty of intentional wrongdoing. Known as Strict Liability, or liability without fault, this branch of torts seeks to regulate those activities that are useful and necessary but that create abnormally dangerous risks to society. These activities include blasting, transporting hazardous materials, storing dangerous substances, and keeping certain wild animals in captivity.

A distinction is sometimes drawn between moral fault and legal fault. Persons who negligently or intentionally cause injury to others are often considered morally blameworthy for having failed to live up to a minimal threshold of human conduct. On the other hand, legal fault is more of an artificial standard of conduct that is created by government for the protection of society.

Persons who engage in ultrahazardous activities may be morally blameless because no amount of care or diligence can make their activities safe for society. However, such persons will nonetheless be held legally responsible for harm that results from their activities as a means of shifting the costs of injury from potential victims to tortfeasors. As a matter of social policy, then, individuals and entities that engage in abnormally dangerous activities for profit must be willing to ensure the safety of others as a price of doing business.

Consumers who have been injured by defectively manufactured products also rely on strict liability. Under the doctrine of strict Product Liability, a manufacturer must guarantee that its goods are suitable for their intended use when they are placed on the market for public consumption. The law of torts will hold manufacturers strictly liable for any injuries that result from placing unreasonably dangerous products into the stream of commerce, without regard to the amount of care exercised in preparing the product for sale and distribution and without regard to whether the consumer purchased the product from, or entered into a contractual relationship with, the manufacturer.

Causation: Causation is an element common to all three branches of torts: strict liability, negligence, and intentional wrongs. Causation has two prongs. First, a tort must be the cause in fact of a particular injury, which means that a specific act must actually have resulted in injury to another. In its simplest form, cause in fact is established by evidence that shows that a tortfeasor's act or omission was a necessary antecedent to the plaintiff's injury. Courts analyze this issue by determining whether the plaintiff's injury would have occurred "but for" the defendant's conduct. If an injury would have occurred independent of the defendant's conduct, cause in fact has not been established, and no tort has been committed. When multiple factors have led to a particular injury, the plaintiff must demonstrate that the tortfeasor's action played a substantial role in causing the injury.

Second, plaintiffs must establish that a particular tort was the proximate cause of an injury before liability will be imposed. The term proximate cause is somewhat misleading because it has little to do with proximity or causation. Proximate cause limits the scope of liability to those injuries that bear some reasonable relationship to the risk created by the defendant. Proximate cause is evaluated in terms of foresee-ability. If the defendant should have foreseen the tortious injury, he or she will be held liable for the resulting loss. If a given risk could not have been reasonably anticipated, proximate cause has not been established, and liability will not be imposed.

When duty, breach, and proximate cause have been established in a tort action, the plaintiff may recover damages for the pecuniary losses sustained. The measure of damages is determined by the nature of the tort committed and the type of injury suffered. Damages for tortious acts generally fall into one of four categories: damages for injury to person, damages for injury to Personal Property, damages for injury to real property, and Punitive Damages.

Damages: Personal injury tort victims must normally recover all their damages—past, present, and future—during a single lawsuit. Damages may be recovered for physical, psychological, and emotional injury. Specifically, these injuries may include permanent disability, pain and suffering, disfigurement, humiliation, embarrassment, distress, impairment of earning capacity, lost wages or profits, medical costs, and out-of-pocket expenses. Courts typically rely on Expert Testimony to translate such losses into dollar figures.

Plaintiffs suffering damage to personal property must elect between two methods of recovery. First, plaintiffs may elect to recover the difference between the value of the property before the tort and the value of the property after it. Second, plaintiffs may elect to recover the reasonable costs of repair for damaged personal property. However, if the property is destroyed, irreparable, or economically infeasible to repair, damages are measured by the replacement value of the property. Persons who are temporarily deprived of personalty may sue to recover the rental value of the property for the period of deprivation.

Damages for injury to real property may be measured by the difference in the realty's value before and after the tort. Alternatively, plaintiffs may elect to recover the reasonable costs of restoring the property to its original condition. In either case plaintiffs may also recover the rental value of their property if its use and enjoyment has been interrupted by tortious behavior. Mental, emotional, and physical harm that is sustained in the process of a tortious injury to real property is compensable as well.

Punitive damages, called exemplary damages in some jurisdictions, are recoverable against tortfeasors whose injurious conduct is sufficiently egregious. Although punitive damages are typically awarded for injuries suffered from intentional torts, they can also be awarded against tortfeasors who act with reckless indifference to the safety of others. Because one purpose of punitive damages is to punish the defendant, plaintiffs may introduce evidence regarding a tortfeasor's wealth to allow the jury to better assess the amount of damages necessary for punishment. Such evidence is normally deemed irrelevant or prejudicial in almost every other type of damage claim.

In addition to damages for past tortious conduct, plaintiffs may seek injunctive relief to prevent future harm. Manufacturing plants that billow smoke that pollutes the air, companies that discharge chemicals that poison the water, and factories that store chemicals that migrate through the soil create risks of injury that are likely to recur over time. In tort law, operations that produce recurring injuries like these are called nuisances. If the harmfulness of such operations outweighs their usefulness, plaintiffs may successfully obtain a court order enjoining or restraining them.

Immunity: Certain individuals and entities are granted Immunity from both damage awards and assessments of liability in tort. An immunity is a defense to a legal action where public policy demands special protection for an entity or a class of persons participating in a particular field or activity. Historically, immunity from tort litigation has been granted to government units, public officials, charities, educational institutions, spouses, parents, and children.

Government immunity, also known as Sovereign Immunity, insulates federal, state, and local governments from liability for torts that an employee commits within the scope of his or her official duties. Public policy, as reflected by legislation, common-law precedent, and popular opinion, has required courts to protect the government from unnecessary disruptions that invariably result from civil litigation. Similarly, educational institutions generally have been immunized from tort actions to protect students and faculty from distraction.

In a number of states, tortfeasors have been given immunity from liability if they are related to the victim as husband or wife, or parent or child. These states concluded that family harmony should not be traumatized by the adversarial nature of tort litigation. Charities and other philanthropic organizations have been given qualified immunity from tort liability as well. This immunity is based on the fear that donors would stop giving money to charities if the funds were used to pay tort claims.

Over the last quarter century, nearly every jurisdiction has curtailed tort immunity in some fashion. Several jurisdictions have abolished tort immunity for entire groups and entities. The movement to restrict tort immunity has been based in part on the Rule of Law, which requires all persons, organizations, and government officials to be treated equally under the law. Despite the efforts of this movement, tort immunity persists in various forms at the federal, state, and local levels.

Tort Reform Initiatives: The damages recovered by those injured as a result of a tortious act of another are often paid for by insurance companies. This is particularly true in Medical Malpractice cases. Doctors must pay significant medical liability insurance premiums in order to stay in business. When a doctor commits Malpractice, the patient may receive an award of hundreds of thousands of dollars to millions of dollars. As insurance companies continue to pay these hefty awards, the rates for insurance premiums often rise sharply.

The medical profession and medical liability insurance companies have engaged in a nationwide campaign to place limitations on the amount of damages that a patient who has been subject to medical malpractice can recover. Under the guise of "tort reform," supporters advocate placing limitations on the recovery of noneconomic damages, including pain and suffering and loss of consortium. In 1975, California enacted the Medical Injury Compensation Reform Act, which limits recovery of noneconomic damages at $250,000 and restricts the amount of fees that may be recovered by lawyers. California's law has served as a model for six other states that have adopted similar tort-reform bills. Other state legislatures have considered similar tort-reform initiatives.

President george w. bush has advocated federal legislation that would place a $250,000 cap on noneconomic damages at the national level. According to Bush, the federal government spends $28 billion per year on medical liability insurance costs and defensive medical costs. Opponents of such a measure claim that many of the problems associated with insurance costs are the result of poor business practices by insurance companies. Opponents also maintain that capping damages for pain and suffering restricts the ability of patients to recover only an Arbitrary amount from a negligent doctor. Supporters of the initiative claim that capping damages will lower medical costs to the general population.


