12/19/15

Getting Around Protected Rights

BY T.F. STERN

This past week many sites, to include The Federalist Papers Project, linked to a video of Congressman Trey Gowdy’s public hearings. Acting on behalf of the American public he carefully and methodically destroyed Deputy Assistant Secretary Ms. Burriesci, representing the Department of Homeland Security, as government officials attempted to explain the ‘process’ by which American citizens could petition the government to restore rights which had been removed, those who’d been denied their right to own and purchase firearms, these same individuals who’d been placed on the Do Not Fly List.

Congressman Gowdy wanted to know more about the ‘process’; but what he really wanted was to remind Ms. Burriesci about a different ‘process’, one which was being ignored completely…

Congressman Gowdy thoughtfully explained his use of the word ‘process’ as he originally referred to it, to be more specific, the term is Due Process. He reminded the witness that our constitution limits government’s ability to infringe on any individual’s God given inalienable rights without Due Process.

For clarification purposes, Ryan Williams’s entry to the 2010 Yale Law Journal defined this term and concept more precisely:

“In United States constitutional law, substantive due processis a principle which allows courts to protect certain rights deemed fundamental from government interference under the authority of the due process clauses of the Fifth and Fourteenth Amendments to the Constitution, which prohibit the federal and state governments, respectively, from depriving any person of “life, liberty, or property, without due process of law.” That is, substantive due process demarcates the line between acts by persons that courts hold are subject to government regulation or legislation and those acts that courts place beyond the reach of governmental interference. Whether the Fifth and/or Fourteenth Amendments were intended to serve this function continues to be a matter of scholarly as well as judicial discussion and dissent.”

Timothy Sandefur recorded in, The Right to Earn a Living: Economic Freedom and the Law, as published via the Cato Institute in 2010:

“In contrast, substantive due process aims to protect individuals against majoritarian policy enactments that exceed the limits of governmental authority—that is, courts may find that a majority’s enactment is not law, and cannot be enforced as such, regardless of how fair the processes of enactment and enforcement actually are.”

In short, there are laws being enforced (far too many) which are outside of restrictions placed on government, restrictions intended to safeguard individual God given rights (or Natural rights) and it is important to remind those in government that they are not above the Constitution and have no such powers. We are, after all, a nation dependent on the Rule of Law.

Let me insert a partial transcription of Congressman Gowdy’s efforts…

“What process is afforded a United States citizen before that person’s Constitutional right is infringed. That [The President] is fine with doing it with the Second Amendment.

My question is, how about the First? How about we not let them set up a website, or a Google account?

How about we not let them join a church until they petition Government to get off the list? How about not get a lawyer? How about the 6th amendment?

How about you can’t get a lawyer until you petition the government to get off the list? Or my favorite, how about the 8th amendment?

We’re going to subject you to cruel and unusual punishment until you petition the government to get off the list?

Is there another Constitutional right that we treat the same way for American citizens than we do the Second Amendment? Can you think of one?”

“The No-Fly List itself is a violation of Constitutional rights all by itself, but to use that illegal list as a way to snatch other rights away from the people is abhorrent and sets a dangerous precedent for the future.”

When our government tries to get around the Rule of Law as if it were outside of restrictions placed on it by the Constitution, at that time we can say without equivocation that tyranny has replaced our representative form of government.

Dan Riehl wrote an article the day after the San Bernardino premeditated attack in which Muslim Terrorists proudly admitted their association with ISIS and then murdered 14 Americans. Riehl pointed out that Attorney General, Loretta Lynch, on behalf of the Department of Justice was more concerned about anti-Muslim rhetoric’s effect on those of that faith than the threat posed to the American public.

“Loretta Lynch, at a press conference yesterday, termed the San Bernardino shootings a “wonderful opportunity” to change the nature of police work: “We’re at the point where these issues have come together really like never before in law enforcement thought and in our nation’s history and it gives us a wonderful opportunity and a wonderful moment to really make significant change.”

