Thursday, May 27, 2004
Racist Overtones
P. Greg Parham & Michael Dalto in his statement has used racist overtones in the word "hispanic" to be synomous to "illegal alien". Furthermore, their document alludes to being "American" would necessarily mean "white" or at least "non-hispanic". This train of thought goes against the constitution of the United States.
Wednesday, May 26, 2004
Tuesday, May 25, 2004
CIA - The World Factbook -- United States
CIA - The World Factbook -- United States
Spanish is the most widely spoken language in the United States other than English. Spanish is the most widely spoken language in the Western Hemisphere. More so than English.
Spanish is the most widely spoken language in the United States other than English. Spanish is the most widely spoken language in the Western Hemisphere. More so than English.
HIspanics in the United States
Hispanics in the United States
-- The U.S. Hispanic population ranks as the fifth-largest in the world, behind Mexico, Spain, Colombia and Argentina.
-- There are more than 7.6 million Hispanic households in the United States, averaging 3.6 people per household.
-- In 1995, 74 percent of U.S. Hispanics resided in five states: California, Texas, New York, Florida and Illinois.
-- 77 percent of Hispanics living in the United States were born abroad, and 44 percent have lived in the United States 10 years or less.
-- 58 percent of Hispanics over 18 are employed full time.
-- 6.6 percent of Hispanics over 18 are unemployed.
-- 31 percent of all Hispanic households send money to relatives in their country of origin.
-- The buying power of the U.S. Hispanic market is more than $228 billion, and the three markets with the greatest buying power are Los Angeles, New York and Miami.
-- The average household income for Hispanics increased from $14,712 in 1980 to $29,500 in 1996.
- Sources: U.S. Census Bureau and Rodriguez Communications, a California-based Hispanic marketing company.
-- The U.S. Hispanic population ranks as the fifth-largest in the world, behind Mexico, Spain, Colombia and Argentina.
-- There are more than 7.6 million Hispanic households in the United States, averaging 3.6 people per household.
-- In 1995, 74 percent of U.S. Hispanics resided in five states: California, Texas, New York, Florida and Illinois.
-- 77 percent of Hispanics living in the United States were born abroad, and 44 percent have lived in the United States 10 years or less.
-- 58 percent of Hispanics over 18 are employed full time.
-- 6.6 percent of Hispanics over 18 are unemployed.
-- 31 percent of all Hispanic households send money to relatives in their country of origin.
-- The buying power of the U.S. Hispanic market is more than $228 billion, and the three markets with the greatest buying power are Los Angeles, New York and Miami.
-- The average household income for Hispanics increased from $14,712 in 1980 to $29,500 in 1996.
- Sources: U.S. Census Bureau and Rodriguez Communications, a California-based Hispanic marketing company.
Friday, May 21, 2004
De Jesus vs. United States of America
JUAN DAVID DE JESUS
411 NORTH PALM DRIVE #14
BEVERLY HILLS, CA 90210
In Pro Per
UNITED STATES DISTRICT COURT OF THE CENTRAL DISTRICT OF CALIFORNIA NINTH CIRCUIT
JUAN DAVID DE JESUS, a United States Citizen
Plaintiff,
vs.
UNITED STATES OF AMERICA
Defendant Case No.: CV 04-1207 NM (FMOx)
PLAINTIFF’S OPPOSSITION TO DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT
Dated this 21st day of May, 2004
JUAN DAVID DE JESUS
411 NORTH PALM DRIVE #14
BEVERLY HILLS, CA 90210
I. INTRODUCTION
P. Greg Parham, Special Assistant United States Attorney filed on behalf of the United States (Defendant) a Motion to Dismiss Plaintiff’s Complaint. The Motion is dated April 23, 2004. The Defendant contends that the court lacks subject matter jurisdiction and that the Plaintiff has failed to state a claim upon which relief can be granted.
The Plaintiff, Juan David De Jesus, opposes the Defendant’s Motion to Dismiss based on the contention that the court does possess subject matter jurisdiction and that the Plaintiff has clearly stated a claim upon which relief can be granted. Moreover, the Plaintiff denies being involved in any criminal activity.
Furthermore, the counsel for the Defendant did not follow Local Rule 7-3 which clearly states that, “counsel contemplating the filing of any motion shall first contact opposing counsel to discuss thoroughly, preferably in person, the substance of the contemplated motion and any potential resolution.” Counsel for the Defendant informed the Plaintiff only of his intentions to move to dismiss but failed to discuss any potential resolution.
In the introduction, the Defendant prefaces its statement by saying that the Plaintiff’s aircraft was seized by the Department of Homeland Security on September 10, 2003 during the course of an illegal alien smuggling investigation concerning the plaintiff. The plaintiff denies any connection to alien smuggling. The United States is well aware of the Plaintiff’s contentions.
Even though the Defendant claims Sovereign Immunity, the Plaintiff will show that this doctrine does not apply in this case. The concept of Equitable Relief does not apply in this circumstance because the Plaintiff has not requested a monetary award for damages. The Plaintiff has been previously denied an Injunction and a Restraining Order where the concept of Equitable Relief would apply.
The Plaintiff’s complaint should not be dismissed in its entirety because there are several issues addressed and not just the issue of the Plaintiff’s aircraft.
This document presented by the Defendant used in Exhibit B is full misstatements, ambiguities and contradictions; and the testimonies of those individuals giving the statements are not supported by a sworn statement at the end of the document.
II. STATEMENT OF FACTS
The Government is being unjustly enriched and is holding specific property of the plaintiff. This is a point that the court must address.
The Government has committed Fraud and Misrepresentation of material facts as well as perjury in its document labeled as Exhibit B.
In the Defendant’s introductory statement in Section II, (Statement of Facts), the Defendant cites McCarthy v. U.S., 850 F.2d 558, 560 (9th Cir. 1988) as support for its contention that extrinsic evidence may be considered. This is a misuse of the principle considering that the Supreme Court has held that extrinsic evidence goes to impeach a witness to expose biases, prejudices, or ulterior motives as they may relate to issues or personalities in the case at hand, only then, evidence will be allowed. United States v. Abel, 469 U.S. 45, 54 (1984).
The Plaintiff contends that his aircraft is not subject to forfeiture because the Plaintiff has shown ample evidence pursuant to Section 274 (8 U.S.C. 1324) and Section 983 in both the Personal Interview with the Department of Homeland Security on December 10, 2003 and with the Plaintiff’s Petition for Remission or Mitigation of Forfeiture. The Plaintiff has not, knowingly or in reckless disregard of the law, committed any crimes.
III. ARGUMENT
The Government claims Sovereign Immunity. But the Government cannot claim this right because it is intended to be used when the United States is requested to withdraw money from the Treasury. My suit is not one for money rather one of principle. Sovereign immunity is a legal doctrine which, under some circumstances, protects the federal, state, and tribal governments within the United States from lawsuits which would cause those governments to pay out money, real estate, or goods from the governmental treasury. The basic idea behind sovereign immunity is that property held by the government (including assets in the public treasury) is in trust for all the citizens of that particular government. The public treasury and public property are, therefore, to be used for the benefit of all the citizens equally--not just a few individuals (such as the people who file lawsuits). If, through lawsuit, a plaintiff can collect money from the government for some wrong the government has done him, the public treasury will be reduced for the benefit of that one person. There will then be less money to provide services to all the other citizens of the government. All the citizens will suffer because of the drain on the public treasury caused by a single citizen. Courts have said that when someone claiming to have been injured by the government or its employees' files suit for money damages against the government, and the government has not expressly waived its immunity, the court will not even consider the lawsuit. Instead, the court will dismiss the suit and instruct the injured person to seek payment for his injuries from the legislature or chief executive of the government. The government, say the courts, is immune from any lawsuit seeking money damages against it. Because the legislative body and the chief executive are the elected representatives of all the people, only they should decide where public money (and other property) belonging to all the people should be spent. Many contend that this is not a decision for the courts. The Plaintiff’s case must be distinguished in that the Plaintiff is not seeking an award for monetary damages.
Even though the Plaintiff is not requesting award of monetary damages in the present complaint, the Plaintiff does not waive his right to do so in the future. The “BIVENS ACTIONS” allows for Damages remedies for constitutional violations committed by federal agents and became available in 1971. The Supreme Court had long held that federal courts had the power to grant relief not expressly authorized by statute as well as the power to adjust remedies to grant relief made necessary by the particular circumstances of the case at hand. However, it was not until the Court's decision in Bivens v. 6 unknown named federal agents 403US388, 91SCT1999, 29LE2d 619(1971) that a violation of a specific constitutional amendment by a Federal employee was recognized as a cause of action for monetary damages. In the case of Bivens vs. six employees of the US Department of Justice, the Plaintiff alleged that Federal Agents had arrested him and searched his home without a warrant or probable cause in violation of the 4th amendment's ban against unreasonable searches and seizures. The Court upheld the reasonableness of the complaint in the face of a motion to dismiss for failure to state a cause of action. They rejected the argument that a State Tort action provided an adequate and exclusive judicial remedy.
A Bivens claim can be based on conspiracy of federal agents by showing:
(1) the existence of an express or implied agreement among the defendants to deprive someone of constitutional rights, and
(2) an actual deprivation of those constitutional rights resulting from the agreement.
It is the Plaintiff’s contention that the above two acts have occurred. Furthermore, 28 USCS § 1346 (2004) provides that:
(b) (1) Subject to the provisions of chapter 171 of this title [28 USCS §§ 2671 et seq.], the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
Moreover, the Plaintiff contends that the Defendant has committed intrinsic and extrinsic fraud along with other wrongful acts. The Defendant has submitted to the court, marked as Exhibit B, a statement that is misleading, conspiratorial and filled with error and conjecture. In a single word, the statement that is false. The Defendant has signed this document under penalty of perjury with the express intention of misleading the court, which constitutes the commission of intrinsic fraud. The Defendant has fraudulently kept the Plaintiff from accessing information and obtaining evidence that would further the Plaintiff’s cause and seeking justice, thus constituting extrinsic fraud. Given that the Department of Homeland Security has a history of placing false statements within its documents to further its position, an act which I have personal knowledge and which can be substantiated by evidence, this makes the Plaintiff’s plea for a trial all the more urgent. The Department of Homeland Security has a history of violating the constitutional rights of the inhabitants of this land as well as sidestepping the safeguards of the constitution. The Plaintiff further contends that the Defendant has committed Fraud and Abuse of Process as well as intentional and negligent infliction of emotional distress.
One should not blindly follow a system that, instead of awakening a sense of justice and truth, lulls the American people into a sleep which disallows their freedom. The Court must not forget that personal liberty is the indispensable ingredient of the American experience. Otherwise, in its zeal to constrain overarching federal power, the Court might frustrate the responsibility of the national government under the 14th Amendment to secure individual rights.
Many state supreme courts over the last decade have limited or abolished the defense of sovereign immunity, by finding that the doctrine was court made, and declaring it to be unfair. Most state legislatures in the United Sates have given up or waived some portion of their sovereign immunity. Waiver of some immunity is commonly done for public policy reasons.
Sovereign immunity at the Federal level is particularly indefensible since "We the People," who ordained and established these United States and created the Federal "sovereign," did not see fit to cloak "our sovereign" with immunity for its actions. There is no constitutional basis for sovereign immunity, it is purely and simply a judge-made legal anachronism. The 10th Amendment restricts national powers by limiting them to functions enumerated in the Constitution. “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 (emphasis added). The 14th Amendment increases those powers by authorizing congressional intervention when states violate individual rights. And the 11th Amendment states in relevant part that "The Judicial power of the United States shall not . . . extend to any suit . . . against [a] State by Citizens of another State."
Despite its pernicious nature and logically indefensible character, the purpose of my opposition is not to argue for abolition of the doctrine but, rather, to discuss its operation, scope and effect as pertains to the Plaintiff’s particular case. The interest served by federal sovereign immunity (the United States' freedom from paying damages without Congressional consent) and Federal sovereign immunity is a defense to liability rather than a right to be free from trial. The Plaintiff has not asked for an award of monetary damages.
Federal Tort Claims Act (1948) which removes the power of the federal government to claim immunity from a lawsuit for damages due to negligent or intentional injury by a federal employee in the scope of his/her work for the government. It also established a set of regulations and format for making claims, giving jurisdiction to federal district courts. The United States of America provides for Congressional Withdrawal of Immunity. The Constitution delegates to Congress power to legislate to affect the government in some permissible ways. At least in some instances when Congress does so, it may subject the government themselves to suit at the initiation of individuals to implement the legislation. The clearest example arises from the Reconstruction Amendments, which are direct restrictions upon government powers and which expressly provide for congressional implementing legislation. Thus, ''the Eleventh Amendment and the principle of sovereignty which it embodies . . . are necessarily limited, by the enforcement provisions of Sec. 5 of the Fourteenth Amendment.''
Congress waived sovereign immunity for a wide range of tort claims when it enacted the Federal Tort Claims Act. The FTCA permits a tort suit against the United States 'where injury to person or property is "caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment.' Tort Actions Against Government Officials .--In Tindal v. Wesley, 130 the Court adopted the rule of United States v. Lee, 131 a tort suit against federal officials, to permit a tort action against state officials to recover real property held by them and claimed by the State and to obtain damages for the period of withholding. The immunity of a State from suit has long been held not to extend to actions against state officials for damages arising out of willful and negligent disregard of state laws. The reach of the rule is evident in Scheuer v. Rhodes, in which the Court held that plaintiffs were not barred by the Eleventh Amendment or other immunity doctrines from suing the governor and other officials of a State alleging that they deprived plaintiffs of federal rights under color of state law and seeking damages, when it was clear that plaintiffs were seeking to impose individual and personal liability on the officials. There was no ''executive immunity'' from suit, the Court held; rather, the immunity of state officials is qualified and varies according to the scope of discretion and responsibilities of the particular office and the circumstances existing at the time the challenged action was taken.
28 U.S.C. §[1346[b] - Subject to the provisions of chapter 171 of this title, the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
The Federal Tort Claims Act [FTCA] allows for the recovery of attorney fees as damages for abuse of process and malicious prosecution if "the law of the place" where the tort occurred so provides, the U.S. Circuit Court for the District of Columbia said on Sept. 2. Tri-State Hospital Supply Corp. v. U.S., No. 02-5045.
The U.S. Department of Justice sued Tri-State, a company that imported surgical instruments from Pakistan, for allegedly falsifying customs forms. After the DOJ dropped its fraud claim, the jury returned a verdict in Tri-State's favor on the remaining negligence claim. Tri-State then sued the DOJ under the FTCA, alleging malicious prosecution and abuse of process and seeking $3.2 million in compensation for the attorney fees it spent defending itself. But ruling that it lacked subject-matter jurisdiction, a D.C. federal court dismissed the case. Reversing, the circuit court noted that the FTCA grants exclusive jurisdiction to the district courts over civil actions against the U.S. seeking money damages for injury or loss of property under circumstances where the country, if it were a private person, would be liable to the claimant "in accordance with the law of the place where the act or omission occurred." It ruled that damages incurred in defending a suit later found to be malicious or abusive may be characterized as damages for "injury of loss of property."
Pursuant to 42 U.S.C. Sec. 1983 (Civil Action for the Deprivation of Rights), Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
Generally, the United States can be held liable under the FTCA when liability would attach to a private actor under the law of the place where the tort occurred. Delta Savings Bank v. United States, 265 F.3d 1017, 1024 (9th Cir. 2001). However, the United States may be liable " 'for the performance of some activities that private persons do not perform,' . . . when a state or municipal entity would be held liable under the law where the activity occurred." Concrete Tie of San Diego, Inc. v. Liberty Constr., Inc., 107 F.3d 1368, 1371 (9th Cir. 1997) (quoting Hines v. United States, 60 F.3d 1442, 1448 (9th Cir. 1995)). In such instances, liability attaches if the United States breaches "a mandatory duty for which a cause of action lies." Id.
Taking all of the allegations of the Plaintiff’s complaint as true, and construing these facts in the light most favorable to the nonmoving party of the Motion to Dismiss (Plaintiff), as the court must when reviewing entry of final judgment on a 12(b)(1) and 12(b)(6) motion to dismiss, see United States v. One 1997 Mercedes E420, 175 F.3d 1129, 1131 n.1 (9th Cir. 1999), in deciding a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party and must draw all permissible inferences from the submitted affidavits, exhibits, interrogatory answers, and depositions in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 155, 91 L. Ed. 2d 202, 106 S. Ct. 2505 [1986]; Van v. City of New York, 72 F.3d 1040, 1048-49 [2d Cir. 1995], The Plaintiff holds that the Defendant has failed to carry its burden here.
The Defendant claims that the Plaintiff’s exclusive forum for addressing Plaintiff’s claims is the Civil In Rem Forfeiture Action. The Plaintiff disagrees. The cases cited by the Defendant in support of its supposition do not apply to the Plaintiff’s case and the Plaintiff’s case is thus differentiated based on the following federal codes:
Section 274.1 (8 U.S.C. 1324) (h) (2) describes the date of an action to be the date of postmark if filed by mail.
Section 274 (8 U.S.C. 1324) (b) (1) states:
(A) That no conveyance used by any person as a common carrier in the transaction of business as a common carrier shall be forfeited unless it shall appear that the owner of other person in charge of such conveyance was a consenting party or privy to the illegal act. (The Plaintiff was not a consenting party or privy to an illegal act.)