Defamation                                                                                                

Any intentional false communication, either written or spoken, that harms a person's reputation; decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person. Defamation may be a criminal or civil charge. It encompasses both written statements, known as libel, and spoken statements, called slander. The probability that a plaintiff will recover damages in a defamation suit depends largely on whether the plaintiff is a public or private figure in the eyes of the law. The public figure law of defamation was first delineated in new york times v. sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). In Sullivan, the plaintiff, a police official, claimed that false allegations about him appeared in the New York Times, and sued the newspaper for libel. The Supreme Court balanced the plaintiff's interest in preserving his reputation against the public's interest in freedom of expression in the area of political debate. It held that a public official alleging libel must prove actual malice in order to recover damages. The Court declared that the First Amendment protects open and robust debate on public issues even when such debate includes "vehement, caustic, unpleasantly sharp attacks on government and public officials." A public official or other plaintiff who has voluntarily assumed a position in the public eye must prove that defamatory statements were made with knowledge that they were false or with reckless disregard of whether they were false.

Where the plaintiff in a defamation action is a private citizen who is not in the public eye, the law extends a lesser degree of constitutional protection to defamatory statements. Public figures voluntarily place themselves in a position that invites close scrutiny, whereas private citizens who have not entered public life do not relinquish their interest in protecting their reputation. In addition, public figures have greater access to the means to publicly counteract false statements about them. For these reasons, a private citizen's reputation and privacy interests tend to outweigh free speech considerations and deserve greater protection from the courts. (See Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 [1974]).

Distinguishing between public and private figures for the purposes of defamation law is sometimes difficult. For an individual to be considered a public figure in all situations, the person's name must be so familiar as to be a household word—for example, Michael Jordan. Because most people do not fit into that category of notoriety, the Court recognized the limited-purpose public figure, who is voluntarily injected into a public controversy and becomes a public figure for a limited range of issues. Limited-purpose public figures, like public figures, have at least temporary access to the means to counteract false statements about them. They also voluntarily place themselves in the public eye and consequently relinquish some of their privacy rights. For these reasons, false statements about limited-purpose public figures that relate to the public controversies in which those figures are involved are not considered defamatory unless they meet the actual-malice test set forth in Sullivan.

Determining who is a limited-purpose public figure can also be problematic. In Time, Inc. v. Firestone, 424 U.S. 448, 96 S. Ct. 958, 47 L. Ed. 2d 154 (1976), the Court held that the plaintiff, a prominent socialite involved in a scandalous Divorce, was not a public figure because her divorce was not a public controversy and because she had not voluntarily involved herself in a public controversy. The Court recognized that the divorce was newsworthy, but drew a distinction between matters of public interest and matters of public controversy. In Hutchinson v. Proxmire, 443 U.S. 111, 99 S. Ct. 2675, 61 L. Ed. 2d 411 (1979), the Court determined that a scientist whose federally supported research was ridiculed as wasteful by Senator William Proxmire was not a limited-purpose public figure because he had not sought public scrutiny in order to influence others on a matter of public controversy, and was not otherwise well-known.

defamation (of character) n. the act of making untrue statements about another which damages his/her reputation. If the defamatory statement is printed or broadcast over the media it is libel and, if only oral, it is slander. Public figures, including officeholders and candidates have to show that the defamation was made with malicious intent and was not just fair comment. Damages for slander may be limited to actual (special) damages unless there is malice. Some statements such as an accusation of having committed a crime, having a feared disease, or being unable to perform one's occupation are called libel per se or slander and can more easily lead to large money awards in court and even punitive damage recovery by the person harmed. Most states provide for a demand for a printed retraction of defamation and only allow a lawsuit if there is no such admission of error.

defamation noun abuse, aspersion, calumniation, calumny, denigration, derogation, detraction, disparagement, disrepute, false accusation, false publication, false report, imputation, infamy, insinuation, invective, libel, obloquy, scandal, slander, slur, smear, smirch, traducement, untruth
Associated concepts: defamation against title, defamation of business or profession, defamation of character, defamation per quod, defamation per se, defamatory publication, defamatory upon its face, defamatory words, injury to charrcter or reputation, injury to profession or business
Foreign phrases: Inveniens libellum famosum et non corrumpens punitur.A person who finds a libel and does not destroy it is punished.

DEFAMATION, tort. The speaking slanderous words of a person so as, de bona fama aliquid detrahere, to hurt his good fame. Vide Slander.
     2. In the United States, the remedy for defamation is by an action on the case, where the words are slanderous.
     3. In England, besides the remedy by action, proceedings may be instituted in the ecclesiastical court for redress of the injury. The punishment for defamation, in this court, is payment of costs and penance enjoined at the discretion of the judge. When the slander has been privately uttered, the penance may be ordered to be performed in a private place; when publicly uttered, the sentence must be public, as in the church of the parish of the defamed party, in time of divine service,, and the defamer may be required publicly to pronounce that by such words, naming them, as set forth in the sentence, he had defamed the plaintiff, and, therefore, that he begs pardon, first, of God, and then of the party defamed, for uttering such words. Clerk's Assist. 225; 3 Burn's Eccl. Law, Defamation, pl. 14; 2 Chit. Pr. 471 Cooke on Def.

 

Seizure                                                                                                    
Forcible possession; a grasping, snatching, or putting in possession. In Criminal Law, a seizure is the forcible taking of property by a government law enforcement official from a person who is suspected of violating, or is known to have violated, the law. A Search Warrant usually must be presented to the person before his property is seized, unless the circumstances of the seizure justify a warrantless Search and Seizure. For example, the police may seize a pistol in the coat pocket of a person arrested during a Robbery without presenting a warrant because the search and seizure is incident to a lawful arrest. Certain federal and state laws provide for the seizure of particular property that was used in the commission of a crime or that is illegal to possess, such as explosives used in violation of federal law or illegal narcotics.

In the law of civil practice, the term refers to the act performed by an officer of the law under court order when she takes into custody the property of a person against whom a court has rendered a judgment to pay a certain amount of money to another. The property is seized so that it can be sold under the authority of the court to satisfy the judgment. Property can also be seized if a substantial likelihood exists that a defendant is concealing or removing property from the jurisdiction of the court so that in the event a judgment is rendered against her, the property cannot be used to pay the judgment. By attaching or seizing a defendant's property, the court prevents her from perpetrating a Fraud on the courts.

seizure n. the taking by law enforcement officers of potential evidence in a criminal case. The constitutional limitations on seizure are the same as for search. Thus, evidence seized without a search warrant or without "probable cause" to believe a crime has been committed and without time to get a search warrant, cannot be admitted in court, nor can evidence traced through the illegal seizure. (See: search and seizure, search warrant, fruit of the poisonous tree)
Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved.
See also: adverse possession, apprehension, appropriation, arrest, arrogation, assault, disseisin, forfeiture, garnishment, infringement, levy, occupation, onset, plunder, possession, sequestration, taking

SEIZURE, practice. The act of taking possession of the property of a person condemned by the judgment of a competent tribunal, to pay a certain sum of money, by a sheriff, constable, or other officer, lawfully authorized thereto, by virtue of an execution, for the purpose of having such property sold according to law to satisfy the judgment. By seizure is also meant the taking possession of goods for a violation of a public law; as the taking possession of a ship for attempting an illicit trade. 2 Cranch, 18 7; 6 Cowen, 404; 4 Wheat. 100; 1 Gallis. 75; 2 Wash. C. C. 127, 567.
     2. The seizure is complete as soon as the goods are within the power of the officer. 3 Rawle's Rep. 401; 16 Johns. Rep. 287; 2 Nott & McCord, 392; 2 Rawle's Rep. 142; Wats. on Sher. 172; Com. Dig. Execution, C 5.
     3. The taking of part of the goods in a house, however, by virtue of a fieri facias in the name of the whole, is a good seizure of all. 8 East, R. 474. As the seizure must be made by virtue of an execution, it is evident that it cannot be made after the return day. 2 Caine's Rep. 243; 4 John. R. 450. Vide Door; House; Search Warrant.


Forfeiture                                                                                                 
The involuntary relinquishment of money or property without compensation as a consequence of a breach or nonperformance of some legal obligation or the commission of a crime. The loss of a corporate charter or franchise as a result of illegality, malfeasance, or Nonfeasance. The surrender by an owner of his or her entire interest in real property, mandated by law as a punishment for illegal conduct or Negligence. Under old English Law, the release of land by a tenant to the tenant's lord due to some breach of conduct, or the loss of goods or chattels (articles of Personal Property) assessed as a penalty against the perpetrator of some crime or offense and as a recompense to the injured party.

Forfeiture is a broad term that can be used to describe any loss of property without compensation. A forfeiture may be privately arranged. For example, in a contractual relationship, one party may be required to forfeit specified property if the party fails to fulfill its contractual obligations. Courts are often called upon to resolve disputes regarding a forfeiture of property pursuant to a private contract. They may examine these cases to see whether they are fair and not the result of duress, deception, or other nefarious tactics.