Section 274.1 (8 U.S.C. 1324) (o) The term “record” means an arrest for a related crime followed by a conviction, except that a single arrest and conviction and the expiration of any sentence imposed as a result of the conviction, all of which occurred more than ten years prior to the date a claimant acquired a property interest in the seized or forfeited conveyance, is not considered a record. Also related 28 CFR Part 9.2 (q). (The Plaintiff does not have a record).
Section 274.5 (8 U.S.C. 1324)(c)(2,3) The owner of a seized conveyance shall be informed of the right to request a personal interview with an immigration officer and to present evidence to establish;
(2) That the conveyance is not subject to forfeiture; or
(3) That the conveyance was used in an act to which the owner was not privy, or did not consent, and the owner took all reasonable steps to prevent the illegal use of the conveyance (The Plaintiff requested and attended a personal interview with the Department of Homeland Security and provided overwhelming evidence of Plaintiff’s claim).
Section 274.6 Proof of property interest (Provided by Plaintiff).
Section 274.8 Notice to owner and lien holder of seizure.
One hundred sixth Congress of the United States of America on January 24, 2000 states:
§ 983 (a) (1)(A)(i) In any nonjudicial civil forfeiture proceeding under a civil forfeiture stature, with respect to which, the Government is required to send written notice to interested parties, such notice shall be sent in a manner to achieve proper notice as soon as practicable, and in no case more than 60 days after the date of seizure. (The Defendant denied the Plaintiff due process by exceeding this limit).
§ 983 (a) (1) (F) (i) If the government does not send notice of a seizure of property in accordance with subparagraph (A) to the person from whom the property was seized, and no extension of time is granted, the Government shall return the property to that person without prejudice to the right of the Government to commence a forfeiture proceeding at a later time (Again the Defendant denied the Plaintiff due process by not obeying this statute).
§ 983 (a) (3)(B) The Government shall promptly release the property pursuant to regulations promulgated by the Attorney General, and may not take any further action to effect the civil forfeiture of such property in connection with the underlying offense.
§ 983 (f) Release of Seized Property (3)(A) If not later than 15 days after the date of a request under paragraph (2) the property has not been released, the claimant may file a petition in the district court in which the complaint has been filed or, if no complaint has been filed, in the district court in which the seizure warrant was issued or in the district court for the district in which the property was seized (By this statute the Plaintiff challenges the Defendant’s argument that the Civil In Rem Forfeiture Action is the exclusive forum for addressing the Plaintiff’s complaint).
The Plaintiff’s complaint was initiated before the Defendant’s In Rem Forfeiture Action and thus takes precedence. The Defendant states that “Equity always has been hesitant to act if its remedy would disrupt an ongoing grand jury investigation.” The only way Justice could disrupt is if there is Injustice to be disrupted. The Defendant mentions an ongoing grand jury investigation. The Plaintiff has not knowingly or intentionally been involved in any criminal activity. The Defendant had the obligation of returning the aircraft on two separate occasions, as mentioned above, and failed to do so, violating the Plaintiff’s right under the federal law and the Constitution. The value of the aircraft has diminished enormously due to the lack of the Defendant to follow federal code. The aircraft is not subject to forfeiture because the Plaintiff did not violate 8 U.S.C. §1324(a)(1)(A)(ii) by knowingly or in reckless disregard of the fact that an alien has come to, entered, or remains in the united States in violation of law.
The Defendant violated federal code by not returning the aircraft to the defendant as prescribed by 18 U.S.C. §983(a) (1) (F) which states, “If the Government does not send notice of a seizure of property in accordance with subparagraph (A) to the person from whom the property was seized, and no extension of time is granted, the Government shall return the property to that person without prejudice to the right of the Government to commence a forfeiture proceeding at a later time. The Government shall not be required to return contraband or other property that the person from whom the property was seized may not legally possess.” In short, the Defendant is set on stealing the Plaintiff’s property.
IV. CONCLUSION
As set forth extensively above, even if the Defendant is successful in retaining the Plaintiff’s property under the argument it has presented, the court must not dismiss the Plaintiff’s complaint in its entirety because there are too many issues that must be addressed. Members from both the House of Congress and the House of Senate are investing the Department of Homeland Security because of the abuses mentioned above. This is a matter to which the American people cannot close their eyes.
V. VERIFICATION
I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct to the best of my knowledge. Any discrepancies or faults in this document are not intentional and would be the result of lack of knowledge and experience in the subject matter.
Executed on May 21, 2004 by:
Juan David De Jesus
411 NORTH PALM DRIVE #14
BEVERLY HILLS, CA 90210
In Pro Per
UNITED STATES DISTRICT COURT OF THE CENTRAL DISTRICT OF CALIFORNIA NINTH CIRCUIT
JUAN DAVID DE JESUS, a United States Citizen
Plaintiff,
vs.
UNITED STATES OF AMERICA
Defendant Case No.: CV 04-1207 NM (FMOx)
PLAINTIFF’S OPPOSSITION TO DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT
Dated this 21st day of May, 2004
JUAN DAVID DE JESUS
411 NORTH PALM DRIVE #14
BEVERLY HILLS, CA 90210
I. INTRODUCTION
P. Greg Parham, Special Assistant United States Attorney filed on behalf of the United States (Defendant) a Motion to Dismiss Plaintiff’s Complaint. The Motion is dated April 23, 2004. The Defendant contends that the court lacks subject matter jurisdiction and that the Plaintiff has failed to state a claim upon which relief can be granted.
The Plaintiff, Juan David De Jesus, opposes the Defendant’s Motion to Dismiss based on the contention that the court does possess subject matter jurisdiction and that the Plaintiff has clearly stated a claim upon which relief can be granted. Moreover, the Plaintiff denies being involved in any criminal activity.
Furthermore, the counsel for the Defendant did not follow Local Rule 7-3 which clearly states that, “counsel contemplating the filing of any motion shall first contact opposing counsel to discuss thoroughly, preferably in person, the substance of the contemplated motion and any potential resolution.” Counsel for the Defendant informed the Plaintiff only of his intentions to move to dismiss but failed to discuss any potential resolution.
In the introduction, the Defendant prefaces its statement by saying that the Plaintiff’s aircraft was seized by the Department of Homeland Security on September 10, 2003 during the course of an illegal alien smuggling investigation concerning the plaintiff. The plaintiff denies any connection to alien smuggling. The United States is well aware of the Plaintiff’s contentions.
Even though the Defendant claims Sovereign Immunity, the Plaintiff will show that this doctrine does not apply in this case. The concept of Equitable Relief does not apply in this circumstance because the Plaintiff has not requested a monetary award for damages. The Plaintiff has been previously denied an Injunction and a Restraining Order where the concept of Equitable Relief would apply.
The Plaintiff’s complaint should not be dismissed in its entirety because there are several issues addressed and not just the issue of the Plaintiff’s aircraft.
This document presented by the Defendant used in Exhibit B is full misstatements, ambiguities and contradictions; and the testimonies of those individuals giving the statements are not supported by a sworn statement at the end of the document.
II. STATEMENT OF FACTS
The Government is being unjustly enriched and is holding specific property of the plaintiff. This is a point that the court must address.
The Government has committed Fraud and Misrepresentation of material facts as well as perjury in its document labeled as Exhibit B.
In the Defendant’s introductory statement in Section II, (Statement of Facts), the Defendant cites McCarthy v. U.S., 850 F.2d 558, 560 (9th Cir. 1988) as support for its contention that extrinsic evidence may be considered. This is a misuse of the principle considering that the Supreme Court has held that extrinsic evidence goes to impeach a witness to expose biases, prejudices, or ulterior motives as they may relate to issues or personalities in the case at hand, only then, evidence will be allowed. United States v. Abel, 469 U.S. 45, 54 (1984).
The Plaintiff contends that his aircraft is not subject to forfeiture because the Plaintiff has shown ample evidence pursuant to Section 274 (8 U.S.C. 1324) and Section 983 in both the Personal Interview with the Department of Homeland Security on December 10, 2003 and with the Plaintiff’s Petition for Remission or Mitigation of Forfeiture. The Plaintiff has not, knowingly or in reckless disregard of the law, committed any crimes.
III. ARGUMENT
The Government claims Sovereign Immunity. But the Government cannot claim this right because it is intended to be used when the United States is requested to withdraw money from the Treasury. My suit is not one for money rather one of principle. Sovereign immunity is a legal doctrine which, under some circumstances, protects the federal, state, and tribal governments within the United States from lawsuits which would cause those governments to pay out money, real estate, or goods from the governmental treasury. The basic idea behind sovereign immunity is that property held by the government (including assets in the public treasury) is in trust for all the citizens of that particular government. The public treasury and public property are, therefore, to be used for the benefit of all the citizens equally--not just a few individuals (such as the people who file lawsuits). If, through lawsuit, a plaintiff can collect money from the government for some wrong the government has done him, the public treasury will be reduced for the benefit of that one person. There will then be less money to provide services to all the other citizens of the government. All the citizens will suffer because of the drain on the public treasury caused by a single citizen. Courts have said that when someone claiming to have been injured by the government or its employees' files suit for money damages against the government, and the government has not expressly waived its immunity, the court will not even consider the lawsuit. Instead, the court will dismiss the suit and instruct the injured person to seek payment for his injuries from the legislature or chief executive of the government. The government, say the courts, is immune from any lawsuit seeking money damages against it. Because the legislative body and the chief executive are the elected representatives of all the people, only they should decide where public money (and other property) belonging to all the people should be spent. Many contend that this is not a decision for the courts. The Plaintiff’s case must be distinguished in that the Plaintiff is not seeking an award for monetary damages.
Even though the Plaintiff is not requesting award of monetary damages in the present complaint, the Plaintiff does not waive his right to do so in the future. The “BIVENS ACTIONS” allows for Damages remedies for constitutional violations committed by federal agents and became available in 1971. The Supreme Court had long held that federal courts had the power to grant relief not expressly authorized by statute as well as the power to adjust remedies to grant relief made necessary by the particular circumstances of the case at hand. However, it was not until the Court's decision in Bivens v. 6 unknown named federal agents 403US388, 91SCT1999, 29LE2d 619(1971) that a violation of a specific constitutional amendment by a Federal employee was recognized as a cause of action for monetary damages. In the case of Bivens vs. six employees of the US Department of Justice, the Plaintiff alleged that Federal Agents had arrested him and searched his home without a warrant or probable cause in violation of the 4th amendment's ban against unreasonable searches and seizures. The Court upheld the reasonableness of the complaint in the face of a motion to dismiss for failure to state a cause of action. They rejected the argument that a State Tort action provided an adequate and exclusive judicial remedy.
A Bivens claim can be based on conspiracy of federal agents by showing:
(1) the existence of an express or implied agreement among the defendants to deprive someone of constitutional rights, and
(2) an actual deprivation of those constitutional rights resulting from the agreement.
It is the Plaintiff’s contention that the above two acts have occurred. Furthermore, 28 USCS § 1346 (2004) provides that:
(b) (1) Subject to the provisions of chapter 171 of this title [28 USCS §§ 2671 et seq.], the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
Moreover, the Plaintiff contends that the Defendant has committed intrinsic and extrinsic fraud along with other wrongful acts. The Defendant has submitted to the court, marked as Exhibit B, a statement that is misleading, conspiratorial and filled with error and conjecture. In a single word, the statement that is false. The Defendant has signed this document under penalty of perjury with the express intention of misleading the court, which constitutes the commission of intrinsic fraud. The Defendant has fraudulently kept the Plaintiff from accessing information and obtaining evidence that would further the Plaintiff’s cause and seeking justice, thus constituting extrinsic fraud. Given that the Department of Homeland Security has a history of placing false statements within its documents to further its position, an act which I have personal knowledge and which can be substantiated by evidence, this makes the Plaintiff’s plea for a trial all the more urgent. The Department of Homeland Security has a history of violating the constitutional rights of the inhabitants of this land as well as sidestepping the safeguards of the constitution. The Plaintiff further contends that the Defendant has committed Fraud and Abuse of Process as well as intentional and negligent infliction of emotional distress.
One should not blindly follow a system that, instead of awakening a sense of justice and truth, lulls the American people into a sleep which disallows their freedom. The Court must not forget that personal liberty is the indispensable ingredient of the American experience. Otherwise, in its zeal to constrain overarching federal power, the Court might frustrate the responsibility of the national government under the 14th Amendment to secure individual rights.
Many state supreme courts over the last decade have limited or abolished the defense of sovereign immunity, by finding that the doctrine was court made, and declaring it to be unfair. Most state legislatures in the United Sates have given up or waived some portion of their sovereign immunity. Waiver of some immunity is commonly done for public policy reasons.
Sovereign immunity at the Federal level is particularly indefensible since "We the People," who ordained and established these United States and created the Federal "sovereign," did not see fit to cloak "our sovereign" with immunity for its actions. There is no constitutional basis for sovereign immunity, it is purely and simply a judge-made legal anachronism. The 10th Amendment restricts national powers by limiting them to functions enumerated in the Constitution. “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 (emphasis added). The 14th Amendment increases those powers by authorizing congressional intervention when states violate individual rights. And the 11th Amendment states in relevant part that "The Judicial power of the United States shall not . . . extend to any suit . . . against [a] State by Citizens of another State."
Despite its pernicious nature and logically indefensible character, the purpose of my opposition is not to argue for abolition of the doctrine but, rather, to discuss its operation, scope and effect as pertains to the Plaintiff’s particular case. The interest served by federal sovereign immunity (the United States' freedom from paying damages without Congressional consent) and Federal sovereign immunity is a defense to liability rather than a right to be free from trial. The Plaintiff has not asked for an award of monetary damages.
Federal Tort Claims Act (1948) which removes the power of the federal government to claim immunity from a lawsuit for damages due to negligent or intentional injury by a federal employee in the scope of his/her work for the government. It also established a set of regulations and format for making claims, giving jurisdiction to federal district courts. The United States of America provides for Congressional Withdrawal of Immunity. The Constitution delegates to Congress power to legislate to affect the government in some permissible ways. At least in some instances when Congress does so, it may subject the government themselves to suit at the initiation of individuals to implement the legislation. The clearest example arises from the Reconstruction Amendments, which are direct restrictions upon government powers and which expressly provide for congressional implementing legislation. Thus, ''the Eleventh Amendment and the principle of sovereignty which it embodies . . . are necessarily limited, by the enforcement provisions of Sec. 5 of the Fourteenth Amendment.''
Congress waived sovereign immunity for a wide range of tort claims when it enacted the Federal Tort Claims Act. The FTCA permits a tort suit against the United States 'where injury to person or property is "caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment.' Tort Actions Against Government Officials .--In Tindal v. Wesley, 130 the Court adopted the rule of United States v. Lee, 131 a tort suit against federal officials, to permit a tort action against state officials to recover real property held by them and claimed by the State and to obtain damages for the period of withholding. The immunity of a State from suit has long been held not to extend to actions against state officials for damages arising out of willful and negligent disregard of state laws. The reach of the rule is evident in Scheuer v. Rhodes, in which the Court held that plaintiffs were not barred by the Eleventh Amendment or other immunity doctrines from suing the governor and other officials of a State alleging that they deprived plaintiffs of federal rights under color of state law and seeking damages, when it was clear that plaintiffs were seeking to impose individual and personal liability on the officials. There was no ''executive immunity'' from suit, the Court held; rather, the immunity of state officials is qualified and varies according to the scope of discretion and responsibilities of the particular office and the circumstances existing at the time the challenged action was taken.
28 U.S.C. §[1346[b] - Subject to the provisions of chapter 171 of this title, the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
The Federal Tort Claims Act [FTCA] allows for the recovery of attorney fees as damages for abuse of process and malicious prosecution if "the law of the place" where the tort occurred so provides, the U.S. Circuit Court for the District of Columbia said on Sept. 2. Tri-State Hospital Supply Corp. v. U.S., No. 02-5045.
The U.S. Department of Justice sued Tri-State, a company that imported surgical instruments from Pakistan, for allegedly falsifying customs forms. After the DOJ dropped its fraud claim, the jury returned a verdict in Tri-State's favor on the remaining negligence claim. Tri-State then sued the DOJ under the FTCA, alleging malicious prosecution and abuse of process and seeking $3.2 million in compensation for the attorney fees it spent defending itself. But ruling that it lacked subject-matter jurisdiction, a D.C. federal court dismissed the case. Reversing, the circuit court noted that the FTCA grants exclusive jurisdiction to the district courts over civil actions against the U.S. seeking money damages for injury or loss of property under circumstances where the country, if it were a private person, would be liable to the claimant "in accordance with the law of the place where the act or omission occurred." It ruled that damages incurred in defending a suit later found to be malicious or abusive may be characterized as damages for "injury of loss of property."
Pursuant to 42 U.S.C. Sec. 1983 (Civil Action for the Deprivation of Rights), Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
Generally, the United States can be held liable under the FTCA when liability would attach to a private actor under the law of the place where the tort occurred. Delta Savings Bank v. United States, 265 F.3d 1017, 1024 (9th Cir. 2001). However, the United States may be liable " 'for the performance of some activities that private persons do not perform,' . . . when a state or municipal entity would be held liable under the law where the activity occurred." Concrete Tie of San Diego, Inc. v. Liberty Constr., Inc., 107 F.3d 1368, 1371 (9th Cir. 1997) (quoting Hines v. United States, 60 F.3d 1442, 1448 (9th Cir. 1995)). In such instances, liability attaches if the United States breaches "a mandatory duty for which a cause of action lies." Id.
Taking all of the allegations of the Plaintiff’s complaint as true, and construing these facts in the light most favorable to the nonmoving party of the Motion to Dismiss (Plaintiff), as the court must when reviewing entry of final judgment on a 12(b)(1) and 12(b)(6) motion to dismiss, see United States v. One 1997 Mercedes E420, 175 F.3d 1129, 1131 n.1 (9th Cir. 1999), in deciding a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party and must draw all permissible inferences from the submitted affidavits, exhibits, interrogatory answers, and depositions in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 155, 91 L. Ed. 2d 202, 106 S. Ct. 2505 [1986]; Van v. City of New York, 72 F.3d 1040, 1048-49 [2d Cir. 1995], The Plaintiff holds that the Defendant has failed to carry its burden here.
The Defendant claims that the Plaintiff’s exclusive forum for addressing Plaintiff’s claims is the Civil In Rem Forfeiture Action. The Plaintiff disagrees. The cases cited by the Defendant in support of its supposition do not apply to the Plaintiff’s case and the Plaintiff’s case is thus differentiated based on the following federal codes:
Section 274.1 (8 U.S.C. 1324) (h) (2) describes the date of an action to be the date of postmark if filed by mail.
Section 274 (8 U.S.C. 1324) (b) (1) states:
(A) That no conveyance used by any person as a common carrier in the transaction of business as a common carrier shall be forfeited unless it shall appear that the owner of other person in charge of such conveyance was a consenting party or privy to the illegal act. (The Plaintiff was not a consenting party or privy to an illegal act.)
Section 274.1 (8 U.S.C. 1324) (o) The term “record” means an arrest for a related crime followed by a conviction, except that a single arrest and conviction and the expiration of any sentence imposed as a result of the conviction, all of which occurred more than ten years prior to the date a claimant acquired a property interest in the seized or forfeited conveyance, is not considered a record. Also related 28 CFR Part 9.2 (q). (The Plaintiff does not have a record).
Section 274.5 (8 U.S.C. 1324)(c)(2,3) The owner of a seized conveyance shall be informed of the right to request a personal interview with an immigration officer and to present evidence to establish;
(2) That the conveyance is not subject to forfeiture; or
(3) That the conveyance was used in an act to which the owner was not privy, or did not consent, and the owner took all reasonable steps to prevent the illegal use of the conveyance (The Plaintiff requested and attended a personal interview with the Department of Homeland Security and provided overwhelming evidence of Plaintiff’s claim).
Section 274.6 Proof of property interest (Provided by Plaintiff).
Section 274.8 Notice to owner and lien holder of seizure.
One hundred sixth Congress of the United States of America on January 24, 2000 states:
§ 983 (a) (1)(A)(i) In any nonjudicial civil forfeiture proceeding under a civil forfeiture stature, with respect to which, the Government is required to send written notice to interested parties, such notice shall be sent in a manner to achieve proper notice as soon as practicable, and in no case more than 60 days after the date of seizure. (The Defendant denied the Plaintiff due process by exceeding this limit).
§ 983 (a) (1) (F) (i) If the government does not send notice of a seizure of property in accordance with subparagraph (A) to the person from whom the property was seized, and no extension of time is granted, the Government shall return the property to that person without prejudice to the right of the Government to commence a forfeiture proceeding at a later time (Again the Defendant denied the Plaintiff due process by not obeying this statute).
§ 983 (a) (3)(B) The Government shall promptly release the property pursuant to regulations promulgated by the Attorney General, and may not take any further action to effect the civil forfeiture of such property in connection with the underlying offense.
§ 983 (f) Release of Seized Property (3)(A) If not later than 15 days after the date of a request under paragraph (2) the property has not been released, the claimant may file a petition in the district court in which the complaint has been filed or, if no complaint has been filed, in the district court in which the seizure warrant was issued or in the district court for the district in which the property was seized (By this statute the Plaintiff challenges the Defendant’s argument that the Civil In Rem Forfeiture Action is the exclusive forum for addressing the Plaintiff’s complaint).
The Plaintiff’s complaint was initiated before the Defendant’s In Rem Forfeiture Action and thus takes precedence. The Defendant states that “Equity always has been hesitant to act if its remedy would disrupt an ongoing grand jury investigation.” The only way Justice could disrupt is if there is Injustice to be disrupted. The Defendant mentions an ongoing grand jury investigation. The Plaintiff has not knowingly or intentionally been involved in any criminal activity. The Defendant had the obligation of returning the aircraft on two separate occasions, as mentioned above, and failed to do so, violating the Plaintiff’s right under the federal law and the Constitution. The value of the aircraft has diminished enormously due to the lack of the Defendant to follow federal code. The aircraft is not subject to forfeiture because the Plaintiff did not violate 8 U.S.C. §1324(a)(1)(A)(ii) by knowingly or in reckless disregard of the fact that an alien has come to, entered, or remains in the united States in violation of law.
The Defendant violated federal code by not returning the aircraft to the defendant as prescribed by 18 U.S.C. §983(a) (1) (F) which states, “If the Government does not send notice of a seizure of property in accordance with subparagraph (A) to the person from whom the property was seized, and no extension of time is granted, the Government shall return the property to that person without prejudice to the right of the Government to commence a forfeiture proceeding at a later time. The Government shall not be required to return contraband or other property that the person from whom the property was seized may not legally possess.” In short, the Defendant is set on stealing the Plaintiff’s property.
IV. CONCLUSION
As set forth extensively above, even if the Defendant is successful in retaining the Plaintiff’s property under the argument it has presented, the court must not dismiss the Plaintiff’s complaint in its entirety because there are too many issues that must be addressed. Members from both the House of Congress and the House of Senate are investing the Department of Homeland Security because of the abuses mentioned above. This is a matter to which the American people cannot close their eyes.
V. VERIFICATION
I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct to the best of my knowledge. Any discrepancies or faults in this document are not intentional and would be the result of lack of knowledge and experience in the subject matter.
Executed on May 21, 2004 by:
Juan David De Jesus
Wednesday, May 19, 2004
Rule C. Actions in Rem: Special Provisions.
Rule C. Actions in Rem: Special Provisions.: "FEDERAL RULES FOR CIVIL PROCEDURE"
Federal Forfeiture Manual - Table of Contents
Federal Forfeiture Manual - Table of Contents: "The Center for Forfeiture Law
Federal Forfeiture Practice Manual "
Federal Forfeiture Practice Manual "
11.10 CIVIL IN REM FORFEITURE ACTIONS (N.J.S.A. 2C:64-1)
11.10 CIVIL IN REM FORFEITURE ACTIONS (N.J.S.A. 2C:64-1): "11.10 CIVIL IN REM FORFEITURE ACTIONS (N.J.S.A. 2C:64-1) (11/00) "
Tuesday, May 18, 2004
Notes on Title 18 Chapter 46 Section 983
TITLE 18 > PART I > CHAPTER 46 > Sec. 983.
Notes on Sec. 983.
SOURCE
Added and amended Pub. L. 106-185, Sec. 2(a), 9, Apr. 25, 2000, 114 Stat. 202, 216
Pub. L. 106-561, Sec. 3(a), Dec. 21, 2000, 114 Stat. 2791
Pub. L. 107-56, title III, Sec. 316(d), Oct. 26, 2001, 115 Stat. 310.
REFERENCES IN TEXT
The Supplemental Rules for Certain Admiralty and Maritime Claims, referred to in subsecs. (a)(3)(A), (4)(A) and (f)(7)(A)(ii), are set out as part of the Federal Rules of Civil Procedure in the Appendix to Title 28, Judiciary and Judicial Procedure. The Federal Rules of Civil Procedure, referred to in subsec. (h)(2), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure.
The Tariff Act of 1930, referred to in subsec. (i)(2)(A), is act June 17, 1930, ch. 497, 46 Stat. 590, as amended, which is classified generally to chapter 4 (Sec. 1202 et seq.) of Title 19, Customs Duties. For complete classification of this Act to the Code, see section 1654 of Title 19 and Tables. The Internal Revenue Code of 1986, referred to in subsec. (i)(2)(B), is classified generally to Title 26, Internal Revenue Code. The Federal Food, Drug, and Cosmetic Act, referred to in subsec. (i)(2)(C), is act June 25, 1938, ch. 675, 52 Stat. 1040, as amended, which is classified generally to chapter 9 (Sec. 301 et seq.) of Title 21, Food and Drugs. For complete classification of this Act to the Code, see section 301 of Title 21 and Tables.
The Trading with the Enemy Act, referred to in subsec. (i)(2)(D), is act Oct. 6, 1917, ch. 106, 40 Stat. 411, as amended, which is classified to sections 1 to 6, 7 to 39 and 41 to 44 of Title 50, Appendix, War and National Defense. For complete classification of this Act to the Code, see Tables. The International Emergency Economic Powers Act, referred to in (i)(2)(D), is title II of Pub. L. 95-223, Dec. 28, 1977, 91 Stat. 1626, as amended, which is classified generally to chapter 35 (Sec. 1701 et seq.) of Title 50, War and National Defense. For complete classification of this Act to the Code, see Short Title note set out under section 1701 of Title 50 and Tables.
The Federal Rules of Evidence, referred to in subsec. (j)(4), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure
AMENDMENTS
2001 - Subsec. (i)(2)(D). Pub. L. 107-56 inserted ''or the International Emergency Economic Powers Act (IEEPA) (50 U.S.C. 1701 et seq.)'' before semicolon. 2000 - Subsec. (a)(2)(C)(ii). Pub. L. 106-561 struck out ''(and provide customary documentary evidence of such interest if available) and state that the claim is not frivolous'' after ''such property''. Subsec. (j). Pub. L. 106-185, Sec. 9, added subsec. (j).
TERMINATION DATE OF 2001 AMENDMENT
Amendments by title III of Pub. L. 107-56 to terminate effective on and after the first day of fiscal year 2005 if Congress enacts a joint resolution that such amendments no longer have the force of law, see section 303 of Pub. L. 107-56, set out as a Four-Year Congressional Review; Expedited Consideration note under section 5311 of Title 31, Money and Finance
EFFECTIVE DATE OF 2000 AMENDMENT
Pub. L. 106-561, Sec. 3(b), Dec. 21, 2000, 114 Stat. 2791, provided that: ''The amendment made by this section (amending this section) shall take effect as if included in the amendment made by section 2(a) of Public Law 106-185.'
EFFECTIVE DATE
Section applicable to any forfeiture proceeding commenced on or after the date that is 120 days after Apr. 25, 2000, see section 21 of Pub. L. 106-185, set out as an Effective Date of 2000 Amendment note under section 1324 of Title 8, Aliens and Nationality
ANTI-TERRORIST FORFEITURE PROTECTION
Pub. L. 107-56, title III, Sec. 316(a)-(c), Oct. 26, 2001, 115 Stat. 309, provided that: ''(a) Right to Contest. - An owner of property that is confiscated under any provision of law relating to the confiscation of assets of suspected international terrorists, may contest that confiscation by filing a claim in the manner set forth in the Federal Rules of Civil Procedure (Supplemental Rules for Certain Admiralty and Maritime Claims) (28 App. U.S.C.), and asserting as an affirmative defense that - ''(1) the property is not subject to confiscation under such provision of law; or ''(2) the innocent owner provisions of section 983(d) of title 18, United States Code, apply to the case. ''(b) Evidence. - In considering a claim filed under this section, a court may admit evidence that is otherwise inadmissible under the Federal Rules of Evidence (28 App. U.S.C.), if the court determines that the evidence is reliable, and that compliance with the Federal Rules of Evidence may jeopardize the national security interests of the United States.
''(c) Clarifications. - ''(1) Protection of rights. - The exclusion of certain provisions of Federal law from the definition of the term 'civil forfeiture statute' in section 983(i) of title 18, United States Code, shall not be construed to deny an owner of property the right to contest the confiscation of assets of suspected international terrorists under - ''(A) subsection (a) of this section; ''(B) the Constitution; or ''(C) subchapter II of chapter 5 of title 5, United States Code (commonly known as the 'Administrative Procedure Act'). ''(2) Savings clause. - Nothing in this section shall limit or otherwise affect any other remedies that may be available to an owner of property under section 983 of title 18, United States Code, or any other provision of law.'
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in section 981 of this title; title 28 section 2467
Notes on Sec. 983.
SOURCE
Added and amended Pub. L. 106-185, Sec. 2(a), 9, Apr. 25, 2000, 114 Stat. 202, 216
Pub. L. 106-561, Sec. 3(a), Dec. 21, 2000, 114 Stat. 2791
Pub. L. 107-56, title III, Sec. 316(d), Oct. 26, 2001, 115 Stat. 310.
REFERENCES IN TEXT
The Supplemental Rules for Certain Admiralty and Maritime Claims, referred to in subsecs. (a)(3)(A), (4)(A) and (f)(7)(A)(ii), are set out as part of the Federal Rules of Civil Procedure in the Appendix to Title 28, Judiciary and Judicial Procedure. The Federal Rules of Civil Procedure, referred to in subsec. (h)(2), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure.
The Tariff Act of 1930, referred to in subsec. (i)(2)(A), is act June 17, 1930, ch. 497, 46 Stat. 590, as amended, which is classified generally to chapter 4 (Sec. 1202 et seq.) of Title 19, Customs Duties. For complete classification of this Act to the Code, see section 1654 of Title 19 and Tables. The Internal Revenue Code of 1986, referred to in subsec. (i)(2)(B), is classified generally to Title 26, Internal Revenue Code. The Federal Food, Drug, and Cosmetic Act, referred to in subsec. (i)(2)(C), is act June 25, 1938, ch. 675, 52 Stat. 1040, as amended, which is classified generally to chapter 9 (Sec. 301 et seq.) of Title 21, Food and Drugs. For complete classification of this Act to the Code, see section 301 of Title 21 and Tables.
The Trading with the Enemy Act, referred to in subsec. (i)(2)(D), is act Oct. 6, 1917, ch. 106, 40 Stat. 411, as amended, which is classified to sections 1 to 6, 7 to 39 and 41 to 44 of Title 50, Appendix, War and National Defense. For complete classification of this Act to the Code, see Tables. The International Emergency Economic Powers Act, referred to in (i)(2)(D), is title II of Pub. L. 95-223, Dec. 28, 1977, 91 Stat. 1626, as amended, which is classified generally to chapter 35 (Sec. 1701 et seq.) of Title 50, War and National Defense. For complete classification of this Act to the Code, see Short Title note set out under section 1701 of Title 50 and Tables.
The Federal Rules of Evidence, referred to in subsec. (j)(4), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure
AMENDMENTS
2001 - Subsec. (i)(2)(D). Pub. L. 107-56 inserted ''or the International Emergency Economic Powers Act (IEEPA) (50 U.S.C. 1701 et seq.)'' before semicolon. 2000 - Subsec. (a)(2)(C)(ii). Pub. L. 106-561 struck out ''(and provide customary documentary evidence of such interest if available) and state that the claim is not frivolous'' after ''such property''. Subsec. (j). Pub. L. 106-185, Sec. 9, added subsec. (j).
TERMINATION DATE OF 2001 AMENDMENT
Amendments by title III of Pub. L. 107-56 to terminate effective on and after the first day of fiscal year 2005 if Congress enacts a joint resolution that such amendments no longer have the force of law, see section 303 of Pub. L. 107-56, set out as a Four-Year Congressional Review; Expedited Consideration note under section 5311 of Title 31, Money and Finance
EFFECTIVE DATE OF 2000 AMENDMENT
Pub. L. 106-561, Sec. 3(b), Dec. 21, 2000, 114 Stat. 2791, provided that: ''The amendment made by this section (amending this section) shall take effect as if included in the amendment made by section 2(a) of Public Law 106-185.'
EFFECTIVE DATE
Section applicable to any forfeiture proceeding commenced on or after the date that is 120 days after Apr. 25, 2000, see section 21 of Pub. L. 106-185, set out as an Effective Date of 2000 Amendment note under section 1324 of Title 8, Aliens and Nationality
ANTI-TERRORIST FORFEITURE PROTECTION
Pub. L. 107-56, title III, Sec. 316(a)-(c), Oct. 26, 2001, 115 Stat. 309, provided that: ''(a) Right to Contest. - An owner of property that is confiscated under any provision of law relating to the confiscation of assets of suspected international terrorists, may contest that confiscation by filing a claim in the manner set forth in the Federal Rules of Civil Procedure (Supplemental Rules for Certain Admiralty and Maritime Claims) (28 App. U.S.C.), and asserting as an affirmative defense that - ''(1) the property is not subject to confiscation under such provision of law; or ''(2) the innocent owner provisions of section 983(d) of title 18, United States Code, apply to the case. ''(b) Evidence. - In considering a claim filed under this section, a court may admit evidence that is otherwise inadmissible under the Federal Rules of Evidence (28 App. U.S.C.), if the court determines that the evidence is reliable, and that compliance with the Federal Rules of Evidence may jeopardize the national security interests of the United States.