The forfeitures that inspire the most discussion in the U.S. are those that are exercised by the state or federal government. Congress and state legislatures maintain statutes that allow law enforcement to seize property on suspicion of certain criminal activity. The property can be forfeited to the government upon conviction. In many cases, forfeiture to the government occurs without criminal prosecution.

The general concept of forfeiture in the United States can be traced to the English Common Law, or court decisions. English courts recognized three types of forfeiture: Escheat upon attainder, deodand, and statutory forfeiture. Under the doctrine of escheat upon attainder, a person's property reverted to the government upon that person's conviction for a felony or Treason. This doctrine was premised on the theory that the sovereign government possessed a superior property interest.

The doctrine of deodand, or guilty property, allowed English courts to strip a person of property if the property was involved in a certain offense. This doctrine allowed a court to seize property regardless of the owner's culpability. For example, if a horse caused the death of a person, the owner would lose that horse, even if he had been completely blameless.

Statutory forfeiture, or forfeiture based on written laws, was the only kind of English forfeiture recognized in the American colonies. In other words, the colonies did not order the forfeiture of property unless it was required pursuant to a law passed by the legislature. However, the written laws in the colonies sustained the concept of deodand, and this concept survives to the present day.

Although forfeiture laws have existed in the United States since the colonial period, they have not always been favored. Early cases of forfeiture usually involved extraordinary circumstances, such as the seizure of pirate ships or warring ships. After the Civil War, forfeitures were used for tax-revenue violations, but government-imposed forfeiture was a rarity.

In 1970, Congress enacted the Comprehensive Drug Abuse Prevention and Control Act (21U.S.C.A. § 881), also known as the Forfeiture Act. The Forfeiture Act authorized federal prosecutors to bring civil forfeiture actions against certain properties that were owned by persons who had been convicted in federal court of dealing drugs. This act was seldom used because it limited forfeiture to the property of persons who had been convicted of participating in continuing criminal enterprises.

In 1978, Congress amended the Forfeiture Act to allow the forfeiture of anything of value used or that was intended to be used by a person to purchase illegal drugs (Psychotropic Substances Act of 1978 [Pub. L. No. 95-633, tit. III, § 301(a), 92 Stat. 3768, 3777 (codified as amended at 21 U.S.C.A. § 8821(a)(6))]). This change expanded the Forfeiture Act to allow the forfeiture of all proceeds and property that were traceable to the purchase of an illegal drug. Under the 1978 amendments, the federal government was authorized to proceed in rem against property. In rem forfeiture actions are taken against the property itself, not against its owner. In such proceedings, the guilt or innocence of the property owner regarding any criminal activity is irrelevant. Thus, under the Forfeiture Act, the government may remove property from persons it suspects of a crime, without ever charging them with a crime. The basis of this kind of forfeiture is traced back to the deodand doctrine of the English common law.

The Forfeiture Act was again amended in 1984, when the Comprehensive crime control act (Pub. L. No. 98-473, § 306, 98 Stat. 1837, 2050 [codified as amended at 21 U.S.C.A. § 881(a)(7)]) expanded it to authorize the in rem forfeiture of real property, or land and buildings. Under the 1984 act, federal authorities may seize any real property that is purchased, used, or intended to be used to facilitate narcotics trafficking. Although the Legislative History of the 1984 act suggests that Congress intended real property forfeiture to apply only to drug manufacturing or storage facilities, courts have construed the act to allow the seizure of any real property, including fraternity houses, hotels, ranches, and private residences. Furthermore, courts have allowed real property forfeiture regardless of whether the property was used to store or manufacture drugs.

Forfeiture under the Forfeiture Act begins with either the constructive or actual seizure of property after a district court has issued a warrant. This warrant must be based on a reasonable belief that the property was used in a crime subject to forfeiture, but this reasonable belief can be based entirely on Hearsay and Circumstantial Evidence. After the property is seized, the court holds it until the case is resolved.

Forfeiture proceedings may be either criminal or civil. If the government seeks forfeiture pursuant to criminal charges, it must establish the defendant's guilt Beyond a Reasonable Doubt. If acquitted, the defendant is entitled to retrieve the seized property.

To initiate a civil forfeiture proceeding, the government need only show reasonable grounds to believe that the property was used in, or derived from, certain prohibited activities. If the defendant fails to rebut the showing of probable

Cause with sufficient evidence, the government may keep the property. At trial, the government's standard in a civil forfeiture is proof by a preponderance of the evidence, a lesser burden than a criminal case's reasonable doubt standard.

The Forfeiture Act also allows law enforcement agencies to receive a portion of the proceeds from property forfeiture. Many legal scholars claim that this is a perversion of the police function because it detracts from the more compelling, traditional police function of fighting violent crime. These critics also argue that law enforcement agencies may become financially dependent on the very drug activity that they are supposed to curtail. Proponents of this budgetary scheme argue that drug activity is the source of much violent crime. They further note that the proceeds both benefit community programs and increase the capacity to fight violent crime.

The Racketeer Influenced and Corrupt Organizations Act (RICO) (18 U.S.C.A. §§ 1961 et seq.) is another vehicle for forfeiture in federal court. Enacted as title IX of the Organized Crime Control Act of 1970 (Pub. L. No. 91-452, 84 Stat. 922), RICO allows federal authorities to seize the property of persons engaged in a pattern of Racketeering. Persons who commit murder, Kidnapping, perjury, Extortion, Arson, Robbery, Bribery, gambling, or narcotics offenses two or more times within a ten-year period thus may be forced to forfeit all property that is traceable to the crimes. In a 1984 amendment, Congress added the violation of federal and state Obscenity laws to the list of racketeering offenses.

The case against Ferris Alexander illustrates the way in which federal authorities exercise the forfeiture provisions of RICO (Alexander v. United States, 509 U.S. 544, 113 S. Ct. 2766, 125L. Ed. 2d 441 [1993]). Alexander, the owner of more than a dozen stores and theaters offering sexually explicit materials in Minneapolis, was charged in 1989 with operating a racketeering enterprise in violation of RICO. He was convicted based on the jury's determination that four magazines and three videotapes from his enterprises were obscene. The trial court sentenced Alexander to six years in prison, fined him $100,000, and ordered him to pay the cost of his prosecution, incarceration, and supervised release.

After the conviction, federal authorities sought the forfeiture of all assets related to Alexander's businesses. The jury made findings to identify precisely what was owned by Alexander. Based on those findings, the trial court ordered Alexander to forfeit $8.9 million in cash and inventory, ten bookstores valued at a total of $2 million, his interests in 18 other businesses, and proceeds from 15 other businesses. Law enforcement officers later burned the merchandise from Alexander's businesses.

Alexander appealed to the U.S. Court of Appeals for the Eighth Circuit, which affirmed. On appeal to the U.S. Supreme Court, Alexander argued, in part, that the forfeiture had been excessive. He also argued that the forfeiture was a form of Prior Restraint, in violation of his free speech rights. According to the Court, the forfeiture did not violate Alexander's free speech rights because it did not prevent him from publishing non-obscene material in the future. However, the Court also held that the amount of the forfeiture should have been examined to see whether it violated the Eighth Amendment's Prohibition of excessive fines.

The U.S. Supreme Court remanded the case to the Eighth Circuit for review on the excessive-fines issue. The appeals court sent the case to the trial court. In March 1996, the district court affirmed the original forfeiture of approximately $8.9 million in property.

To many scholars, the Alexander case stands as a serious threat to freedom-of-speech rights. Although Alexander's businesses dealt specifically in Pornography, the decision nevertheless puts artists who create material with a sexual content in danger of losing their property. Many legal analysts also maintain that the forfeiture was excessive when compared with the offenses for which Alexander was convicted. Proponents maintain that the forfeiture helped to create cleaner, safer city neighborhoods.

Most states maintain statutes allowing forfeiture upon conviction of certain crimes. For example, Volume 15 of the Maine Revised Statutes Annotated, section 5821, authorizes the forfeiture of prohibited drugs; materials related to prohibited drugs; property that is used to contain, defend, protect, guard, or secure prohibited drugs; firearms; and vehicles used in the violation of litter laws. Real property used in connection with illegal drugs is also subject to forfeiture under section 5821, with the exception of real property connected to marijuana offenses.