''(c) Clarifications. - ''(1) Protection of rights. - The exclusion of certain provisions of Federal law from the definition of the term 'civil forfeiture statute' in section 983(i) of title 18, United States Code, shall not be construed to deny an owner of property the right to contest the confiscation of assets of suspected international terrorists under - ''(A) subsection (a) of this section; ''(B) the Constitution; or ''(C) subchapter II of chapter 5 of title 5, United States Code (commonly known as the 'Administrative Procedure Act'). ''(2) Savings clause. - Nothing in this section shall limit or otherwise affect any other remedies that may be available to an owner of property under section 983 of title 18, United States Code, or any other provision of law.'
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in section 981 of this title; title 28 section 2467
Title 46 Section 983
TITLE 18 > PART I > CHAPTER 46 > Sec. 983. Prev | Next
Sec. 983. - General rules for civil forfeiture proceedings
(a) Notice; Claim; Complaint. -
(1)
(A)
(i)
Except as provided in clauses (ii) through (v), in any nonjudicial civil forfeiture proceeding under a civil forfeiture statute, with respect to which the Government is required to send written notice to interested parties, such notice shall be sent in a manner to achieve proper notice as soon as practicable, and in no case more than 60 days after the date of the seizure.
(ii)
No notice is required if, before the 60-day period expires, the Government files a civil judicial forfeiture action against the property and provides notice of that action as required by law.
(iii)
If, before the 60-day period expires, the Government does not file a civil judicial forfeiture action, but does obtain a criminal indictment containing an allegation that the property is subject to forfeiture, the Government shall either -
(I)
send notice within the 60 days and continue the nonjudicial civil forfeiture proceeding under this section; or
(II)
terminate the nonjudicial civil forfeiture proceeding, and take the steps necessary to preserve its right to maintain custody of the property as provided in the applicable criminal forfeiture statute.
(iv)
In a case in which the property is seized by a State or local law enforcement agency and turned over to a Federal law enforcement agency for the purpose of forfeiture under Federal law, notice shall be sent not more than 90 days after the date of seizure by the State or local law enforcement agency.
(v)
If the identity or interest of a party is not determined until after the seizure or turnover but is determined before a declaration of forfeiture is entered, notice shall be sent to such interested party not later than 60 days after the determination by the Government of the identity of the party or the party's interest.
(B)
A supervisory official in the headquarters office of the seizing agency may extend the period for sending notice under subparagraph (A) for a period not to exceed 30 days (which period may not be further extended except by a court), if the official determines that the conditions in subparagraph (D) are present.
(C)
Upon motion by the Government, a court may extend the period for sending notice under subparagraph (A) for a period not to exceed 60 days, which period may be further extended by the court for 60-day periods, as necessary, if the court determines, based on a written certification of a supervisory official in the headquarters office of the seizing agency, that the conditions in subparagraph (D) are present.
(D)
The period for sending notice under this paragraph may be extended only if there is reason to believe that notice may have an adverse result, including -
(i)
endangering the life or physical safety of an individual;
(ii)
flight from prosecution;
(iii)
destruction of or tampering with evidence;
(iv)
intimidation of potential witnesses; or
(v)
otherwise seriously jeopardizing an investigation or unduly delaying a trial.
(E)
Each of the Federal seizing agencies conducting nonjudicial forfeitures under this section shall report periodically to the Committees on the Judiciary of the House of Representatives and the Senate the number of occasions when an extension of time is granted under subparagraph (B).
(F)
If the Government does not send notice of a seizure of property in accordance with subparagraph (A) to the person from whom the property was seized, and no extension of time is granted, the Government shall return the property to that person without prejudice to the right of the Government to commence a forfeiture proceeding at a later time. The Government shall not be required to return contraband or other property that the person from whom the property was seized may not legally possess.
(2)
(A)
Any person claiming property seized in a nonjudicial civil forfeiture proceeding under a civil forfeiture statute may file a claim with the appropriate official after the seizure.
(B)
A claim under subparagraph (A) may be filed not later than the deadline set forth in a personal notice letter (which deadline may be not earlier than 35 days after the date the letter is mailed), except that if that letter is not received, then a claim may be filed not later than 30 days after the date of final publication of notice of seizure.
(C)
A claim shall -
(i)
identify the specific property being claimed;
(ii)
state the claimant's interest in such property; and
(iii)
be made under oath, subject to penalty of perjury.
(D)
A claim need not be made in any particular form. Each Federal agency conducting nonjudicial forfeitures under this section shall make claim forms generally available on request, which forms shall be written in easily understandable language.
(E)
Any person may make a claim under subparagraph (A) without posting bond with respect to the property which is the subject of the claim.
(3)
(A)
Not later than 90 days after a claim has been filed, the Government shall file a complaint for forfeiture in the manner set forth in the Supplemental Rules for Certain Admiralty and Maritime Claims or return the property pending the filing of a complaint, except that a court in the district in which the complaint will be filed may extend the period for filing a complaint for good cause shown or upon agreement of the parties.
(B)
If the Government does not -
(i)
file a complaint for forfeiture or return the property, in accordance with subparagraph (A); or
(ii)
before the time for filing a complaint has expired -
(I)
obtain a criminal indictment containing an allegation that the property is subject to forfeiture; and
(II)
take the steps necessary to preserve its right to maintain custody of the property as provided in the applicable criminal forfeiture statute, the Government shall promptly release the property pursuant to regulations promulgated by the Attorney General, and may not take any further action to effect the civil forfeiture of such property in connection with the underlying offense.
(C)
In lieu of, or in addition to, filing a civil forfeiture complaint, the Government may include a forfeiture allegation in a criminal indictment. If criminal forfeiture is the only forfeiture proceeding commenced by the Government, the Government's right to continued possession of the property shall be governed by the applicable criminal forfeiture statute.
(D)
No complaint may be dismissed on the ground that the Government did not have adequate evidence at the time the complaint was filed to establish the forfeitability of the property.
(4)
(A)
In any case in which the Government files in the appropriate United States district court a complaint for forfeiture of property, any person claiming an interest in the seized property may file a claim asserting such person's interest in the property in the manner set forth in the Supplemental Rules for Certain Admiralty and Maritime Claims, except that such claim may be filed not later than 30 days after the date of service of the Government's complaint or, as applicable, not later than 30 days after the date of final publication of notice of the filing of the complaint.
(B)
A person asserting an interest in seized property, in accordance with subparagraph (A), shall file an answer to the Government's complaint for forfeiture not later than 20 days after the date of the filing of the claim.
(b) Representation. -
(1)
(A)
If a person with standing to contest the forfeiture of property in a judicial civil forfeiture proceeding under a civil forfeiture statute is financially unable to obtain representation by counsel, and the person is represented by counsel appointed under section 3006A of this title in connection with a related criminal case, the court may authorize counsel to represent that person with respect to the claim.
(B)
In determining whether to authorize counsel to represent a person under subparagraph (A), the court shall take into account such factors as -
(i)
the person's standing to contest the forfeiture; and
(ii)
whether the claim appears to be made in good faith.
(2)
(A)
If a person with standing to contest the forfeiture of property in a judicial civil forfeiture proceeding under a civil forfeiture statute is financially unable to obtain representation by counsel, and the property subject to forfeiture is real property that is being used by the person as a primary residence, the court, at the request of the person, shall insure that the person is represented by an attorney for the Legal Services Corporation with respect to the claim.
(B)
(i)
At appropriate times during a representation under subparagraph (A), the Legal Services Corporation shall submit a statement of reasonable attorney fees and costs to the court.
(ii)
The court shall enter a judgment in favor of the Legal Services Corporation for reasonable attorney fees and costs submitted pursuant to clause (i) and treat such judgment as payable under section 2465 of title 28, United States Code, regardless of the outcome of the case.
(3)
The court shall set the compensation for representation under this subsection, which shall be equivalent to that provided for court-appointed representation under section 3006A of this title.
(c) Burden of Proof. -
In a suit or action brought under any civil forfeiture statute for the civil forfeiture of any property -
(1)
the burden of proof is on the Government to establish, by a preponderance of the evidence, that the property is subject to forfeiture;
(2)
the Government may use evidence gathered after the filing of a complaint for forfeiture to establish, by a preponderance of the evidence, that property is subject to forfeiture; and
(3)
if the Government's theory of forfeiture is that the property was used to commit or facilitate the commission of a criminal offense, or was involved in the commission of a criminal offense, the Government shall establish that there was a substantial connection between the property and the offense.
(d) Innocent Owner Defense. -
(1)
An innocent owner's interest in property shall not be forfeited under any civil forfeiture statute. The claimant shall have the burden of proving that the claimant is an innocent owner by a preponderance of the evidence.
(2)
(A)
With respect to a property interest in existence at the time the illegal conduct giving rise to forfeiture took place, the term ''innocent owner'' means an owner who -
(i)
did not know of the conduct giving rise to forfeiture; or
(ii)
upon learning of the conduct giving rise to the forfeiture, did all that reasonably could be expected under the circumstances to terminate such use of the property.
(B)
(i)
For the purposes of this paragraph, ways in which a person may show that such person did all that reasonably could be expected may include demonstrating that such person, to the extent permitted by law -
(I)
gave timely notice to an appropriate law enforcement agency of information that led the person to know the conduct giving rise to a forfeiture would occur or has occurred; and
(II)
in a timely fashion revoked or made a good faith attempt to revoke permission for those engaging in such conduct to use the property or took reasonable actions in consultation with a law enforcement agency to discourage or prevent the illegal use of the property.
(ii)
A person is not required by this subparagraph to take steps that the person reasonably believes would be likely to subject any person (other than the person whose conduct gave rise to the forfeiture) to physical danger.
(3)
(A)
With respect to a property interest acquired after the conduct giving rise to the forfeiture has taken place, the term ''innocent owner'' means a person who, at the time that person acquired the interest in the property -
(i)
was a bona fide purchaser or seller for value (including a purchaser or seller of goods or services for value); and
(ii)
did not know and was reasonably without cause to believe that the property was subject to forfeiture.
(B)
An otherwise valid claim under subparagraph (A) shall not be denied on the ground that the claimant gave nothing of value in exchange for the property if -
(i)
the property is the primary residence of the claimant;
(ii)
depriving the claimant of the property would deprive the claimant of the means to maintain reasonable shelter in the community for the claimant and all dependents residing with the claimant;
(iii)
the property is not, and is not traceable to, the proceeds of any criminal offense; and
(iv)
the claimant acquired his or her interest in the property through marriage, divorce, or legal separation, or the claimant was the spouse or legal dependent of a person whose death resulted in the transfer of the property to the claimant through inheritance or probate,
except that the court shall limit the value of any real property interest for which innocent ownership is recognized under this subparagraph to the value necessary to maintain reasonable shelter in the community for such claimant and all dependents residing with the claimant.
(4)
Notwithstanding any provision of this subsection, no person may assert an ownership interest under this subsection in contraband or other property that it is illegal to possess.
(5)
If the court determines, in accordance with this section, that an innocent owner has a partial interest in property otherwise subject to forfeiture, or a joint tenancy or tenancy by the entirety in such property, the court may enter an appropriate order -
(A)
severing the property;
(B)
transferring the property to the Government with a provision that the Government compensate the innocent owner to the extent of his or her ownership interest once a final order of forfeiture has been entered and the property has been reduced to liquid assets; or
(C)
permitting the innocent owner to retain the property subject to a lien in favor of the Government to the extent of the forfeitable interest in the property.
(6)
In this subsection, the term ''owner'' -
(A)
means a person with an ownership interest in the specific property sought to be forfeited, including a leasehold, lien, mortgage, recorded security interest, or valid assignment of an ownership interest; and
(B)
does not include -
(i)
a person with only a general unsecured interest in, or claim against, the property or estate of another;
(ii)
a bailee unless the bailor is identified and the bailee shows a colorable legitimate interest in the property seized; or
(iii)
a nominee who exercises no dominion or control over the property.
(e) Motion To Set Aside Forfeiture. -
(1)
Any person entitled to written notice in any nonjudicial civil forfeiture proceeding under a civil forfeiture statute who does not receive such notice may file a motion to set aside a declaration of forfeiture with respect to that person's interest in the property, which motion shall be granted if -
(A)
the Government knew, or reasonably should have known, of the moving party's interest and failed to take reasonable steps to provide such party with notice; and
(B)
the moving party did not know or have reason to know of the seizure within sufficient time to file a timely claim.
(2)
(A)
Notwithstanding the expiration of any applicable statute of limitations, if the court grants a motion under paragraph (1), the court shall set aside the declaration of forfeiture as to the interest of the moving party without prejudice to the right of the Government to commence a subsequent forfeiture proceeding as to the interest of the moving party.
(B)
Any proceeding described in subparagraph (A) shall be commenced -
(i)
if nonjudicial, within 60 days of the entry of the order granting the motion; or
(ii)
if judicial, within 6 months of the entry of the order granting the motion.
(3)
A motion under paragraph (1) may be filed not later than 5 years after the date of final publication of notice of seizure of the property.
(4)
If, at the time a motion made under paragraph (1) is granted, the forfeited property has been disposed of by the Government in accordance with law, the Government may institute proceedings against a substitute sum of money equal to the value of the moving party's interest in the property at the time the property was disposed of.
(5)
A motion filed under this subsection shall be the exclusive remedy for seeking to set aside a declaration of forfeiture under a civil forfeiture statute.
(f) Release Of Seized Property. -
(1)
A claimant under subsection (a) is entitled to immediate release of seized property if -
(A)
the claimant has a possessory interest in the property;
(B)
the claimant has sufficient ties to the community to provide assurance that the property will be available at the time of the trial;
(C)
the continued possession by the Government pending the final disposition of forfeiture proceedings will cause substantial hardship to the claimant, such as preventing the functioning of a business, preventing an individual from working, or leaving an individual homeless;
(D)
the claimant's likely hardship from the continued possession by the Government of the seized property outweighs the risk that the property will be destroyed, damaged, lost, concealed, or transferred if it is returned to the claimant during the pendency of the proceeding; and
(E)
none of the conditions set forth in paragraph (8) applies.
(2)
A claimant seeking release of property under this subsection must request possession of the property from the appropriate official, and the request must set forth the basis on which the requirements of paragraph (1) are met.
(3)
(A)
If not later than 15 days after the date of a request under paragraph (2) the property has not been released, the claimant may file a petition in the district court in which the complaint has been filed or, if no complaint has been filed, in the district court in which the seizure warrant was issued or in the district court for the district in which the property was seized.
(B)
The petition described in subparagraph (A) shall set forth -
(i)
the basis on which the requirements of paragraph (1) are met; and
(ii)
the steps the claimant has taken to secure release of the property from the appropriate official.
(4)
If the Government establishes that the claimant's claim is frivolous, the court shall deny the petition. In responding to a petition under this subsection on other grounds, the Government may in appropriate cases submit evidence ex parte in order to avoid disclosing any matter that may adversely affect an ongoing criminal investigation or pending criminal trial.
(5)
The court shall render a decision on a petition filed under paragraph (3) not later than 30 days after the date of the filing, unless such 30-day limitation is extended by consent of the parties or by the court for good cause shown.
(6)
If -
(A)
a petition is filed under paragraph (3); and
(B)
the claimant demonstrates that the requirements of paragraph (1) have been met,
the district court shall order that the property be returned to the claimant, pending completion of proceedings by the Government to obtain forfeiture of the property.
(7)
If the court grants a petition under paragraph (3) -
(A)
the court may enter any order necessary to ensure that the value of the property is maintained while the forfeiture action is pending, including -
(i)
permitting the inspection, photographing, and inventory of the property;
(ii)
fixing a bond in accordance with rule E(5) of the Supplemental Rules for Certain Admiralty and Maritime Claims; and
(iii)
requiring the claimant to obtain or maintain insurance on the subject property; and
(B)
the Government may place a lien against the property or file a lis pendens to ensure that the property is not transferred to another person.
(8)
This subsection shall not apply if the seized property -
(A)
is contraband, currency, or other monetary instrument, or electronic funds unless such currency or other monetary instrument or electronic funds constitutes the assets of a legitimate business which has been seized;
(B)
is to be used as evidence of a violation of the law;
(C)
by reason of design or other characteristic, is particularly suited for use in illegal activities; or
(D)
is likely to be used to commit additional criminal acts if returned to the claimant.
(g) Proportionality. -
(1)
The claimant under subsection (a)(4) may petition the court to determine whether the forfeiture was constitutionally excessive.
(2)
In making this determination, the court shall compare the forfeiture to the gravity of the offense giving rise to the forfeiture.
(3)
The claimant shall have the burden of establishing that the forfeiture is grossly disproportional by a preponderance of the evidence at a hearing conducted by the court without a jury.
(4)
If the court finds that the forfeiture is grossly disproportional to the offense it shall reduce or eliminate the forfeiture as necessary to avoid a violation of the Excessive Fines Clause of the Eighth Amendment of the Constitution.
(h) Civil Fine. -
(1)
In any civil forfeiture proceeding under a civil forfeiture statute in which the Government prevails, if the court finds that the claimant's assertion of an interest in the property was frivolous, the court may impose a civil fine on the claimant of an amount equal to 10 percent of the value of the forfeited property, but in no event shall the fine be less than $250 or greater than $5,000.
(2)
Any civil fine imposed under this subsection shall not preclude the court from imposing sanctions under rule 11 of the Federal Rules of Civil Procedure.
(3)
In addition to the limitations of section 1915 of title 28, United States Code, in no event shall a prisoner file a claim under a civil forfeiture statute or appeal a judgment in a civil action or proceeding based on a civil forfeiture statute if the prisoner has, on three or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous or malicious, unless the prisoner shows extraordinary and exceptional circumstances.