Maine does not provide for the forfeiture of property that is used for prostitution or the solicitation of prostitution, but many states do. For example, section 600.3801 of the Michigan Compiled Laws Annotated authorizes state law enforcement to seize property that has been used to support or to solicit prostitution. In the 1990s, the application of this statute inspired a challenge that went all the way to the U.S. Supreme Court (Bennis v. Michigan, 516 U.S. 442, 116 S. Ct. 994, 134 L. Ed. 2d 68 [1996]).

In Bennis v. Michigan, Tina B. Bennis brought suit against the state of Michigan after it seized the 1977 Pontiac that she owned jointly with her husband, John Bennis. Her husband had been arrested and convicted in Michigan state court of gross indecency in connection with his encounter with a prostitute. The county prosecutor filed a complaint alleging that the Pontiac was a public Nuisance and subject to abatement, or forfeiture. An order of abatement was entered by the trial court. On appeal by Bennis, the appeals court reversed. On subsequent appeal by the state of Michigan, the Michigan Supreme Court also reversed. Bennis appealed to the U.S. Supreme Court.

The high court affirmed the decision of the Michigan Supreme Court. Bennis argued that the forfeiture was a violation of the due process clause of the Fourteenth Amendment because she had not known that the Pontiac would be used for prostitution. The Court cited a long line of cases supporting the proposition that a person may be deprived of property if it has been put to criminal use, regardless of the owner's knowledge or participation.

The Court also dismissed Bennis's argument that the forfeiture violated the Fifth Amendment's Takings Clause, which generally requires compensation for property seized by the government. According to the Court, the government is under no obligation to reimburse a person for property it has seized pursuant to government authority other than the power of Eminent Domain. Ultimately, Bennis lost her ownership of the Pontiac, despite being innocent of any wrongdoing. In a strong dissent, Justice John Paul Stevens argued that "neither logic nor history supports the Court's apparent assumption that [a person's] complete innocence imposes no constitutional impediment to the seizure of their property simply because it provided the locus for a criminal transaction."

Defendants have cultivated several defenses to forfeiture, and some have been successful. If the initial seizure is not preceded by notice and a hearing before a court, a defendant may argue that a forfeiture violates the Due Process Clause of the Fifth and Fourteenth Amendments. Despite the decision in the Alexander case, if a massive, estate-depleting forfeiture is disproportionate to the offense that gave rise to it, it may be found to violate the Excessive Fines Clause of the Eighth Amendment.

In addition, Congress has enacted an "innocent owner" defense in civil drug forfeitures (21U.S.C.A. § 881(a)(6) [2000]). These are cases in which forfeiture is sought without prosecution of the owner. A defendant in a civil forfeiture case may invoke this defense if the property was connected with the illegal drugs without the owner's knowledge or consent.

Supporters of forfeiture laws cite the laws' effectiveness in fighting crime and stripping criminals of their resources. Many legal observers argue that the increasing use of government forfeiture is a flagrant violation of several constitutional rights. The state of forfeiture in contemporary law has been compared to "an Orwellian nightmare" (Aznavoorian 1995, 553), creating a climate that has "turned police agencies into bounty hunters, who, in their quest for cash, have harmed innocent citizens or those guilty of only minor offenses" (Henry 1994, 52). By the early 1990s, the federal government was prosecuting only 20 percent of the individuals from whom they had seized property through forfeiture. Congress finally responded by passing the Civil Asset Forfeiture Reform Act of 2000 (Pub.L. No. 106-185, 114 Stat. 202), which requires federal prosecutors to show a substantial connection between the property and the crime. In addition, it allows the property to be released by the district court pending final disposition of the case when the owner can demonstrate that possession by the government causes a hardship to the owner. Finally, the law permits property owners to sue the government for any damage to the property if they prevail in a civil forfeiture action.

forfeiture (Act of forfeiting), noun confiscation, deprivation of a right, destruction of a right, disentitlement, dispossession, divestiture of property, divestment, eviction, exaction, expropriation, forcible seizure, foreclosure, involuntary loss of right, loss of right, punishment, seizure, seizure of a privilege
Associated concepts: action for forfeiture, forfeiture clause, forfeiture of bail, forfeiture of bond, forfeiture of deposit, forfeiture of office, forfeiture provision, redemption of property forfeitured, relief from forfeiture, right of forfeiiure, tax forfeiture
Foreign phrases: Nullus jus alienum forisfacere potest.No man can forfeit the right of another.forfeiture (Thing forfeited), noun amercement, cost, fine, loss, loss consequent to a default, mulct, pecuniary penalty, penal retribution, penalization, penalty, punishmentSee also: amercement, cost, detriment, disqualification, escheatment, expense, fine, foreclosure, loss, penalty, punishment, rejection, sacrifice, trover


Due Process of Law                                                                                       
A fundamental, constitutional guarantee that all legal proceedings will be fair and that one will be given notice of the proceedings and an opportunity to be heard before the government acts to take away one's life, liberty, or property. Also, a constitutional guarantee that a law shall not be unreasonable, Arbitrary, or capricious.

The constitutional guarantee of due process of law, found in the Fifth and Fourteenth Amendments to the U.S. Constitution, prohibits all levels of government from arbitrarily or unfairly depriving individuals of their basic constitutional rights to life, liberty, and property. The due process clause of the Fifth Amendment, ratified in 1791, asserts that no person shall "be deprived of life, liberty, or property, without due process of law." This amendment restricts the powers of the federal government and applies only to actions by it. The Due Process Clause of the Fourteenth Amendment, ratified in 1868, declares,"[N]or shall any State deprive any person of life, liberty, or property, without due process of law" (§ 1). This clause limits the powers of the states, rather than those of the federal government.

The Due Process Clause of the Fourteenth Amendment has also been interpreted by the U.S. Supreme Court in the twentieth century to incorporate protections of the Bill of Rights, so that those protections apply to the states as well as to the federal government. Thus, the Due Process Clause serves as the means whereby the Bill of Rights has become binding on state governments as well as on the federal government.

The concept of due process originated in English Common Law. The rule that individuals shall not be deprived of life, liberty, or property without notice and an opportunity to defend themselves predates written constitutions and was widely accepted in England. The Magna Charta, an agreement signed in 1215 that defined the rights of English subjects against the king, is an early example of a constitutional guarantee of due process. That document includes a clause that declares, "No free man shall be seized, or imprisoned … except by the lawful judgment of his peers, or by the law of the land" (ch. 39). This concept of the law of the land was later transformed into the phrase "due process of law." By the seventeenth century, England's North American colonies were using the phrase "due process of law" in their statutes.

The application of constitutional due process is traditionally divided into the two categories of Substantive Due Process and procedural due process. These categories are derived from a distinction that is made between two types of law. Substantive Law creates, defines, and regulates rights, whereas procedural law enforces those rights or seeks redress for their violation. Thus, in the United States, substantive due process is concerned with such issues as Freedom of Speech and privacy, whereas procedural due process is concerned with provisions such as the right to adequate notice of a lawsuit, the right to be present during testimony, and the right to an attorney.
Substantive Due Process

The modern notion of substantive due process emerged in decisions of the U.S. Supreme Court during the late nineteenth century. In the 1897 case of Allgeyer v. Louisiana, 165 U.S. 578, 17 S. Ct. 427, 41 L. Ed. 832, the Court for the first time used the substantive due process framework to strike down a state statute. Before that time, the Court generally had used the Commerce Clause or the Contracts Clause of the Constitution to invalidate state legislation. The Allgeyer case concerned a Louisiana law that proscribed the entry into certain contracts with insurance firms in other states. The Court found that the law unfairly abridged the right to enter into lawful contracts, as guaranteed by the Due Process Clause of the Fourteenth Amendment.

The next 40 years after Allgeyer were the heyday of what has been called the freedom-of-contract version of substantive due process. During those years, the Court often used the Due Process Clause of the Fourteenth Amendment to void state regulation of private industry, particularly regarding terms of employment such as maximum working hours or minimum wages. In one famous case from that era, lochner v. new york, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 (1905), the Court struck down a New York law (N.Y. Laws 1897, chap. 415, art. 8, § 110) that prohibited employers from allowing workers in bakeries to be on the job more than ten hours per day and 60 hours per week. The Court found that the law was not a valid exercise of the state's Police Power. It wrote that it could find no connection between the number of hours worked and the quality of the baked goods, thus finding that the law was arbitrary.

In Allgeyer and Lochner and in other cases like them, the Court did not find that state legislatures had failed to enact their laws using the proper procedures—which would present an issue of procedural due process. Instead, it found that the laws themselves violated certain economic freedoms that inhered in the Due Process Clause, specifically its protection of liberty and what the Court described as freedom or liberty of contract. This freedom meant that individuals had the right to purchase or to sell labor or products without unreasonable interference by the government.