(i) Civil Forfeiture Statute Defined. -
In this section, the term ''civil forfeiture statute'' -
(1)
means any provision of Federal law providing for the forfeiture of property other than as a sentence imposed upon conviction of a criminal offense; and
(2)
does not include -
(A)
the Tariff Act of 1930 or any other provision of law codified in title 19;
(B)
the Internal Revenue Code of 1986;
(C)
the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq.);
(D)
the Trading with the Enemy Act (50 U.S.C. App. 1 et seq.) or the International Emergency Economic Powers Act (IEEPA) (50 U.S.C. 1701 et seq.); or
(E)
section 1 of title VI of the Act of June 15, 1917 (40 Stat. 233; 22 U.S.C. 401).
(j) Restraining Orders; Protective Orders. -
(1)
Upon application of the United States, the court may enter a restraining order or injunction, require the execution of satisfactory performance bonds, create receiverships, appoint conservators, custodians, appraisers, accountants, or trustees, or take any other action to seize, secure, maintain, or preserve the availability of property subject to civil forfeiture -
(A)
upon the filing of a civil forfeiture complaint alleging that the property with respect to which the order is sought is subject to civil forfeiture; or
(B)
prior to the filing of such a complaint, if, after notice to persons appearing to have an interest in the property and opportunity for a hearing, the court determines that -
(i)
there is a substantial probability that the United States will prevail on the issue of forfeiture and that failure to enter the order will result in the property being destroyed, removed from the jurisdiction of the court, or otherwise made unavailable for forfeiture; and
(ii)
the need to preserve the availability of the property through the entry of the requested order outweighs the hardship on any party against whom the order is to be entered.
(2)
An order entered pursuant to paragraph (1)(B) shall be effective for not more than 90 days, unless extended by the court for good cause shown, or unless a complaint described in paragraph (1)(A) has been filed.
(3)
A temporary restraining order under this subsection may be entered upon application of the United States without notice or opportunity for a hearing when a complaint has not yet been filed with respect to the property, if the United States demonstrates that there is probable cause to believe that the property with respect to which the order is sought is subject to civil forfeiture and that provision of notice will jeopardize the availability of the property for forfeiture. Such a temporary order shall expire not more than 10 days after the date on which it is entered, unless extended for good cause shown or unless the party against whom it is entered consents to an extension for a longer period. A hearing requested concerning an order entered under this paragraph shall be held at the earliest possible time and prior to the expiration of the temporary order.
(4)
The court may receive and consider, at a hearing held pursuant to this subsection, evidence and information that would be inadmissible under the Federal Rules of Evidence
Sec. 983. - General rules for civil forfeiture proceedings
(a) Notice; Claim; Complaint. -
(1)
(A)
(i)
Except as provided in clauses (ii) through (v), in any nonjudicial civil forfeiture proceeding under a civil forfeiture statute, with respect to which the Government is required to send written notice to interested parties, such notice shall be sent in a manner to achieve proper notice as soon as practicable, and in no case more than 60 days after the date of the seizure.
(ii)
No notice is required if, before the 60-day period expires, the Government files a civil judicial forfeiture action against the property and provides notice of that action as required by law.
(iii)
If, before the 60-day period expires, the Government does not file a civil judicial forfeiture action, but does obtain a criminal indictment containing an allegation that the property is subject to forfeiture, the Government shall either -
(I)
send notice within the 60 days and continue the nonjudicial civil forfeiture proceeding under this section; or
(II)
terminate the nonjudicial civil forfeiture proceeding, and take the steps necessary to preserve its right to maintain custody of the property as provided in the applicable criminal forfeiture statute.
(iv)
In a case in which the property is seized by a State or local law enforcement agency and turned over to a Federal law enforcement agency for the purpose of forfeiture under Federal law, notice shall be sent not more than 90 days after the date of seizure by the State or local law enforcement agency.
(v)
If the identity or interest of a party is not determined until after the seizure or turnover but is determined before a declaration of forfeiture is entered, notice shall be sent to such interested party not later than 60 days after the determination by the Government of the identity of the party or the party's interest.
(B)
A supervisory official in the headquarters office of the seizing agency may extend the period for sending notice under subparagraph (A) for a period not to exceed 30 days (which period may not be further extended except by a court), if the official determines that the conditions in subparagraph (D) are present.
(C)
Upon motion by the Government, a court may extend the period for sending notice under subparagraph (A) for a period not to exceed 60 days, which period may be further extended by the court for 60-day periods, as necessary, if the court determines, based on a written certification of a supervisory official in the headquarters office of the seizing agency, that the conditions in subparagraph (D) are present.
(D)
The period for sending notice under this paragraph may be extended only if there is reason to believe that notice may have an adverse result, including -
(i)
endangering the life or physical safety of an individual;
(ii)
flight from prosecution;
(iii)
destruction of or tampering with evidence;
(iv)
intimidation of potential witnesses; or
(v)
otherwise seriously jeopardizing an investigation or unduly delaying a trial.
(E)
Each of the Federal seizing agencies conducting nonjudicial forfeitures under this section shall report periodically to the Committees on the Judiciary of the House of Representatives and the Senate the number of occasions when an extension of time is granted under subparagraph (B).
(F)
If the Government does not send notice of a seizure of property in accordance with subparagraph (A) to the person from whom the property was seized, and no extension of time is granted, the Government shall return the property to that person without prejudice to the right of the Government to commence a forfeiture proceeding at a later time. The Government shall not be required to return contraband or other property that the person from whom the property was seized may not legally possess.
(2)
(A)
Any person claiming property seized in a nonjudicial civil forfeiture proceeding under a civil forfeiture statute may file a claim with the appropriate official after the seizure.
(B)
A claim under subparagraph (A) may be filed not later than the deadline set forth in a personal notice letter (which deadline may be not earlier than 35 days after the date the letter is mailed), except that if that letter is not received, then a claim may be filed not later than 30 days after the date of final publication of notice of seizure.
(C)
A claim shall -
(i)
identify the specific property being claimed;
(ii)
state the claimant's interest in such property; and
(iii)
be made under oath, subject to penalty of perjury.
(D)
A claim need not be made in any particular form. Each Federal agency conducting nonjudicial forfeitures under this section shall make claim forms generally available on request, which forms shall be written in easily understandable language.
(E)
Any person may make a claim under subparagraph (A) without posting bond with respect to the property which is the subject of the claim.
(3)
(A)
Not later than 90 days after a claim has been filed, the Government shall file a complaint for forfeiture in the manner set forth in the Supplemental Rules for Certain Admiralty and Maritime Claims or return the property pending the filing of a complaint, except that a court in the district in which the complaint will be filed may extend the period for filing a complaint for good cause shown or upon agreement of the parties.
(B)
If the Government does not -
(i)
file a complaint for forfeiture or return the property, in accordance with subparagraph (A); or
(ii)
before the time for filing a complaint has expired -
(I)
obtain a criminal indictment containing an allegation that the property is subject to forfeiture; and
(II)
take the steps necessary to preserve its right to maintain custody of the property as provided in the applicable criminal forfeiture statute, the Government shall promptly release the property pursuant to regulations promulgated by the Attorney General, and may not take any further action to effect the civil forfeiture of such property in connection with the underlying offense.
(C)
In lieu of, or in addition to, filing a civil forfeiture complaint, the Government may include a forfeiture allegation in a criminal indictment. If criminal forfeiture is the only forfeiture proceeding commenced by the Government, the Government's right to continued possession of the property shall be governed by the applicable criminal forfeiture statute.
(D)
No complaint may be dismissed on the ground that the Government did not have adequate evidence at the time the complaint was filed to establish the forfeitability of the property.
(4)
(A)
In any case in which the Government files in the appropriate United States district court a complaint for forfeiture of property, any person claiming an interest in the seized property may file a claim asserting such person's interest in the property in the manner set forth in the Supplemental Rules for Certain Admiralty and Maritime Claims, except that such claim may be filed not later than 30 days after the date of service of the Government's complaint or, as applicable, not later than 30 days after the date of final publication of notice of the filing of the complaint.
(B)
A person asserting an interest in seized property, in accordance with subparagraph (A), shall file an answer to the Government's complaint for forfeiture not later than 20 days after the date of the filing of the claim.
(b) Representation. -
(1)
(A)
If a person with standing to contest the forfeiture of property in a judicial civil forfeiture proceeding under a civil forfeiture statute is financially unable to obtain representation by counsel, and the person is represented by counsel appointed under section 3006A of this title in connection with a related criminal case, the court may authorize counsel to represent that person with respect to the claim.
(B)
In determining whether to authorize counsel to represent a person under subparagraph (A), the court shall take into account such factors as -
(i)
the person's standing to contest the forfeiture; and
(ii)
whether the claim appears to be made in good faith.
(2)
(A)
If a person with standing to contest the forfeiture of property in a judicial civil forfeiture proceeding under a civil forfeiture statute is financially unable to obtain representation by counsel, and the property subject to forfeiture is real property that is being used by the person as a primary residence, the court, at the request of the person, shall insure that the person is represented by an attorney for the Legal Services Corporation with respect to the claim.
(B)
(i)
At appropriate times during a representation under subparagraph (A), the Legal Services Corporation shall submit a statement of reasonable attorney fees and costs to the court.
(ii)
The court shall enter a judgment in favor of the Legal Services Corporation for reasonable attorney fees and costs submitted pursuant to clause (i) and treat such judgment as payable under section 2465 of title 28, United States Code, regardless of the outcome of the case.
(3)
The court shall set the compensation for representation under this subsection, which shall be equivalent to that provided for court-appointed representation under section 3006A of this title.
(c) Burden of Proof. -
In a suit or action brought under any civil forfeiture statute for the civil forfeiture of any property -
(1)
the burden of proof is on the Government to establish, by a preponderance of the evidence, that the property is subject to forfeiture;
(2)
the Government may use evidence gathered after the filing of a complaint for forfeiture to establish, by a preponderance of the evidence, that property is subject to forfeiture; and
(3)
if the Government's theory of forfeiture is that the property was used to commit or facilitate the commission of a criminal offense, or was involved in the commission of a criminal offense, the Government shall establish that there was a substantial connection between the property and the offense.
(d) Innocent Owner Defense. -
(1)
An innocent owner's interest in property shall not be forfeited under any civil forfeiture statute. The claimant shall have the burden of proving that the claimant is an innocent owner by a preponderance of the evidence.
(2)
(A)
With respect to a property interest in existence at the time the illegal conduct giving rise to forfeiture took place, the term ''innocent owner'' means an owner who -
(i)
did not know of the conduct giving rise to forfeiture; or
(ii)
upon learning of the conduct giving rise to the forfeiture, did all that reasonably could be expected under the circumstances to terminate such use of the property.
(B)
(i)
For the purposes of this paragraph, ways in which a person may show that such person did all that reasonably could be expected may include demonstrating that such person, to the extent permitted by law -
(I)
gave timely notice to an appropriate law enforcement agency of information that led the person to know the conduct giving rise to a forfeiture would occur or has occurred; and
(II)
in a timely fashion revoked or made a good faith attempt to revoke permission for those engaging in such conduct to use the property or took reasonable actions in consultation with a law enforcement agency to discourage or prevent the illegal use of the property.
(ii)
A person is not required by this subparagraph to take steps that the person reasonably believes would be likely to subject any person (other than the person whose conduct gave rise to the forfeiture) to physical danger.
(3)
(A)
With respect to a property interest acquired after the conduct giving rise to the forfeiture has taken place, the term ''innocent owner'' means a person who, at the time that person acquired the interest in the property -
(i)
was a bona fide purchaser or seller for value (including a purchaser or seller of goods or services for value); and
(ii)
did not know and was reasonably without cause to believe that the property was subject to forfeiture.
(B)
An otherwise valid claim under subparagraph (A) shall not be denied on the ground that the claimant gave nothing of value in exchange for the property if -
(i)
the property is the primary residence of the claimant;
(ii)
depriving the claimant of the property would deprive the claimant of the means to maintain reasonable shelter in the community for the claimant and all dependents residing with the claimant;
(iii)
the property is not, and is not traceable to, the proceeds of any criminal offense; and
(iv)
the claimant acquired his or her interest in the property through marriage, divorce, or legal separation, or the claimant was the spouse or legal dependent of a person whose death resulted in the transfer of the property to the claimant through inheritance or probate,
except that the court shall limit the value of any real property interest for which innocent ownership is recognized under this subparagraph to the value necessary to maintain reasonable shelter in the community for such claimant and all dependents residing with the claimant.
(4)
Notwithstanding any provision of this subsection, no person may assert an ownership interest under this subsection in contraband or other property that it is illegal to possess.
(5)
If the court determines, in accordance with this section, that an innocent owner has a partial interest in property otherwise subject to forfeiture, or a joint tenancy or tenancy by the entirety in such property, the court may enter an appropriate order -
(A)
severing the property;
(B)
transferring the property to the Government with a provision that the Government compensate the innocent owner to the extent of his or her ownership interest once a final order of forfeiture has been entered and the property has been reduced to liquid assets; or
(C)
permitting the innocent owner to retain the property subject to a lien in favor of the Government to the extent of the forfeitable interest in the property.
(6)
In this subsection, the term ''owner'' -
(A)
means a person with an ownership interest in the specific property sought to be forfeited, including a leasehold, lien, mortgage, recorded security interest, or valid assignment of an ownership interest; and
(B)
does not include -
(i)
a person with only a general unsecured interest in, or claim against, the property or estate of another;
(ii)
a bailee unless the bailor is identified and the bailee shows a colorable legitimate interest in the property seized; or
(iii)
a nominee who exercises no dominion or control over the property.
(e) Motion To Set Aside Forfeiture. -
(1)
Any person entitled to written notice in any nonjudicial civil forfeiture proceeding under a civil forfeiture statute who does not receive such notice may file a motion to set aside a declaration of forfeiture with respect to that person's interest in the property, which motion shall be granted if -
(A)
the Government knew, or reasonably should have known, of the moving party's interest and failed to take reasonable steps to provide such party with notice; and
(B)
the moving party did not know or have reason to know of the seizure within sufficient time to file a timely claim.
(2)
(A)
Notwithstanding the expiration of any applicable statute of limitations, if the court grants a motion under paragraph (1), the court shall set aside the declaration of forfeiture as to the interest of the moving party without prejudice to the right of the Government to commence a subsequent forfeiture proceeding as to the interest of the moving party.
(B)
Any proceeding described in subparagraph (A) shall be commenced -
(i)
if nonjudicial, within 60 days of the entry of the order granting the motion; or
(ii)
if judicial, within 6 months of the entry of the order granting the motion.
(3)
A motion under paragraph (1) may be filed not later than 5 years after the date of final publication of notice of seizure of the property.
(4)
If, at the time a motion made under paragraph (1) is granted, the forfeited property has been disposed of by the Government in accordance with law, the Government may institute proceedings against a substitute sum of money equal to the value of the moving party's interest in the property at the time the property was disposed of.
(5)
A motion filed under this subsection shall be the exclusive remedy for seeking to set aside a declaration of forfeiture under a civil forfeiture statute.
(f) Release Of Seized Property. -
(1)
A claimant under subsection (a) is entitled to immediate release of seized property if -
(A)
the claimant has a possessory interest in the property;
(B)
the claimant has sufficient ties to the community to provide assurance that the property will be available at the time of the trial;
(C)
the continued possession by the Government pending the final disposition of forfeiture proceedings will cause substantial hardship to the claimant, such as preventing the functioning of a business, preventing an individual from working, or leaving an individual homeless;
(D)
the claimant's likely hardship from the continued possession by the Government of the seized property outweighs the risk that the property will be destroyed, damaged, lost, concealed, or transferred if it is returned to the claimant during the pendency of the proceeding; and
(E)
none of the conditions set forth in paragraph (8) applies.
(2)
A claimant seeking release of property under this subsection must request possession of the property from the appropriate official, and the request must set forth the basis on which the requirements of paragraph (1) are met.
(3)
(A)
If not later than 15 days after the date of a request under paragraph (2) the property has not been released, the claimant may file a petition in the district court in which the complaint has been filed or, if no complaint has been filed, in the district court in which the seizure warrant was issued or in the district court for the district in which the property was seized.
(B)
The petition described in subparagraph (A) shall set forth -
(i)
the basis on which the requirements of paragraph (1) are met; and
(ii)
the steps the claimant has taken to secure release of the property from the appropriate official.
(4)
If the Government establishes that the claimant's claim is frivolous, the court shall deny the petition. In responding to a petition under this subsection on other grounds, the Government may in appropriate cases submit evidence ex parte in order to avoid disclosing any matter that may adversely affect an ongoing criminal investigation or pending criminal trial.
(5)
The court shall render a decision on a petition filed under paragraph (3) not later than 30 days after the date of the filing, unless such 30-day limitation is extended by consent of the parties or by the court for good cause shown.
(6)
If -
(A)
a petition is filed under paragraph (3); and
(B)
the claimant demonstrates that the requirements of paragraph (1) have been met,
the district court shall order that the property be returned to the claimant, pending completion of proceedings by the Government to obtain forfeiture of the property.