This interpretation of the Due Process Clause put the Court in direct opposition to many of the reforms and regulations passed by state legislatures during the Progressive Era of the early twentieth century. Justices who were opposed to the Court's position in such cases, including oliver wendell holmes jr. and john m. harlan, saw such rulings as unwarranted judicial activism in support of a particular free-market ideology.

During the 1930s, the Court used the doctrine of substantive due process to strike down federal legislation as well, particularly legislation associated with President franklin d. roosevelt's New Deal. In 1937, Roosevelt proposed a court-packing scheme in which Roosevelt would have sought to overcome Court opposition to his programs by appointing additional justices. Although the plan was never adopted, the Court quickly changed its position on substantive due process and other issues and began to uphold New Deal legislation. Now, a majority on the Court, including Chief Justice charles e. hughes and Justice benjamin n. cardozo, abandoned the freedom-of-contract version of substantive due process.

Even before the Court abandoned the freedom-of-contract approach to substantive due process, it began to explore using the Due Process Clause of the Fourteenth Amendment to re-evaluate state laws and actions affecting civil freedoms protected by the Bill of Rights. Since the 1833 case of barron v. baltimore, 32 U.S. (7 Pet.) 243, 8 L. Ed. 672, the Court had interpreted the Bill of Rights as applying only to the federal government. Beginning in the 1920s, however, it began to apply the Bill of Rights to the states through the incorporation of those rights into the Due Process Clause of the Fourteenth Amendment. In gitlow v. new york, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138 (1925), the Court ruled that the liberty guarantee of the Fourteenth Amendment's Due Process Clause protects First Amendment free speech from State Action. In near v. minnesota, 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931), the Court found that Freedom of the Press was also protected from state action by the Due Process Clause, and it ruled the same with regard to freedom of religion in Cantwell v. Connecticut, 310 U.S. 296, 60 S. Ct. 900, 84 L. Ed. 1213 (1940).

Because incorporation has proceeded gradually, with some elements of the Bill of Rights still unincorporated, it has also been called selective incorporation. Nevertheless, during the twentieth century, most of the provisions of the Bill of Rights were incorporated by the Due Process Clause of the Fourteenth Amendment, thereby protecting individuals from arbitrary actions by state as well as federal governments.

By the 1960s, the Court had extended its interpretation of substantive due process to include rights and freedoms that are not specifically mentioned in the Constitution but that, according to the Court, extend or derive from existing rights. These rights and freedoms include the freedoms of association and nonassociation, which have been inferred from the First Amendment's freedom-of-speech provision, and the right to privacy. The right to privacy, which has been derived from the First, Fourth, and Ninth Amendments, has been an especially controversial aspect of substantive due process. First established in griswold v. connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), the Court later used it to protect a woman's decision to have an Abortion free from state interference, in the first trimester of pregnancy (roe v. wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 [1973]).

In several recent decisions, the U.S. Supreme Court has considered the application of substantive due process in light of actions taken by law enforcement officers. It often has determined that police actions have not violated a defendant's due process rights. In County of Sacramento v. Lewis, 523 U.S. 833, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998), for example, the Court determined that high-speed chases by police officers did not violate the due process rights of the suspects whom the officers were chasing. In that case, two police officers had engaged in a pursuit of two young suspects at speeds of more than 100 miles per hour through a residential neighborhood. One of the young men died, while the other suffered serious injuries. A unanimous Court held that the officers' decision to engage in the pursuit had not amounted to "governmental arbitrariness" that the Due Process Clause protects due to the nature of the judgment used by the officers in such a circumstance.

The Court in City of West Covina v. Perkins, 525 U.S. 234, 119 S. Ct. 678, 142 L. Ed. 2d 636 (1999) again held in favor of law enforcement officers in a claim that police had violated the plaintiff's due process rights. After seizing Personal Property, including cash savings, of two owners of a home they had searched during a murder investigation, the police retained the property at the police station. When the homeowners sought to have the property returned, the police failed to provide the homeowners with detailed information about how the owners

could have their property returned. The homeowners then filed a 42 U.S.C.A. § 1983 action against the police, claiming deprivation of Civil Rights under the Due Process Clause. The Supreme Court held that because information about the proper procedures to retrieve this property under state law was readily available to the plaintiffs, the police had not deprived the homeowners of their due process rights.

The U.S. Supreme Court is more likely to find due process violations where the actions of a government official are clearly arbitrary. In City of Chicago v. Morales, 527 U.S. 41, 119 S. Ct. 1849, 144 L. Ed. 2d 67 (1999), for example, it struck down a Chicago anti-gang ordinance as unconstitutional on due process grounds. The ordinance allowed police officers to break up any group of two or more persons whom they believed to be loitering in a public place, provided that the officer also believed that at least one member of the group was a gang member. The ordinance had led to more than 43,000 arrests. Because the ordinance did not draw the line between innocent and guilty behavior and failed to give guidance to police on the matter, the ordinance violated the due process rights of the subjects of these break-ups. The Court held that since the ordinance gave absolute discretion to the police officers to determine what actions violated the ordinance, it was an arbitrary restriction on personal liberty in violation of the Due Process Clause.

In 2002, the Court found that arbitrary actions by a trial judge in a murder case violated the due process rights of the defendant (Lee v. Kemna, 534 U.S. 362, 122 S. Ct. 877, 151 L. Ed. 820 [2002]). In that case, the defendant was charged with first-degree murder for driving the getaway car for a man who had pled guilty to a murder charge in Kansas City, Missouri. The defendant claimed that he had been in California at the time of the murder, and four family members were to testify at trial that the defendant was not in Kansas City at the time of the murder. However, the family members left before they were expected to testify, and the defense could not locate them. The defense asked the court for a short Continuance of one or two days, but the judge refused due to personal conflicts and a conflict with another trial. Without the testimony of the family members, the defendant was convicted of murder. The high court held that the judge's arbitrary actions violated the defendant's due process rights, and it vacated the defendant's conviction.

Procedural Due Process                                                                                   
The phrase "procedural due process" refers to the aspects of the Due Process Clause that apply to the procedure of arresting and trying persons who have been accused of crimes and to any other government action that deprives an individual of life, liberty, or property. Procedural due process limits the exercise of power by the state and federal governments by requiring that they follow certain procedures in criminal and civil matters. In cases where an individual has claimed a violation of due process rights, courts must determine whether a citizen is being deprived of "life, liberty, or property," and what procedural protections are "due" to that individual.

The Bill of Rights contains provisions that are central to procedural due process. These protections give a person a number of rights and freedoms in criminal proceedings, including freedom from unreasonable searches and seizures; freedom from Double Jeopardy, or being tried more than once for the same crime; freedom from Self-Incrimination, or testifying against oneself; the right to a speedy and public trial by an impartial jury; the right to be told of the crime being charged; the right to cross-examine witnesses; the right to be represented by an attorney; freedom from Cruel and Unusual Punishment; and the right to demand that the state prove any charges Beyond a Reasonable Doubt. In a series of U.S. Supreme Court cases during the twentieth century, all of these rights were applied to state proceedings. In one such case, gideon v. wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), the Court ruled that the Due Process Clause of the Fourteenth Amendment incorporates the Sixth Amendment right to have an attorney in "all criminal prosecutions," including prosecutions by a state. The case proved to be a watershed in establishing indigents' rights to legal counsel.

Procedural due process also protects individuals from government actions in the civil, as opposed to criminal, sphere. These protections have been extended to include not only land and personal property, but also entitlements, including government-provided benefits, licenses, and positions. Thus, for example, the Court has ruled that the federal government must hold hearings before terminating Welfare benefits (Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 [1970]). Court decisions regarding procedural due process have exerted a great deal of influence over government procedures in prisons, schools, Social Security, civil suits, and public employment.

The U.S. Supreme Court in Lujan v. G&G Firesprinklers, Inc., 532 U.S. 189, 121 S. Ct. 1446, 149 L. Ed. 2d 391 (2000) held that a state is not required to hold a hearing before withholding money and imposing penalties on a building contractor. The California Division of Labor & Standards Enforcement determined that a building subcontractor had failed to pay the prevailing wage to workers who installed fire sprinklers in state buildings. The California agency, without providing notice or a hearing, fined the general contractor, which in turn withheld money from the subcontractor. The sub-contractor, G&G Firesprinklers, Inc., sued the California agency, claiming that the agency had violated the company's procedural due process rights. The Court disagreed, holding that because the company could sue the agency for breach of contract, the fine did not constitute a due process violation.

due process of law n. a fundamental principle of fairness in all legal matters, both civil and criminal, especially in the courts. All legal procedures set by statute and court practice, including notice of rights, must be followed for each individual so that no prejudicial or unequal treatment will result. While somewhat indefinite the term can be gauged by its aim to safeguard both private and public rights against unfairness. The universal guarantee of due process is in the Fifth Amendment to the U. S. The American Constitution which provides "No person shall...be deprived of life, liberty, or property, without due process of law," and applied to all states by the 14th Amendment. From this basic principle flow many legal decisions determining both procedural and substantive rights.

Substantive Due Process                                                                                 
The substantive limitations placed on the content or subject matter of state and federal laws by the Due Process Clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution.

In general, substantive due process prohibits the government from infringing on fundamental constitutional liberties. By contrast, procedural due process refers to the procedural limitations placed on the manner in which a law is administered, applied, or enforced. Thus, procedural due process prohibits the government from arbitrarily depriving individuals of legally protected interests without first giving them notice and the opportunity to be heard.

The Due Process Clause provides that no person shall be "deprived of life, liberty, or property without due process of law." When courts face questions concerning procedural due process, the controlling word in this clause is process. Courts must determine how much process is due in a particular hearing to satisfy the fairness requirements of the Constitution. When courts face questions concerning substantive due process, the controlling issue is liberty. Courts must determine the nature and the scope of the liberty protected by the Constitution before affording litigants a particular freedom.
Historical Development

The concept of due process has its roots in early English Law. In 1215 Magna Charta provided that no freeman should be imprisoned, disseised, outlawed, exiled, or destroyed, unless by the "law of the land." As early as 1354 the words "due process of law" were used to explain the protections set forth in Magna Charta. By the end of the fourteenth century, "law of the land" and "due process of law" were considered virtually synonymous in England. According to the seventeenth-century English jurist Sir Edward Coke, "due process of law" and "law of the land" possessed both substantive and procedural qualities. Substantively, Coke believed that the liberty to pursue a livelihood, the right to purchase goods, and the right to be free from anti-competitive practices were all protected by the "law of the land" and "due process of law." Procedurally, Coke associated these terms with indictment by Grand Jury and trial by petit jury.

When the Founding Fathers drafted the Fifth Amendment, it was unclear whether the Due Process Clause possessed any substantive qualities. Some prominent Americans, including Alexander Hamilton, understood the Due Process Clause to provide only procedural safeguards. Several states, however, followed the English practice of equating due process with the substantive protections offered by statutes and the Common Law. This divergent understanding of due process continues today. During the first 60 years after the ratification of the Constitution, the Due Process Clause was confined to a procedural meaning. Over the next 140 years, however, due process of law took on a pervasive substantive meaning.

The year 1856 marked the introduction of substantive due process in U.S. Jurisprudence. In that year the U.S. Supreme Court faced a constitutional challenge to the Missouri Compromise of 1820, a federal law that abolished Slavery in the territories. Under Missouri law, slaves who entered a free territory remained free for the rest of their lives. When a slave named Dred Scott returned to Missouri after visiting the free territory in what is now Minnesota, he sued for emancipation. Denying his claim, in dred scott v. sandford, 60 U.S. (19 How.) 393, 15 L. Ed. 691 (1856), the Supreme Court ruled that the Due Process Clause protects the liberty of certain persons to own African American slaves. Because the Missouri Compromise deprived slave owners of this liberty in the territories, the Supreme Court declared it invalid.

After Dred Scott the doctrine of substantive due process lay dormant for nearly half a century. In lochner v. new york, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 (1905), the Supreme Court reinvigorated the doctrine by invalidating a state law that regulated the number of hours employees could work each week in the baking industry. Maximum hour laws, the Court ruled, interfere with the liberty of contract guaranteed by the Due Process Clause. The Court said that the liberty of contract allows individuals to determine the terms and conditions of their employment, including the number of hours they work during a given period.

Over the next 32 years, the Supreme Court relied on Lochner in striking down several laws that interfered with the liberty of contract. Most of these laws were enacted pursuant to the inherent police powers of state and federal governments. Police powers give lawmakers the authority to regulate health, safety, and welfare. For example, in Adkins v. Children's Hospital, 261 U.S. 525, 43 S. Ct. 394, 67 L. Ed. 785 (1923), the Supreme Court invalidated a Minimum Wage law that had been enacted by the federal government pursuant to its police powers. Minimum wage laws, the Court said, violate the liberty of contract guaranteed to workers by the Due Process Clause.

By 1936 the doctrine of substantive due process had grown increasingly unpopular. The Court had invoked the doctrine to strike down a series of federal laws enacted as part of President franklin d. roosevelt's New Deal, an economic stimulus program aimed at ameliorating the worst conditions of the Great Depression. On February 5, 1937, Roosevelt announced his court-packing plan, a proposal designed to enlarge the Supreme Court by enough justices to give the Executive Branch control over the federal judiciary. One month later the Supreme Court released its decision in west coast hotel co. v. parrish, 300 U.S. 379, 57 S. Ct. 578, 81 L. Ed. 703 (1937).

In West Coast Hotel the Supreme Court upheld a Washington State minimum wage law over due process objections. Although the Court did not completely abandon the doctrine of substantive due process, it circumscribed its application. Because liberty of contract is not specifically mentioned in any provision of the federal Constitution, the Court said, this liberty must yield to competing government interests that are pursued through reasonable means. West Coast Hotel precipitated the onset of modern substantive due process analysis.
Modern Analysis

Since 1937 the Court has employed a two-tiered analysis of substantive due process claims. Under the first tier, legislation concerning economic affairs, employment relations, and other business matters is subject to minimal judicial scrutiny, meaning that a particular law will be overturned only if it serves no rational government purpose. Under the second tier, legislation concerning fundamental liberties is subject to heightened judicial scrutiny, meaning that a law will be invalidated unless it is narrowly tailored to serve a significant government purpose.

The Supreme Court has identified two distinct categories of fundamental liberties. The first category includes most of the liberties expressly enumerated in the Bill of Rights. Through a process known as "selective incorporation," the Supreme Court has interpreted the Due Process Clause of the Fourteenth Amendment to bar states from denying their residents the most important freedoms guaranteed in the first ten amendments to the federal Constitution. Only the Second Amendment right to bear arms, the Third Amendment right against involuntary quartering of soldiers, and the Fifth Amendment right to be indicted by a grand jury have not been made applicable to the states. Because these rights remain inapplicable to state governments, the Supreme Court is said to have "selectively incorporated" the Bill of Rights into the Due Process Clause of the Fourteenth Amendment.

The second category of fundamental liberties includes those liberties that are not expressly enumerated in the Bill of Rights but which are nonetheless deemed essential to the concepts of freedom and equality in a democratic society. These unenumerated liberties are derived from Supreme Court precedents, common law, moral philosophy, and deeply rooted traditions of U.S. Legal History. The word liberty cannot be defined by a definitive list of rights, the Supreme Court has stressed. Instead, it must be viewed as a rational continuum of freedom through which every facet of human behavior is safeguarded from Arbitrary impositions and purposeless restraints. In this light, the Supreme Court has observed, the Due Process Clause protects abstract liberty interests, including the right to personal autonomy, bodily integrity, self-dignity, and self-determination.

These interests often are grouped to form a general right to privacy, which was first recognized in griswold v. connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), where the Supreme Court struck down a state statute forbidding married adults from using Birth Control on the ground that the law violated the sanctity of the marital relationship. In Griswold the Supreme Court held that the First, Fourth, Fifth, and Ninth Amendments create a Penumbra of privacy, which serves to insulate certain behavior from governmental coercion or intrusion. According to the Court, this penumbra of privacy, though not expressly mentioned in the Bill of Rights, must be protected to establish a buffer zone or breathing space for those freedoms that are constitutionally enumerated.

Seven years later, in Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972), the Supreme Court struck down a Massachusetts statute that made illegal the distribution of contraceptives to unmarried persons. In striking down this law, the Supreme Court enunciated a broader view of privacy, stating that all persons, married or single, enjoy the liberty to make certain intimate decisions free from government restraint, including the decision of whether to bear or beget a child. Eisenstadt foreshadowed the decision in roe v. wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), where the Supreme Court ruled that the Due Process Clause guarantees women the right to have an Abortion during the first trimester of pregnancy without state interference. Roe subsequently was interpreted to prevent state and federal governments from passing laws that unduly burden a woman's right to terminate her pregnancy (webster v. reproductive health services, 492 U.S. 490, 109 S. Ct. 3040, 106 L. Ed. 2d 410 [1989]).