(7)
If the court grants a petition under paragraph (3) -
(A)
the court may enter any order necessary to ensure that the value of the property is maintained while the forfeiture action is pending, including -
(i)
permitting the inspection, photographing, and inventory of the property;
(ii)
fixing a bond in accordance with rule E(5) of the Supplemental Rules for Certain Admiralty and Maritime Claims; and
(iii)
requiring the claimant to obtain or maintain insurance on the subject property; and
(B)
the Government may place a lien against the property or file a lis pendens to ensure that the property is not transferred to another person.
(8)
This subsection shall not apply if the seized property -
(A)
is contraband, currency, or other monetary instrument, or electronic funds unless such currency or other monetary instrument or electronic funds constitutes the assets of a legitimate business which has been seized;
(B)
is to be used as evidence of a violation of the law;
(C)
by reason of design or other characteristic, is particularly suited for use in illegal activities; or
(D)
is likely to be used to commit additional criminal acts if returned to the claimant.
(g) Proportionality. -
(1)
The claimant under subsection (a)(4) may petition the court to determine whether the forfeiture was constitutionally excessive.
(2)
In making this determination, the court shall compare the forfeiture to the gravity of the offense giving rise to the forfeiture.
(3)
The claimant shall have the burden of establishing that the forfeiture is grossly disproportional by a preponderance of the evidence at a hearing conducted by the court without a jury.
(4)
If the court finds that the forfeiture is grossly disproportional to the offense it shall reduce or eliminate the forfeiture as necessary to avoid a violation of the Excessive Fines Clause of the Eighth Amendment of the Constitution.
(h) Civil Fine. -
(1)
In any civil forfeiture proceeding under a civil forfeiture statute in which the Government prevails, if the court finds that the claimant's assertion of an interest in the property was frivolous, the court may impose a civil fine on the claimant of an amount equal to 10 percent of the value of the forfeited property, but in no event shall the fine be less than $250 or greater than $5,000.
(2)
Any civil fine imposed under this subsection shall not preclude the court from imposing sanctions under rule 11 of the Federal Rules of Civil Procedure.
(3)
In addition to the limitations of section 1915 of title 28, United States Code, in no event shall a prisoner file a claim under a civil forfeiture statute or appeal a judgment in a civil action or proceeding based on a civil forfeiture statute if the prisoner has, on three or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous or malicious, unless the prisoner shows extraordinary and exceptional circumstances.
(i) Civil Forfeiture Statute Defined. -
In this section, the term ''civil forfeiture statute'' -
(1)
means any provision of Federal law providing for the forfeiture of property other than as a sentence imposed upon conviction of a criminal offense; and
(2)
does not include -
(A)
the Tariff Act of 1930 or any other provision of law codified in title 19;
(B)
the Internal Revenue Code of 1986;
(C)
the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq.);
(D)
the Trading with the Enemy Act (50 U.S.C. App. 1 et seq.) or the International Emergency Economic Powers Act (IEEPA) (50 U.S.C. 1701 et seq.); or
(E)
section 1 of title VI of the Act of June 15, 1917 (40 Stat. 233; 22 U.S.C. 401).
(j) Restraining Orders; Protective Orders. -
(1)
Upon application of the United States, the court may enter a restraining order or injunction, require the execution of satisfactory performance bonds, create receiverships, appoint conservators, custodians, appraisers, accountants, or trustees, or take any other action to seize, secure, maintain, or preserve the availability of property subject to civil forfeiture -
(A)
upon the filing of a civil forfeiture complaint alleging that the property with respect to which the order is sought is subject to civil forfeiture; or
(B)
prior to the filing of such a complaint, if, after notice to persons appearing to have an interest in the property and opportunity for a hearing, the court determines that -
(i)
there is a substantial probability that the United States will prevail on the issue of forfeiture and that failure to enter the order will result in the property being destroyed, removed from the jurisdiction of the court, or otherwise made unavailable for forfeiture; and
(ii)
the need to preserve the availability of the property through the entry of the requested order outweighs the hardship on any party against whom the order is to be entered.
(2)
An order entered pursuant to paragraph (1)(B) shall be effective for not more than 90 days, unless extended by the court for good cause shown, or unless a complaint described in paragraph (1)(A) has been filed.
(3)
A temporary restraining order under this subsection may be entered upon application of the United States without notice or opportunity for a hearing when a complaint has not yet been filed with respect to the property, if the United States demonstrates that there is probable cause to believe that the property with respect to which the order is sought is subject to civil forfeiture and that provision of notice will jeopardize the availability of the property for forfeiture. Such a temporary order shall expire not more than 10 days after the date on which it is entered, unless extended for good cause shown or unless the party against whom it is entered consents to an extension for a longer period. A hearing requested concerning an order entered under this paragraph shall be held at the earliest possible time and prior to the expiration of the temporary order.
(4)
The court may receive and consider, at a hearing held pursuant to this subsection, evidence and information that would be inadmissible under the Federal Rules of Evidence
Monday, May 10, 2004
Sunday, May 09, 2004
Thursday, May 06, 2004
JOSE LOUIS NAVARRO, Plaintiff - Appellant, v. CITY OF SOUTH GATE, a Municipal Corporation; GEORGE TROXCIL, individually; GEORGE TROXCIL, in his official capacity as Chief of Police; ALBERT CARRILLO; A. LOPEZ, Defendants - Appellees.
No. 02-55395
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
81 Fed. Appx. 192; 2003 U.S. App. LEXIS 23421
June 4, 2003, Argued and Submitted, Pasadena, California
November 14, 2003, Filed
I. Fourth Amendment
The officers' failure to further investigate the possibility of self-defense -- indeed, their failure even to acknowledge the evidence in support of such a claim -- might not be fatal to their claim of qualified immunity if self-defense were merely an affirmative defense on which Navarro had the burden of proof. See Broam v. Bogan, 320 F.3d 1023, 1032 (9th Cir. 2003) [**8] ("[A] law enforcement officer is not required by the Constitution to investigate independently every claim of innocence, whether the claim is based on mistaken identity or a defense such as lack of requisite intent." (internal quotation marks omitted)). In this case, however, Navarro was arrested for a crime that is statutorily defined so that negation of self-defense is an element of the offense on which the prosecution bears the burden of proof. Cal. Penal Code § 246.3 (West 2003); People v. Alonzo, 13 Cal. App. 4th 535, 538, 16 Cal. Rptr. 2d 656 (1993); California Jury Instructions, Criminal Instruction 9.03.3 (7th ed. 2003). By failing to investigate material exculpatory evidence that negated an element of the offense, the officers did not consider the totality of the circumstances, and therefore they did not act reasonably in concluding that probable cause existed to arrest Navarro. n3 See Broam, 320 F.3d at 1032 ("An officer is not entitled to a qualified immunity defense ... where exculpatory evidence is ignored that would negate a finding of probable cause.").
A lack of evidence on a particular element, however, is quite a different matter from the presence of evidence that affirmatively suggests that an element cannot be met. Defendants have cited no authority for the proposition that officers may ignore exculpatory evidence on an element of the offense in making probable cause determinations.
Given the clearly established nature of both the law defining the offense at issue and the requirement that officers consider the totality of the circumstances (exculpatory as well as inculpatory), as well as the presence of strong evidence indicating that Navarro acted in self-defense, a reasonable officer would not have sought to arrest Navarro without first considering whether the discharge of the firearm was privileged. This is particularly the case in light of the fact that the officers' investigation took nearly two weeks to finish and did not present the difficulty of drawing fine legal distinctions under exigent circumstances. [*196] Cf. Graves v. City of Coeur D'Alene, 339 F.3d 828, 846-47 (9th Cir. 2003).
II. Eighth Amendment
Navarro next contends the district court erred in granting summary judgment on his two Eighth Amendment claims.
First, Navarro contends the officers submitted an inaccurate criminal history print-out, which resulted in a $ 55,000 increase in bail. We agree [**10] that a material dispute of fact would exist if Navarro had presented evidence that the inaccurate criminal history report was before the court when the court set bail. However, we find no such evidence in the record.
Navarro points only to a certified copy of the clerk's docket from Los Angeles Municipal Court. The docket notes that during the bail hearing, "[a] copy of the complaint and the arrest report [was] given to defendant's counsel." Even presuming the court also had the complaint and arrest report before it, there is no evidence that the inaccurate criminal history was attached to either of these two documents. As the district court noted, Navarro has not submitted certified copies of either the arrest report or the complaint from which we could determine their contents. Thus, Navarro has not put forth evidence sufficient to create a triable issue of fact.
In sum, we reverse the summary judgment on Navarro's [**14] Fourth Amendment claim and remand for further proceedings. However, we affirm the grant of summary judgment on his Eighth and First Amendment claims.
Each party shall bear its own costs on appeal.
AFFIRMED in part; REVERSED in part and REMANDED.
No. 02-55395
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
81 Fed. Appx. 192; 2003 U.S. App. LEXIS 23421
June 4, 2003, Argued and Submitted, Pasadena, California
November 14, 2003, Filed
I. Fourth Amendment
The officers' failure to further investigate the possibility of self-defense -- indeed, their failure even to acknowledge the evidence in support of such a claim -- might not be fatal to their claim of qualified immunity if self-defense were merely an affirmative defense on which Navarro had the burden of proof. See Broam v. Bogan, 320 F.3d 1023, 1032 (9th Cir. 2003) [**8] ("[A] law enforcement officer is not required by the Constitution to investigate independently every claim of innocence, whether the claim is based on mistaken identity or a defense such as lack of requisite intent." (internal quotation marks omitted)). In this case, however, Navarro was arrested for a crime that is statutorily defined so that negation of self-defense is an element of the offense on which the prosecution bears the burden of proof. Cal. Penal Code § 246.3 (West 2003); People v. Alonzo, 13 Cal. App. 4th 535, 538, 16 Cal. Rptr. 2d 656 (1993); California Jury Instructions, Criminal Instruction 9.03.3 (7th ed. 2003). By failing to investigate material exculpatory evidence that negated an element of the offense, the officers did not consider the totality of the circumstances, and therefore they did not act reasonably in concluding that probable cause existed to arrest Navarro. n3 See Broam, 320 F.3d at 1032 ("An officer is not entitled to a qualified immunity defense ... where exculpatory evidence is ignored that would negate a finding of probable cause.").
A lack of evidence on a particular element, however, is quite a different matter from the presence of evidence that affirmatively suggests that an element cannot be met. Defendants have cited no authority for the proposition that officers may ignore exculpatory evidence on an element of the offense in making probable cause determinations.
Given the clearly established nature of both the law defining the offense at issue and the requirement that officers consider the totality of the circumstances (exculpatory as well as inculpatory), as well as the presence of strong evidence indicating that Navarro acted in self-defense, a reasonable officer would not have sought to arrest Navarro without first considering whether the discharge of the firearm was privileged. This is particularly the case in light of the fact that the officers' investigation took nearly two weeks to finish and did not present the difficulty of drawing fine legal distinctions under exigent circumstances. [*196] Cf. Graves v. City of Coeur D'Alene, 339 F.3d 828, 846-47 (9th Cir. 2003).
II. Eighth Amendment
Navarro next contends the district court erred in granting summary judgment on his two Eighth Amendment claims.
First, Navarro contends the officers submitted an inaccurate criminal history print-out, which resulted in a $ 55,000 increase in bail. We agree [**10] that a material dispute of fact would exist if Navarro had presented evidence that the inaccurate criminal history report was before the court when the court set bail. However, we find no such evidence in the record.
Navarro points only to a certified copy of the clerk's docket from Los Angeles Municipal Court. The docket notes that during the bail hearing, "[a] copy of the complaint and the arrest report [was] given to defendant's counsel." Even presuming the court also had the complaint and arrest report before it, there is no evidence that the inaccurate criminal history was attached to either of these two documents. As the district court noted, Navarro has not submitted certified copies of either the arrest report or the complaint from which we could determine their contents. Thus, Navarro has not put forth evidence sufficient to create a triable issue of fact.
In sum, we reverse the summary judgment on Navarro's [**14] Fourth Amendment claim and remand for further proceedings. However, we affirm the grant of summary judgment on his Eighth and First Amendment claims.
Each party shall bear its own costs on appeal.
AFFIRMED in part; REVERSED in part and REMANDED.
Tuesday, May 04, 2004
Justice-Denied.net
Without Bivens Actions, the right to hold Federal employees personally liable for malicious, vicious and even depraved actions is severely limited under the Civil
Rights Act of 1964 and subsequent revisions. For example, a Federal, former Federal employee or non Federal employee treated with grievous and malicious indifference, would have no recourse to file suit against the parties involved in US Federal Court. A Federal Employee would only have recourse to filing against the "Department Head," such as the Attorney General. Thus, people responsible for acts of brutality and sadism in violation of the United States Constitution, would be protected by the Federal Government. This allows for a continuation of these actions against others.
Justice-Denied.net
A Bivens claim can be based on conspiracy of federal agents by showing:
(1) the existence of an express or implied agreement among the defendants to deprive someone of constitutional rights, and
(2) an actual deprivation of those constitutional rights resulting from the agreement.
Without Bivens Actions, the right to hold Federal employees personally liable for malicious, vicious and even depraved actions is severely limited under the Civil
Rights Act of 1964 and subsequent revisions. For example, a Federal, former Federal employee or non Federal employee treated with grievous and malicious indifference, would have no recourse to file suit against the parties involved in US Federal Court. A Federal Employee would only have recourse to filing against the "Department Head," such as the Attorney General. Thus, people responsible for acts of brutality and sadism in violation of the United States Constitution, would be protected by the Federal Government. This allows for a continuation of these actions against others.
Justice-Denied.net
A Bivens claim can be based on conspiracy of federal agents by showing:
(1) the existence of an express or implied agreement among the defendants to deprive someone of constitutional rights, and
(2) an actual deprivation of those constitutional rights resulting from the agreement.
2003 U.S. App. LEXIS 10856,*;330 F.3d 1186;
2003 Cal. Daily Op. Service 4562;2003 Daily Journal DAR 5874
JOSE AGUADO CERVANTES, Plaintiff-Appellant, v. UNITED STATES OF AMERICA, Defendant-Appellee.
No. 01-56929
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
330 F.3d 1186;2003 U.S. App. LEXIS 10856;2003 Cal. Daily Op. Service 4562;2003 Daily Journal DAR 5874
June 2, 2003, Filed
Although rare, on occasion, we see arguments that simply fail the straight-face test. The United States' assertion that the "detention of goods" exception to the sovereign immunity waiver under the Federal Tort Claims Act applies to its negligent failure to remove 119 pounds of marijuana hidden in a car it sold to Jose Aguado Cervantes, whom it later incarcerated for "transporting" those very drugs, is one. Although we agree with the district court that Cervantes cannot recover damages for false imprisonment or false arrest because the customs agents had reasonable cause [*2] to believe his arrest was lawful, the United States' defense to his negligence claim is patently without merit. We therefore affirm the district court's order dismissing Cervantes's false imprisonment and false arrest claims, and reinstate Cervantes's negligence claim.
C. Negligence
Cervantes's claim for negligence is an entirely different matter. We are compelled to note that the United States' assertion, as its sole defense, that this claim is barred by the "detention of goods" exception is so off-the-mark as to be embarrassing. n1
2003 Cal. Daily Op. Service 4562;2003 Daily Journal DAR 5874
JOSE AGUADO CERVANTES, Plaintiff-Appellant, v. UNITED STATES OF AMERICA, Defendant-Appellee.
No. 01-56929
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
330 F.3d 1186;2003 U.S. App. LEXIS 10856;2003 Cal. Daily Op. Service 4562;2003 Daily Journal DAR 5874
June 2, 2003, Filed
Although rare, on occasion, we see arguments that simply fail the straight-face test. The United States' assertion that the "detention of goods" exception to the sovereign immunity waiver under the Federal Tort Claims Act applies to its negligent failure to remove 119 pounds of marijuana hidden in a car it sold to Jose Aguado Cervantes, whom it later incarcerated for "transporting" those very drugs, is one. Although we agree with the district court that Cervantes cannot recover damages for false imprisonment or false arrest because the customs agents had reasonable cause [*2] to believe his arrest was lawful, the United States' defense to his negligence claim is patently without merit. We therefore affirm the district court's order dismissing Cervantes's false imprisonment and false arrest claims, and reinstate Cervantes's negligence claim.
C. Negligence
Cervantes's claim for negligence is an entirely different matter. We are compelled to note that the United States' assertion, as its sole defense, that this claim is barred by the "detention of goods" exception is so off-the-mark as to be embarrassing. n1
28 USCS § 1346 (2004)
§ 1346. United States as defendant
(a) The district courts shall have original jurisdiction, concurrent with the United States Claims Court [United States Court of Federal Claims], of:
(1) Any civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws;
(2) Any other civil action or claim against the United States, not exceeding $ 10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort, except that the district courts shall not have jurisdiction of any civil action or claim against the United States founded upon any express or implied contract with the United States or for liquidated or unliquidated damages in cases not sounding in tort which are subject to sections 8(g)(1) and 10(a)(1) of the Contract Disputes Act of 1978 [41 USCS §§ 607(g)(1), 609(a)(1)]. For the purpose of this paragraph, an express or implied contract with the Army and Air Force Exchange Service, Navy Exchanges, Marine Corps Exchanges, Coast Guard Exchanges, or Exchange Councils of the National Aeronautics and Space Administration shall be considered an express or implied contract with the United States.