The liberty interest protected by the Due Process Clause places other substantive limitations on legislation regulating intimate decisions. For example, the Supreme Court has recognized a due process right of parents to raise their children as they see fit, including the right to educate their children in private schools (Pierce v. Society of the Sisters, 268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 1070 [1925]). Parents may not be compelled by the government to educate their children at public schools without violating principles of substantive due process. The Supreme Court also has ruled that members of extended families, such as grandparents and grandchildren, enjoy a due process right to live under the same roof, despite housing ordinances that limit occupation of particular dwellings to immediate relatives (Moore v. City of East Cleveland, 431 U.S. 494, 97 S. Ct. 1932, 52 L. Ed. 2d 531 [1977]).

During the 1990s the Supreme Court was asked to recognize a general right to die under the doctrine of substantive due process. Although the Court stopped short of establishing such a far-reaching right, certain patients may exercise a constitutional liberty to hasten their deaths under a narrow set of circumstances. In Cruzan v. Missouri Department of Health, 497 U.S. 261, 110 S. Ct. 2841, 111 L. Ed. 2d 224 (1990), the Supreme Court ruled that the Due Process Clause guarantees the right of competent adults to make advanced directives for the withdrawal of life-sustaining measures should they become incapacitated by a disability that leaves them in a persistent vegetative state. Once it has been established by clear and convincing evidence that a mentally incompetent and persistently vegetative patient made such a prior directive, a spouse, parent, or other appropriate guardian may seek to terminate any form of artificial hydration or nutrition.

The U.S. Court of Appeals for the Ninth Circuit cited Cruzan in support of its decision establishing the right of competent, but terminally ill, patients to hasten their deaths by refusing medical treatment when the final stages of life are tortured by pain and indignity (Compassion in Dying v. Washington, 79 F.3d 790 [1996]). In washington v. glucksberg, 521 U.S. 702, 117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997), however, the Supreme Court reversed this decision, holding that there is no due process right to assisted suicide.

The liberty interest recognized by the doctrine of substantive due process permits individuals to lead their lives free from unreasonable and arbitrary governmental impositions. Nevertheless, this liberty interest does not require the absence of all governmental restraint. Economic regulations will be upheld under the Due Process Clause so long as they serve a rational purpose, while noneconomic regulations normally will be sustained if they do not impinge on a fundamental liberty and otherwise are reasonable.

The U.S. Supreme Court continues to revisit the concept of substantive due process. In 2003 the Supreme Court was asked to review the constitutionality of a Texas statute criminalizing homosexual Sodomy. The statute made it a misdemeanor for a person to engage in "deviate sexual intercourse" with another individual of the same sex, but did not prohibit such conduct when undertaken with a person of the opposite sex. The defendant, an adult male, was arrested for violating the statute by engaging in consensual homosexual relations in the privacy of his home. The Court found that Texas Penal Code section 21.06 violated substantive due process by creating this double standard governing the legality of oral and anal sex between heterosexual and homosexual partners. Lawrence v. Texas, 539 U.S.___, 123 S.Ct. 2472, 156 L.Ed. 2d 508 (U.S., Jun 26, 2003). Justice anthony kennedy wrote the 6–3 decision.

Overruling a 17-year-old precedent, Kennedy said that history and tradition are the starting point, but not in all cases the ending point, of substantive due process inquiry. In Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed. 2d 140 (1986), which rejected a claim advocating recognition for an almost identical substantive due process liberty interest, Kennedy maintained that the Court had failed to appreciate the nature and scope of the liberty interest at stake. "To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward [in that case], just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse," Justice Kennedy explained. Although "[t]he laws involved in Bowers and here are … statutes that purport to do no more than prohibit a particular sexual act…. [t]heir penalties and purposes … have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home," the Court continued. The statutes in question "seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals."

The deficiencies in Bowers became even more apparent in the years following its announcement, Justice Kennedy observed. The 25 states with laws prohibiting sodomy in Bowers had been reduced to 13 by 2003, and four of those 13 states applied their laws only against homosexual conduct. But even in the states where homosexual sodomy is proscribed, Kennedy emphasized, there is a pattern of nonenforcement with respect to consenting adults acting in private. Thus, the Court concluded that homosexuals enjoy a constitutionally protected liberty under the Due Process Clause and that liberty gives them a right to engage in private consensual sexual activity without intervention of government.

Nonfeasance                                                                                                                                                        
The intentional failure to perform a required duty or obligation.

Nonfeasance is a term used in Tort Law to describe inaction that allows or results in harm to a person or to property. An act of nonfeasance can result in liability if (1) the actor owed a duty of care toward the injured person, (2) the actor failed to act on that duty, and (3) the failure to act resulted in injury.

Originally the failure to take affirmative steps to prevent harm did not create liability, and this rule was absolute. Over the years courts have recognized a number of situations in which a person who does not create a dangerous situation must nevertheless act to prevent harm.

Generally a person will not be held liable for a failure to act unless he or she had a preexisting relationship with the injured person. For example, if a bystander sees a stranger drowning and does not attempt a rescue, he cannot be liable for nonfeasance because he had no preexisting relationship with the drowning person. The bystander would not be liable for the drowning even if a rescue would have posed no risk to him.

However, if the victim is drowning in a public pool and the bystander is a lifeguard employed by the city, and if the lifeguard does not act to help, she may be held liable for the drowning because the lifeguard's employment places her in a relationship with swimmers in the pool. Because of this relationship, the lifeguard owes a duty to take affirmative steps to prevent harm to the swimmers.

Courts have found a preexisting relationship and a duty to act in various relationships, such as the relationship between Husband and Wife, innkeeper and guest, employer and employee, jailer and prisoner, carrier and passenger, Parent and Child, school and pupil, and host and guest. A person who renders aid or protection to a stranger also may be found liable if the rescuer does not act reasonably and leaves the stranger in a more dangerous position, even if the rescuer had nothing to do with the initial cause of the stranger's dilemma.

Courts have found a duty to act if a person does something innocuous that later poses a threat and then fails to act to prevent harm. For example, assume that Johnny loans a powerful circular saw to Bobby. If Johnny later remembers that the bolt securing the blade is loose and that the blade will dislodge in a dangerous manner when the saw is used, Johnny must try to warn Bobby. If Bobby is injured because Johnny failed to act, Johnny can be held liable for nonfeasance.

In theory nonfeasance is distinct from misfeasance and malfeasance. Malfeasance is any act that is illegal or wrongful. Misfeasance is an act that is legal but improperly performed. Nonfeasance, by contrast, is a failure to act that results in harm.

In practice the distinctions between the three terms are nebulous and difficult to apply. Courts in various jurisdictions have crafted different rules relating to the terms. The most difficult issue that faces courts is whether to imply a duty to act and find liability for the failure to act.

Originally courts used the term nonfeasance to describe a failure to act that did not give rise to liability for injuries. The meaning of the term reversed direction over time, and most courts now use it to describe inaction that creates liability.

nonfeasance n. the failure of an agent (employee) to perform a task he/she has agreed to do for his/her principal (employer), as distinguished from "misfeasance" (performing poorly) or "malfeasance" (performing illegally or wrongly).
nonfeasance noun delinquency, dereliction, disregard of duty, failure, inattention, indifference, laxity, misprision, neglect of duty, negligence, nonperformance, omission

Misfeasance                                                                                               
A term used in Tort Law to describe an act that is legal but performed improperly.
Generally, a civil defendant will be liable for misfeasance if the defendant owed a duty of care toward the plaintiff, the defendant breached that duty of care by improperly performing a legal act, and the improper performance resulted in harm to the plaintiff.

For example, assume that a janitor is cleaning a restroom in a restaurant. If he leaves the floor wet, he or his employer could be liable for any injuries resulting from the wet floor. This is because the janitor owed a duty of care toward users of the restroom, and he breached that duty by leaving the floor wet.

In theory, misfeasance is distinct from Nonfeasance. Nonfeasance is a term that describes a failure to act that results in harm to another party. Misfeasance, by contrast, describes some affirmative act that, though legal, causes harm. In practice, the distinction is confusing and uninstructive. Courts often have difficulty determining whether harm resulted from a failure to act or from an act that was improperly performed.