(b) (1) Subject to the provisions of chapter 171 of this title [28 USCS §§ 2671 et seq.], the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
(2) No person convicted of a felony who is incarcerated while awaiting sentencing or while serving a sentence may bring a civil action against the United States or an agency, officer, or employee of the Government, for mental or emotional injury suffered while in custody without a prior showing of physical injury.
§ 1346. United States as defendant
(a) The district courts shall have original jurisdiction, concurrent with the United States Claims Court [United States Court of Federal Claims], of:
(1) Any civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws;
(2) Any other civil action or claim against the United States, not exceeding $ 10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort, except that the district courts shall not have jurisdiction of any civil action or claim against the United States founded upon any express or implied contract with the United States or for liquidated or unliquidated damages in cases not sounding in tort which are subject to sections 8(g)(1) and 10(a)(1) of the Contract Disputes Act of 1978 [41 USCS §§ 607(g)(1), 609(a)(1)]. For the purpose of this paragraph, an express or implied contract with the Army and Air Force Exchange Service, Navy Exchanges, Marine Corps Exchanges, Coast Guard Exchanges, or Exchange Councils of the National Aeronautics and Space Administration shall be considered an express or implied contract with the United States.
(b) (1) Subject to the provisions of chapter 171 of this title [28 USCS §§ 2671 et seq.], the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
(2) No person convicted of a felony who is incarcerated while awaiting sentencing or while serving a sentence may bring a civil action against the United States or an agency, officer, or employee of the Government, for mental or emotional injury suffered while in custody without a prior showing of physical injury.
Extrinsic fraud on a court is, by definition, not an error by that court. It is, rather, a wrongful act committed by the party or parties who engaged in the fraud. Rooker-Feldman therefore does not bar subject matter jurisdiction when a federal plaintiff alleges a cause of action for extrinsic fraud on a state court and seeks to set aside a state court judgment obtained by that fraud.
B. Other [*15] Alleged Wrongful Acts
Kougasian's remaining four causes of action are based on other alleged wrongful acts by the defendants. All of these causes of action were previously adjudicated by the state courts in Kougasian I and/or II. Because Kougasian is attempting to have the judgments of these two courts set aside based on the alleged extrinsic fraud by defendants, however, these four causes of action are not barred by Rooker-Feldman.
However, even if Kougasian were not seeking to set aside the judgments because of extrinsic fraud (or even if the federal court concludes that there was no extrinsic fraud), Rooker-Feldman still does not bar these four causes of action. Kougasian does not, in these causes of action, allege legal errors by the state courts; rather, she alleges wrongful acts by the defendants, such as negligently designing the ski run and negligently placing or failing to remove the rock. It is true that factual allegations and legal claims in these four causes of action are almost identical to the allegations and claims asserted in state court in Kougasian I and II, but that is not sufficient reason to find the causes of action barred by Rooker-Feldman [*16] .
If issues presented in a federal suit are "inextricably intertwined" with issues presented in a forbidden de facto appeal from a state court decision, Rooker-Feldman dictates that those intertwined issues may not be litigated. See Feldman, 460 U.S. at 483 n.16. But the issues in Kougasian's four causes of action are not "inextricably intertwined" within the meaning of Rooker-Feldman. In an ordinary language sense, the issues in Kougasian's claims are indeed "inextricably intertwined" with the issues in Kougasian I and II. But, as we explained in Noel v. Hall, "inextricably intertwined" has a narrow and specialized meaning in the Rooker-Feldman doctrine. See Noel, 341 F.3d at 1166.
B. Other [*15] Alleged Wrongful Acts
Kougasian's remaining four causes of action are based on other alleged wrongful acts by the defendants. All of these causes of action were previously adjudicated by the state courts in Kougasian I and/or II. Because Kougasian is attempting to have the judgments of these two courts set aside based on the alleged extrinsic fraud by defendants, however, these four causes of action are not barred by Rooker-Feldman.
However, even if Kougasian were not seeking to set aside the judgments because of extrinsic fraud (or even if the federal court concludes that there was no extrinsic fraud), Rooker-Feldman still does not bar these four causes of action. Kougasian does not, in these causes of action, allege legal errors by the state courts; rather, she alleges wrongful acts by the defendants, such as negligently designing the ski run and negligently placing or failing to remove the rock. It is true that factual allegations and legal claims in these four causes of action are almost identical to the allegations and claims asserted in state court in Kougasian I and II, but that is not sufficient reason to find the causes of action barred by Rooker-Feldman [*16] .
If issues presented in a federal suit are "inextricably intertwined" with issues presented in a forbidden de facto appeal from a state court decision, Rooker-Feldman dictates that those intertwined issues may not be litigated. See Feldman, 460 U.S. at 483 n.16. But the issues in Kougasian's four causes of action are not "inextricably intertwined" within the meaning of Rooker-Feldman. In an ordinary language sense, the issues in Kougasian's claims are indeed "inextricably intertwined" with the issues in Kougasian I and II. But, as we explained in Noel v. Hall, "inextricably intertwined" has a narrow and specialized meaning in the Rooker-Feldman doctrine. See Noel, 341 F.3d at 1166.
It has long been the law that a plaintiff in federal court can seek to set aside a state court judgment obtained through extrinsic fraud. In Barrow v. Hunton, 99 U.S. (9 Otto) 80, 99 U.S. 80, 25 L. Ed. 407 (1878), the Supreme Court distinguished between errors by the state court, which could not be reviewed in federal circuit court, and fraud on the state court, which could be the basis for an independent suit in circuit court. (The federal circuit court was [*13] a trial court at that time.) Anticipating the Rooker-Feldman doctrine, the Court wrote:
Lexis-Nexis
Lexis-Nexis
A. Alleged Extrinsic Fraud
Three of Kougasian's causes of action are based, in whole or in part, on alleged extrinsic fraud on the state court. n1 The alleged extrinsic fraud primarily consisted of submitting the false declaration to the state court in Kougasian I at the last minute and refusing to supply the telephone number or address of the declarant, thereby preventing Kougasian from deposing or otherwise questioning him. "Extrinsic fraud is conduct which prevents a party from presenting his claim in court. [*11] " Wood v. McEwen, 644 F.2d 797, 801 (9th Cir. 1981). Under California law, extrinsic fraud is a basis for setting aside an earlier judgment. See Zamora v. Clayborn Contracting Group, Inc., 28 Cal. 4th 249, 121 Cal. Rptr. 2d 187, 47 P.3d 1056, 1063 (Cal. 2002).
Lexis-Nexis
Three of Kougasian's causes of action are based, in whole or in part, on alleged extrinsic fraud on the state court. n1 The alleged extrinsic fraud primarily consisted of submitting the false declaration to the state court in Kougasian I at the last minute and refusing to supply the telephone number or address of the declarant, thereby preventing Kougasian from deposing or otherwise questioning him. "Extrinsic fraud is conduct which prevents a party from presenting his claim in court. [*11] " Wood v. McEwen, 644 F.2d 797, 801 (9th Cir. 1981). Under California law, extrinsic fraud is a basis for setting aside an earlier judgment. See Zamora v. Clayborn Contracting Group, Inc., 28 Cal. 4th 249, 121 Cal. Rptr. 2d 187, 47 P.3d 1056, 1063 (Cal. 2002).
Lexis-Nexis
Kougasian alleges seven [*6] causes of action. In one of the causes of action, she seeks to set aside the state court judgments in Kougasian I and II, alleging that the defendants obtained those judgments through extrinsic fraud on the court. The allegations supporting her cause of action for extrinsic fraud also support two other causes of action in which she seeks damages for fraud and abuse of process. Kougasian particularly emphasizes the allegedly false declaration submitted in Kougasian I, upon which she partially relied in her complaint in Kougasian II. Kougasian alleged none of these three causes of action in her complaints in Kougasian I and II. In her remaining four causes of action, Kougasian seeks damages based on wrongful death, premises liability, and intentional and negligent infliction of emotional distress. Kougasian alleged these same four causes of action in Kougasian I and/or II.
Lexis-Nexis
Lexis-Nexis
extrinsic fraud
n. fraudulent acts which keep a person from obtaining information about his/her rights to enforce a contract or getting evidence to defend against a lawsuit. This could include destroying evidence or misleading an ignorant person about the right to sue. Extrinsic fraud is distinguished from "intrinsic fraud," which is the fraud that is the subject of a lawsuit.
See also: fraud intrinsic fraud
intrinsic fraud
n. an intentionally false representation (lie) which is part of the fraud and can be considered in determining general and punitive damages. This is distinguished from extrinsic fraud (collateral fraud) which was a deceptive means to keeping one from enforcing his/her legal rights.
See also: extrinsic fraud fraud
Law.com
n. fraudulent acts which keep a person from obtaining information about his/her rights to enforce a contract or getting evidence to defend against a lawsuit. This could include destroying evidence or misleading an ignorant person about the right to sue. Extrinsic fraud is distinguished from "intrinsic fraud," which is the fraud that is the subject of a lawsuit.
See also: fraud intrinsic fraud
intrinsic fraud
n. an intentionally false representation (lie) which is part of the fraud and can be considered in determining general and punitive damages. This is distinguished from extrinsic fraud (collateral fraud) which was a deceptive means to keeping one from enforcing his/her legal rights.
See also: extrinsic fraud fraud
Law.com
We conclude that Rooker-Feldman does not deprive the district court of subject matter jurisdiction. We therefore reverse and remand for further proceedings. On remand, the district court may determine, [*2] inter alia, whether the suit should be dismissed under California preclusion law pursuant to 28 U.S.C. § 1738.
28 U.S.C. § 1738.
28 U.S.C. § 1738.
The government moved to dismiss, and the district court granted the 12(b)(1) and (b)(6) motion on the grounds that the discretionary-function exception to the FTCA shielded the government from liability on plaintiffs' claims, and that no tort action was available for similar conduct under Arizona law. We disagree on both counts, and, accordingly, we reverse and remand.
I
[1] The FTCA waives sovereign immunity for specified torts of federal employees, including negligent or wrongful acts or omissions "in the same manner and to the same extent as a private individual under like circumstances," 28 U.S.C. § 2674, [*3] would be liable under the law of the state "where the act or omission occurred." 28 U.S.C. § 1346(b). A limitation on this waiver of sovereign immunity exists where the government is performing a "discretionary function," whether or not the discretion is abused. Miller v. United States, 163 F.3d 591, 593 (9th Cir. 1998). However, the discretionary-function exception covers acts which involve an element of choice; it does not apply where a "federal statute, regulation, or policy specifically "prescribes a course of action for an employee to follow," because "in this event, the employee has no rightful option but to adhere to the directive." Berkovitz v. United States, 486 U.S. 531, 536, 100 L. Ed. 2d 531, 108 S. Ct. 1954 (1988). Further, the exception protects only government actions and decisions based on "social, economic, and political policy." Id. at 537. The government bears the burden of establishing that the test is met and that discretionary immunity applies. Miller, 163 F.3d at 594.
[2] Taking all of the allegations of the complaint as true, and construing these facts in the light most favorable [*4] to the nonmoving party, as we must when reviewing entry of final judgment on a 12(b)(1) and 12(b)(6) motion to dismiss, see United States v. One 1997 Mercedes E420, 175 F.3d 1129, 1131 n.1 (9th Cir. 1999), we hold that the government has failed to carry its burden here.
[7] In sum, the government has failed to establish that discretionary immunity applies with respect to either Kirk's or Varland's actions. See Miller, 163 F.3d at 594.
II
[8] Because [*7] the FTCA does not create liability, but merely waives sovereign immunity to the extent that state-law would impose liability on a "private individual in similar circumstances," 28 U.S.C. § 2674, we must also determine whether plaintiffs have pled facts sufficient to justify the imposition of liability under ordinary state-law principles.
[9] Generally, the United States can be held liable under the FTCA only when liability would attach to a private actor under the law of the place where the tort occurred. Delta Savings Bank v. United States, 265 F.3d 1017, 1024 (9th Cir. 2001). However, the United States may be liable " 'for the performance of some activities that private persons do not perform,' . . . when a state or municipal entity would be held liable under the law where the activity occurred." Concrete Tie of San Diego, Inc. v. Liberty Constr., Inc., 107 F.3d 1368, 1371 (9th Cir. 1997) (quoting Hines v. United States, 60 F.3d 1442, 1448 (9th Cir. 1995)). In such instances, liability attaches if the United States breaches "a mandatory duty for which a cause of action lies." Id.
2004 U.S. App. LEXIS 6246
I
[1] The FTCA waives sovereign immunity for specified torts of federal employees, including negligent or wrongful acts or omissions "in the same manner and to the same extent as a private individual under like circumstances," 28 U.S.C. § 2674, [*3] would be liable under the law of the state "where the act or omission occurred." 28 U.S.C. § 1346(b). A limitation on this waiver of sovereign immunity exists where the government is performing a "discretionary function," whether or not the discretion is abused. Miller v. United States, 163 F.3d 591, 593 (9th Cir. 1998). However, the discretionary-function exception covers acts which involve an element of choice; it does not apply where a "federal statute, regulation, or policy specifically "prescribes a course of action for an employee to follow," because "in this event, the employee has no rightful option but to adhere to the directive." Berkovitz v. United States, 486 U.S. 531, 536, 100 L. Ed. 2d 531, 108 S. Ct. 1954 (1988). Further, the exception protects only government actions and decisions based on "social, economic, and political policy." Id. at 537. The government bears the burden of establishing that the test is met and that discretionary immunity applies. Miller, 163 F.3d at 594.
[2] Taking all of the allegations of the complaint as true, and construing these facts in the light most favorable [*4] to the nonmoving party, as we must when reviewing entry of final judgment on a 12(b)(1) and 12(b)(6) motion to dismiss, see United States v. One 1997 Mercedes E420, 175 F.3d 1129, 1131 n.1 (9th Cir. 1999), we hold that the government has failed to carry its burden here.
[7] In sum, the government has failed to establish that discretionary immunity applies with respect to either Kirk's or Varland's actions. See Miller, 163 F.3d at 594.
II
[8] Because [*7] the FTCA does not create liability, but merely waives sovereign immunity to the extent that state-law would impose liability on a "private individual in similar circumstances," 28 U.S.C. § 2674, we must also determine whether plaintiffs have pled facts sufficient to justify the imposition of liability under ordinary state-law principles.
[9] Generally, the United States can be held liable under the FTCA only when liability would attach to a private actor under the law of the place where the tort occurred. Delta Savings Bank v. United States, 265 F.3d 1017, 1024 (9th Cir. 2001). However, the United States may be liable " 'for the performance of some activities that private persons do not perform,' . . . when a state or municipal entity would be held liable under the law where the activity occurred." Concrete Tie of San Diego, Inc. v. Liberty Constr., Inc., 107 F.3d 1368, 1371 (9th Cir. 1997) (quoting Hines v. United States, 60 F.3d 1442, 1448 (9th Cir. 1995)). In such instances, liability attaches if the United States breaches "a mandatory duty for which a cause of action lies." Id.
2004 U.S. App. LEXIS 6246
In deciding a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party and must draw all permissible inferences from the submitted affidavits, exhibits, interrogatory answers, and depositions in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 155, 91 L. Ed. 2d 202, 106 S. Ct. 2505 [1986]; Van v. City of New York, 72 F.3d 1040, 1048-49 [2d Cir. 1995].
"The U.S. government, like other sovereign entities, enjoys sovereign immunity from liability for its agents' tortious acts. Doe v. U.S., 838 F.2d 220 (7th Cir. 1988). Congress waived this immunity for a wide range of tort claims when it enacted the Federal Tort Claims Act. The FTCA permits a tort suit against the United States 'where injury to person or property is "caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment.' " While this waiver of sovereign immunity is broad, it is not without limit. Calderon v. U.S., 123 F.3d 947 (7th Cir. 1997) (explaining that 'many important classes of tort claims are excepted from the act's coverage'). For example, the government has not consented to be sued for the intentional torts of its employees and agents. 28 U.S.C. sec2680(h); Sheridan v. U.S., 487 U.S. 392, 108 S.Ct. 2449, 101 L.Ed.2d 352 (1988). The FTCA contains a jurisdictional limitation that specifies that its 'broad grant of jurisdiction "shall not apply to ... any claim arising out of assault, battery" or other specified intentional torts.' (28 U.S.C. sec2680(h))."
28 U.S.C. §[1346[b].
Subject to the provisions of chapter 171 of this title, the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
28 U.S.C. §[1346[b].
Subject to the provisions of chapter 171 of this title, the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
28 U.S.C. §[1346[b].
Copyright 2003 ALM Properties, Inc. All Rights Reserved.
National Law Journal
September 15, 2003
SECTION: DECISIONS; Vol. 26; No. 3; Pg. 12
LENGTH: 2542 words
HEADLINE: DECISIONS
BODY:
ATTORNEY FEES
Defendant, vindicated, can get fees as damages
The Federal Tort Claims Act [FTCA] allows for the recovery of attorney fees as damages for abuse of process and malicious prosecution if "the law of the place" where the tort occurred so provides, the U.S. Circuit Court for the District of Columbia said on Sept. 2. Tri-State Hospital Supply Corp. v. U.S., No. 02-5045.
The U.S. Department of Justice sued Tri-State, a company that imported surgical instruments from Pakistan, for allegedly falsifying customs forms. After the DOJ dropped its fraud claim, the jury returned a verdict in Tri-State's favor on the remaining negligence claim. Tri-State then sued the DOJ under the FTCA, alleging malicious prosecution and abuse of process and seeking $3.2 million in compensation for the attorney fees it spent defending itself. But ruling that it lacked subject-matter jurisdiction, a D.C. federal court dismissed the case.
Reversing, the circuit court noted that the FTCA grants exclusive jurisdiction to the district courts over civil actions against the U.S. seeking money damages for injury or loss of property under circumstances where the country, if it was a private person, would be liable to the claimant "in accordance with the law of the place where the act or omission occurred." It ruled that damages incurred in defending a suit later found to be malicious or abusive may be characterized as damages for "injury of loss of property."
Decisions - Federal Tort Claims Act (FTCA)
National Law Journal
September 15, 2003
SECTION: DECISIONS; Vol. 26; No. 3; Pg. 12
LENGTH: 2542 words
HEADLINE: DECISIONS
BODY:
ATTORNEY FEES
Defendant, vindicated, can get fees as damages
The Federal Tort Claims Act [FTCA] allows for the recovery of attorney fees as damages for abuse of process and malicious prosecution if "the law of the place" where the tort occurred so provides, the U.S. Circuit Court for the District of Columbia said on Sept. 2. Tri-State Hospital Supply Corp. v. U.S., No. 02-5045.
The U.S. Department of Justice sued Tri-State, a company that imported surgical instruments from Pakistan, for allegedly falsifying customs forms. After the DOJ dropped its fraud claim, the jury returned a verdict in Tri-State's favor on the remaining negligence claim. Tri-State then sued the DOJ under the FTCA, alleging malicious prosecution and abuse of process and seeking $3.2 million in compensation for the attorney fees it spent defending itself. But ruling that it lacked subject-matter jurisdiction, a D.C. federal court dismissed the case.
Reversing, the circuit court noted that the FTCA grants exclusive jurisdiction to the district courts over civil actions against the U.S. seeking money damages for injury or loss of property under circumstances where the country, if it was a private person, would be liable to the claimant "in accordance with the law of the place where the act or omission occurred." It ruled that damages incurred in defending a suit later found to be malicious or abusive may be characterized as damages for "injury of loss of property."
Decisions - Federal Tort Claims Act (FTCA)
In May 2003, the U.S. Supreme Court held that states are subject to private lawsuits under the Family and Medical Leave Act. The decision, in Nevada Dept. of Human Resources v. Hibbs, left many court watchers wondering if the justices had concluded that their long effort to rehabilitate 11th Amendment state sovereign immunity had gone far enough.
Copyright 2003 ALM Properties, Inc. All Rights Reserved.
New Jersey Law Journal
October 27, 2003
Copyright 2003 ALM Properties, Inc. All Rights Reserved.
New Jersey Law Journal
October 27, 2003
SECTION: POINTS OF VIEW; Pg. 74
LENGTH: 1863 words
HEADLINE: People v. State
The law should protect citizens' dignity, not states' immunity. Even the Supreme Court's Hibbs decision doesn't do that.
BYLINE: By Robert A. Levy
BODY:
What a difference a year makes. In an unbroken string of seven cases from 1996 through 2002, the Supreme Court expanded the doctrine of sovereign immunity, which bars most private lawsuits against state governments for damages without their consent. In May, however, the Court reversed course in Nevada Department of Human Resources v. Hibbs. Writing for a five-member majority, Chief Justice William Rehnquist held that the 14th Amendment sometimes does permit Congress to abrogate a state's sovereign immunity. That's the right result, but the chief justice used the wrong reasoning to get there.
The Court must not forget that personal liberty is the indispensable ingredient of the American experience. Otherwise, in its zeal to constrain overarching federal power, the Court might frustrate the responsibility of the national government under the 14th Amendment to secure individual rights.
For that reason, Hibbs is an important case and a welcome turn in the Court's view of sovereign immunity. Congress may now abrogate state immunity in enforcing the 14th Amendment if three conditions are met. First, Congress' intent to abrogate immunity must be unmistakably clear. Second, as laid out in City of Boerne v. Flores [1997], Congress must identify an extensive history of discrimination, weighty enough to justify prophylactic legislation. Third, the Court said in Hibbs, Boerne also requires that there be "congruence and proportionality" between the injury and the statutory remedy.
Three constitutional amendments are at the heart of the debate. The 10th Amendment restricts national powers by limiting them to functions enumerated in the Constitution. The 14th Amendment increases those powers by authorizing congressional intervention when states violate individual rights. And the 11th Amendment states in relevant part that "The Judicial power of the United States shall not . . . extend to any suit . . . against [a] State by Citizens of another State." Despite that crystalline text, until Hibbs, the Rehnquist Court had distended the 11th Amendment, using it to constrict the reach of federal power under the 14th.
No matter. The Court acknowledged but one exemption from its ballooning immunity doctrine: States would be vulnerable to private suits pursuant to federal laws that enforce the 14th Amendment. But then, in four cases from 1999 through 2001, the Court steadily chipped away at that exemption.
But if state dignity is the justification for sovereign immunity, what can explain the numerous exceptions that have been carved out? Municipalities, which are creations of the state, can be sued under the 11th Amendment. So can state officials in their personal capacity. A state itself can be sued, by the federal government or another state. And Hibbs confirms that a state can be sued by private individuals in certain enforcement actions under the 14th Amendment.
Until we have the good sense to repeal the 11th Amendment, state sovereign immunity must reach no further than the amendment's unambiguous text. In that respect, Justice Stevens comes closest to the mark in his Hibbs concurrence. He first concedes uncertainty about whether the FMLA "was truly needed to secure the guarantees of the 14th Amendment." Stevens did not have to resolve that question. Even without a 14th Amendment pedigree, observed Stevens, the FMLA fits comfortably under a commerce clause rubric that has been decades in the making. Notwithstanding Lopez and Morrison, the Rehnquist Court is not prepared to restore the commerce clause to its original purpose -- preventing states from impeding the free flow of interstate trade.
http://80-web.lexis-nexis.com.hokhmah.stmarys-ca.edu:2048/universe/document?_m=54aac404bd63ef58c5aeec5ca6bb490a&_docnum=7&wchp=dGLbVzb-zSkVA&_md5=49770467a4a5d09fbeae293668e25de8
LENGTH: 1863 words
HEADLINE: People v. State
The law should protect citizens' dignity, not states' immunity. Even the Supreme Court's Hibbs decision doesn't do that.
BYLINE: By Robert A. Levy
BODY:
What a difference a year makes. In an unbroken string of seven cases from 1996 through 2002, the Supreme Court expanded the doctrine of sovereign immunity, which bars most private lawsuits against state governments for damages without their consent. In May, however, the Court reversed course in Nevada Department of Human Resources v. Hibbs. Writing for a five-member majority, Chief Justice William Rehnquist held that the 14th Amendment sometimes does permit Congress to abrogate a state's sovereign immunity. That's the right result, but the chief justice used the wrong reasoning to get there.
The Court must not forget that personal liberty is the indispensable ingredient of the American experience. Otherwise, in its zeal to constrain overarching federal power, the Court might frustrate the responsibility of the national government under the 14th Amendment to secure individual rights.
For that reason, Hibbs is an important case and a welcome turn in the Court's view of sovereign immunity. Congress may now abrogate state immunity in enforcing the 14th Amendment if three conditions are met. First, Congress' intent to abrogate immunity must be unmistakably clear. Second, as laid out in City of Boerne v. Flores [1997], Congress must identify an extensive history of discrimination, weighty enough to justify prophylactic legislation. Third, the Court said in Hibbs, Boerne also requires that there be "congruence and proportionality" between the injury and the statutory remedy.
Three constitutional amendments are at the heart of the debate. The 10th Amendment restricts national powers by limiting them to functions enumerated in the Constitution. The 14th Amendment increases those powers by authorizing congressional intervention when states violate individual rights. And the 11th Amendment states in relevant part that "The Judicial power of the United States shall not . . . extend to any suit . . . against [a] State by Citizens of another State." Despite that crystalline text, until Hibbs, the Rehnquist Court had distended the 11th Amendment, using it to constrict the reach of federal power under the 14th.
No matter. The Court acknowledged but one exemption from its ballooning immunity doctrine: States would be vulnerable to private suits pursuant to federal laws that enforce the 14th Amendment. But then, in four cases from 1999 through 2001, the Court steadily chipped away at that exemption.
But if state dignity is the justification for sovereign immunity, what can explain the numerous exceptions that have been carved out? Municipalities, which are creations of the state, can be sued under the 11th Amendment. So can state officials in their personal capacity. A state itself can be sued, by the federal government or another state. And Hibbs confirms that a state can be sued by private individuals in certain enforcement actions under the 14th Amendment.
Until we have the good sense to repeal the 11th Amendment, state sovereign immunity must reach no further than the amendment's unambiguous text. In that respect, Justice Stevens comes closest to the mark in his Hibbs concurrence. He first concedes uncertainty about whether the FMLA "was truly needed to secure the guarantees of the 14th Amendment." Stevens did not have to resolve that question. Even without a 14th Amendment pedigree, observed Stevens, the FMLA fits comfortably under a commerce clause rubric that has been decades in the making. Notwithstanding Lopez and Morrison, the Rehnquist Court is not prepared to restore the commerce clause to its original purpose -- preventing states from impeding the free flow of interstate trade.
http://80-web.lexis-nexis.com.hokhmah.stmarys-ca.edu:2048/universe/document?_m=54aac404bd63ef58c5aeec5ca6bb490a&_docnum=7&wchp=dGLbVzb-zSkVA&_md5=49770467a4a5d09fbeae293668e25de8
FEDERAL TORT CLAIMS ACT - The FTCA provides a limited waiver of the federal government's sovereign immunity when its employees are negligent within the scope of their employment. Under the FTCA, the government can only be sued 'under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.' 28 U.S.C. S 1346(b). Thus, the FTCA does not apply to conduct that is uniquely governmental, that is, incapable of performance by a private individual.
28 U.S.C. S 2680(h) provides that the government is not liable when any of its agents commits the torts of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights. However, it also provides an exception. The government is liable if a law enforcement officer commits assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. The government is not liable if the claim against law enforcement officers is for libel, slander, misrepresentation, deceit, or interference with contract. Congress has not waived the government's sovereign immunity against all law enforcement acts or omissions.
Furthermore, the FTCA is limited by a number of exceptions pursuant to which the government is not subject to suit, even if a private employer could be liable under the same circumstances. These exceptions include the discretionary function exception, which bars a claim 'based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.' 28 U.S.C. S 2680(a).
In order to determine whether conduct falls within the discretionary function exception, the courts must apply a two-part test established in Berkovitz v. U.S., 486 U.S. 531, 536 ('88). See Kennewick Irrigation Dist. v. U.S., 880 F.2d 1018, 1025 (9th Cir.'89). First, the question must be asked whether the conduct involved 'an element of judgment or choice.' U.S. v. Gaubert, 499 U.S. 315, 322 ('91) (quotation omitted). This requirement is not satisfied if a 'federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.' Berkovitz, 486 U.S. at 536. Once the element of judgment is established, the next inquiry must be 'whether that judgment is of the kind that the discretionary function exception was designed to shield' in that it involves considerations of 'social, economic, and political policy.' Gaubert, 499 U.S. at 322-23.
Absent specific statutes or regulations, where the particular conduct is discretionary, the failure of the government properly to train its employees who engage in that conduct is also discretionary. See, e.g., Flynn v. U.S., 902 F.2d 1524 (10th Cir.'90) (failure of National Park Service to train its employees as to proper use of emergency equipment was discretionary).
The FTCA specifies that the liability of the U.S. is to be determined 'in accordance with the law of the place where the [allegedly tortious] act or omission occurred.' 28 U.S.C. S 1346(b). In an action under the FTCA, a court must apply the law the state courts would apply in the analogous tort action, including federal law. See Caban v. U.S., 728 F.2d 68, 72 (2d Cir.'84); see also Richards v. U.S., 369 U.S. 1, 11-13 ('62).
Under California law, a California court would apply federal law to determine whether an arrest by a federal officer was legally justified and hence privileged. See Trenouth v. U.S., 764 F.2d 1305, 1307 (9th Cir.'85) (applying federal law in an FTCA action for false imprisonment to determine legality of arrest by Department of Defense officers in California); cf. Gasho v. U.S., 39 F.3d 1420, 1427-32 (9th Cir.'94) (applying federal law in FTCA false imprisonment action against federal customs officials to determine if probable cause justified arrest in Arizona).
A plaintiff cannot bring an FTCA claim against the United States based solely on conduct that violates the Constitution because such conduct may violate only federal, and not state, law. See FDIC v. Meyer, 114 S.Ct. 996, 1001 ('94).
The substitution provision of the Federal Employees Liability Reform and Tort Compensation Act (FELRTCA) provides that '[u]pon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose . . . the United States shall be substituted as the party defendant.' 28 U.S.C. S 2679(d)(1). The purpose of this amendment to the Federal Tort Claims Act was to 'remove the potential personal liability of Federal employees for common law torts committed within the scope of their employment, and . . . instead provide that the exclusive remedy for such torts is through an action against the United States under the FTCA.' H.R. Rep. No. 700, 100th Cong., 2d Sess. 4 (1988)
Under the FTCA, the U.S. is subject to liability for the negligence of an independent contractor only if it can be shown that the government had authority to control the detailed physical performance of the contractor and exercised substantial supervision over its day-to-day activities. See U.S. v. Orleans, 425 U.S. 807, 814-15 ('76); Letnes v. U.S., 820 F.2d 1517, 1519 (9th Cir.'87).
http://www.lectlaw.com/def/f071.htm
28 U.S.C. S 2680(h) provides that the government is not liable when any of its agents commits the torts of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights. However, it also provides an exception. The government is liable if a law enforcement officer commits assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. The government is not liable if the claim against law enforcement officers is for libel, slander, misrepresentation, deceit, or interference with contract. Congress has not waived the government's sovereign immunity against all law enforcement acts or omissions.
Furthermore, the FTCA is limited by a number of exceptions pursuant to which the government is not subject to suit, even if a private employer could be liable under the same circumstances. These exceptions include the discretionary function exception, which bars a claim 'based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.' 28 U.S.C. S 2680(a).
In order to determine whether conduct falls within the discretionary function exception, the courts must apply a two-part test established in Berkovitz v. U.S., 486 U.S. 531, 536 ('88). See Kennewick Irrigation Dist. v. U.S., 880 F.2d 1018, 1025 (9th Cir.'89). First, the question must be asked whether the conduct involved 'an element of judgment or choice.' U.S. v. Gaubert, 499 U.S. 315, 322 ('91) (quotation omitted). This requirement is not satisfied if a 'federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.' Berkovitz, 486 U.S. at 536. Once the element of judgment is established, the next inquiry must be 'whether that judgment is of the kind that the discretionary function exception was designed to shield' in that it involves considerations of 'social, economic, and political policy.' Gaubert, 499 U.S. at 322-23.
Absent specific statutes or regulations, where the particular conduct is discretionary, the failure of the government properly to train its employees who engage in that conduct is also discretionary. See, e.g., Flynn v. U.S., 902 F.2d 1524 (10th Cir.'90) (failure of National Park Service to train its employees as to proper use of emergency equipment was discretionary).
The FTCA specifies that the liability of the U.S. is to be determined 'in accordance with the law of the place where the [allegedly tortious] act or omission occurred.' 28 U.S.C. S 1346(b). In an action under the FTCA, a court must apply the law the state courts would apply in the analogous tort action, including federal law. See Caban v. U.S., 728 F.2d 68, 72 (2d Cir.'84); see also Richards v. U.S., 369 U.S. 1, 11-13 ('62).
Under California law, a California court would apply federal law to determine whether an arrest by a federal officer was legally justified and hence privileged. See Trenouth v. U.S., 764 F.2d 1305, 1307 (9th Cir.'85) (applying federal law in an FTCA action for false imprisonment to determine legality of arrest by Department of Defense officers in California); cf. Gasho v. U.S., 39 F.3d 1420, 1427-32 (9th Cir.'94) (applying federal law in FTCA false imprisonment action against federal customs officials to determine if probable cause justified arrest in Arizona).
A plaintiff cannot bring an FTCA claim against the United States based solely on conduct that violates the Constitution because such conduct may violate only federal, and not state, law. See FDIC v. Meyer, 114 S.Ct. 996, 1001 ('94).
The substitution provision of the Federal Employees Liability Reform and Tort Compensation Act (FELRTCA) provides that '[u]pon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose . . . the United States shall be substituted as the party defendant.' 28 U.S.C. S 2679(d)(1). The purpose of this amendment to the Federal Tort Claims Act was to 'remove the potential personal liability of Federal employees for common law torts committed within the scope of their employment, and . . . instead provide that the exclusive remedy for such torts is through an action against the United States under the FTCA.' H.R. Rep. No. 700, 100th Cong., 2d Sess. 4 (1988)
Under the FTCA, the U.S. is subject to liability for the negligence of an independent contractor only if it can be shown that the government had authority to control the detailed physical performance of the contractor and exercised substantial supervision over its day-to-day activities. See U.S. v. Orleans, 425 U.S. 807, 814-15 ('76); Letnes v. U.S., 820 F.2d 1517, 1519 (9th Cir.'87).
http://www.lectlaw.com/def/f071.htm
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