To illustrate, consider the example of the wet bathroom floor. One court could call a resulting injury the product of misfeasance by focusing on the wetness of the floor. The washing of the floor was legal, but the act of leaving the floor wet was improper. Another court could call a resulting injury the product of nonfeasance by focusing on the janitor's failure to post a warning sign.

Malfeasance                                                                                              
The commission of an act that is unequivocally illegal or completely wrongful.
Malfeasance is a comprehensive term used in both civil and Criminal Law to describe any act that is wrongful. It is not a distinct crime or tort, but may be used generally to describe any act that is criminal or that is wrongful and gives rise to, or somehow contributes to, the injury of another person.

Malfeasance is an affirmative act that is illegal or wrongful. In tort law it is distinct from misfeasance, which is an act that is not illegal but is improperly performed. It is also distinct from Nonfeasance, which is a failure to act that results in injury.

The distinctions between malfeasance, misfeasance, and nonfeasance have little effect on tort law. Whether a claim of injury is for one or the other, the plaintiff must prove that the defendant owed a duty of care, that the duty was breached in some way, and that the breach caused injury to the plaintiff.

One exception is that under the law of Strict Liability, the plaintiff need not show the absence of due care. The law of strict liability usually is applied to Product Liability cases, where a manufacturer can be held liable for harm done by a product that was harmful when it was placed on the market. In such cases the plaintiff need not show any actual malfeasance on the part of the manufacturer. A mistake is enough to create liability because the law implies that for the sake of public safety, a manufacturer warrants a product's safety when it offers the product for sale.
West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

malfeasance n. intentionally doing something either legally or morally wrong which one had no right to do. It always involves dishonesty, illegality, or knowingly exceeding authority for improper reasons. Malfeasance is distinguished from "misfeasance," which is committing a wrong or error by mistake, negligence or inadvertence, but not by intentional wrongdoing. Example: a city manager putting his indigent cousin on the city payroll at a wage the manager knows is above that allowed and/or letting him file false time cards is malfeasance; putting his able cousin on the payroll which, unknown to him, is a violation of an anti-nepotism statute is misfeasance. This distinction can apply to corporate officers, public officials, trustees, and others cloaked with responsibility.

 

This is a prime example of violation of due process & civil rights, in this case there was justice, but most times there is not, as Patty Schoendorf said: What about those who don't have the money to fight them?  The following is an article from the Spokesman Review about this case as well as the actual Judgement:



Spokane

Judge: Dog ordinance unconstitutional

Owners reunited with their dogs

Lo-Band  |  Hi-Band

Spokane’s “dangerous dog” ordinance is unconstitutional because it denies pet owners the right of due process, a Superior Court judge ruled Friday in a case that may have far-reaching effects.

As a matter of law, the administrative procedures used in the city of Spokane regarding “dangerous dog” determinations and appeals from those rulings violate citizens’ due process rights, Judge Robert Austin said in his ruling.

It came in the case of Patty Schoendorf, a 57-year-old resident of the city’s West Central neighborhood. Her dog, a 1½-year-old boxer and golden Lab mix named Kenny, and her daughter’s 4-year-old border collie and black Lab mix, Tai, were impounded in mid-August by SpokAnimal officers working under a city animal control contract.

The ruling suggests the City Council now must correct the legal issues with its “dangerous dog” ordinance and provide more constitutional protections to citizens whose animals are picked up and destroyed, sometimes in a matter of days.

In the current system, dogs tagged as “dangerous” by the city and its contractor, SpokAnimal, are deemed to be that unless the owner can prove otherwise – flying in the face of the notion of presumed innocence.

City Attorney Jim Craven said he would have a comment after reading the judge’s four-page ruling. It’s the latest legal setback for the City Attorney’s Office and the City Council, which recently granted a 26-month contract extension to SpokAnimal.

Shortly after the judge released his 4-page ruling, Schoendorf, her daughter, Emily Kaeding, and their attorneys, Cheryl Mitchell and Richard Lee, raced to SpokAnimal’s facility at 710 N. Napa late Friday afternoon for a tail-wagging reunion with Kenny and Tai.

They are home this weekend after spending more than three months in solitary confinement while Schoendorf paid $14 a day and hired a team of attorneys to keep them from being euthanized. She was only allowed two visits – sticking her fingers through the chain mesh – after the court intervened.

“I’ve been praying for this day for so long,” Schoendorf said Friday afternoon, nervously fondling her dog’s leash. SpokAnimal officials had her spend several minutes signing legal papers before the dogs could be released.

“I think I’m going to give him a steak bone, even though I can’t afford one after all this,” Schoendorf said when asked what she would do with her dog this evening. Tai, who spends days at Schoendorf’s home, went to another home with Kaeding.

They were being held in the public-restricted “dangerous dog” area – sort of a doggy death row – where dogs labeled dangerous are euthanized within 14 days unless their owners pay $98 in advance, demand a hearing and get a Superior Court restraining order preventing them from being destroyed.

“Most poor people can’t afford to fight the city like this, so they just lose their dogs,” Schoendorf said.

SpokAnimal officers alleged her dogs killed a neighborhood cat in late July, but Schoendorf says the contract dog catchers grabbed the wrong black and tan dogs. She said 13 other sets of black and brown dogs live within a two block radius of her West Central home, but she wasn’t given an opportunity to make that case before a city hearing examiner.

The judge said the city violated Schoendorf’s constitutional rights by taking her property – her dogs – and intending to destroy them after a hearing where she wasn’t allowed to cross-examine or impeach witnesses involved in the dogs’ impoundment.

She also wasn’t given access to documents in the city’s “dangerous dog” file and the opportunity to rebut those allegations – another denial of due process guaranteed by the Constitution.

The judge not only ordered SpokAnimal to immediately release the dogs, he ordered the city to pay as-yet undetermined legal bills for a team of attorneys.

“The attorney fees are going to be pretty healthy in this,” said attorney Robert Caruso, who worked with Lee of his firm and Mitchell, who specializes in animal rights legal issues.

Mitchell said she has “been fighting” with the city and its contract that allows SpokAnimal to pick up dogs and label them dangerous on the spot, even if they have returned home, as Kenny and Tai had done after someone opened the gate at Schoendorf’s home.

Her adult son was there Aug. 16 when SpokAnimal control officers said they had come to pick up two black and brown dogs, tentatively described by an 80-year-old man who witnessed a cat mauled by two dogs in late July. The cat later died.

“They told my son, ‘If you don’t give us those dogs, we’re going to arrest you and put you in jail,’” so he went in the house and handed over the two dogs,” Schoendorf said. Her third dog, a golden retriever named Hannah, escaped attention and remained in the home.

After getting off work that day, Schoendorf went to SpokAnimal and was told she would have to pay $98 in advance – $7 a day for each dog – to keep them from being euthanized while she filed an appeal with City Hearing Examiner Greg Smith.

At the informal hearing, witnesses were not given an oath, Schoendorf said, and she wasn’t given a chance to challenge their version of events, accusing her dogs of killing the cat. There also were documents given to the hearing examiner by SpokAnimal that she wasn’t allowed to see, she said.

The hearing examiner ruled her pets were “dangerous dogs” and said they could be returned to Schoendorf and her daughter only if they posted a $100,000 bond per animal, had them wear muzzles any time they were outside, and built a special concrete-floor outdoor kennel posted with “dangerous dogs” signs.

After lining up Mitchell and Caruso’s law firm, where she works as a paralegal, Schoendorf instructed the lawyers to get a restraining order to prevent SpokAnimal from euthanizing her dogs while she appealed the hearing examiner’s dangerous dog ruling to Superior Court.

Mitchell drafted the legal papers, asking the judge to declare the city’s dangerous dog ordinance – part of the Spokane Municipal Code – unconstitutional.

“I’m absolutely delighted,” Mitchell said of the ruling. “Finally, a judge has told them – the city and SpokAnimal – they have to have rules and follow the Constitution.”

The judge said dogs clearly are property, so a government agency must comply with due process provisions of the Constitution when seizing animals.

The judge said the city and SpokAnimal failed to identify a “standard of proof” – the legal criteria – in labeling dangerous dogs.

“Similarly, in this case, the appellant (Schoendorf) was at no time during the hearing allowed to cross-examine the witnesses testifying against them,” Austin said. “In addition, the appellant was not given, prior to the hearing, certain documents used in the hearing.”

Furthermore, the judge said, instead of a presumption of innocence that accompanies most legal proceedings, the burden of proof shifted to Schoendorf to prove her dogs weren’t the dangerous dogs responsible for the cat’s death.