The Obama administration continues to use any gun related tragedy as a means to launch additional gun control measures. They went to extreme measures to cover this event, as with other shootings as if guns walked in and shot all those folks without a Muslim Terrorist holding those guns.

Obama has threatened to implement extreme gun control actions via Executive Order, effectively bypassing Congress. If you put these two thoughts together we have a totalitarian effort (tyranny) to eradicate the 2^nd Amendment; but also destroy freedom of speech as protected by the 1^st Amendment.

So, back to Congressman Gowdy’s questions regarding our government’s attempts to get around the constitution, to get around inalienable God given rights and deny any American their right to own and bear arms, to express their thoughts without fear of government interference or imprisonment… to get around Due Process…

What part of Due Process, more specifically, what part of substantive due process do these department heads not understand? (Really, you actually consider that a possibility?) No, under the Obama administration there is a willful and calculated effort to get around the constitution.

David A. Patten, along with almost every other political correspondent, recordedBarrack Hussein Obama’s comments regarding the Constitution back when he was running for the presidency.

“Democratic presidential candidate Barack Obama described the U.S. Constitution as having “deep flaws” during a September 2001 Chicago public radio program, adding that the country’s Founding Fathers had “an enormous blind spot” when they wrote it.

Obama also remarked that the Constitution “reflected the fundamental flaw of this country that continues to this day.”

Obama’s promise to America has been, and continues to be a great Transformation, to make it what (he thinks) it should be. His actions support his promise.

America will no longer be a land of liberty; but instead will become a totalitarian communist state where your constitutional republic, your God given inalienable rights as set down by the Founding Fathers, and without question, Due Process and the Rule of Law will become a faded memory.

The Moral Liberal’s Senior Editor, T.F. Stern,is a retired City of Houston police officer, self-employed locksmith, and gifted political and social commentator. His popular and insightful blog, T.F. Sterns Rantings, has been up and at it since January of 2005.

02/1/15

Will New AG Support Civil Forfeiture Reform?

By: Alan Caruba
Warning Signs

The Wednesday hearings on the confirmation of a new Attorney General, Loretta Lynch, lasted hours because members of the Senate Judiciary Committee were often called away to vote. In the wake of the scandals surrounding the manner in which Eric Holder’s Department of Justice has functioned, the hearing, led now by Republicans, could have been harsh, but it was not. The Wall Street Journal characterized the mood in the hearing room as “cordial.” Watching it on CSPAN, I can confirm that.

In early November the Wall Street Journal, in an opinion titled “The Next Attorney General: One area to question Loretta Lynch is civil asset forfeiture”, it noted that “As a prosecutor Ms. Lynch had also been aggressive in pursuing civil asset forfeiture, which has become a form of politicking for profit.”

“She recently announced that her office had collected more than $904 million in criminal and civil actions in fiscal 2013, according to the Brooklyn Daily Eagle. Liberals and conservatives have begun to question forfeiture as an abuse of due process that can punish the innocent.”

That caught my eye because the last thing America needs is an Attorney General who wants to use this abuse of the right to be judged innocent until proven guilty. Civil forfeiture puts no limits on the seizure of anyone’s private property and financial holdings. It is a law that permits this to occur even if based on little more than conjecture. It struck me then and now as a bizarre and distinctly un-American law.

Writing in the Huffington Post in late 2014, Bob Barr, a former Congressman and the principal in Liberty Strategies, told of the passage of the Civil Asset Forfeiture Reform Act (CAFRA) in 2000 “as a milestone in the difficult—almost impossible—task of protecting individual rights against constant incursions by law-and-order officials.” The problem is that civil forfeiture was and is being used to seize millions.

“The staggering dollar amounts reflected in these statistics, however,” wrote Barr, “does not pinpoint the real problem of how law enforcement agencies at all levels of government employ the power of asset forfeiture as a means of harming, and in many instances, destroying the livelihood of individuals and small businesses.”

“In pursuing civil assets, the government need never charge the individuals with violations of criminal laws; therefore never having to prove beyond a reasonable doubt that they are guilty of having committed any crimes.”

As noted above, as the U.S. Attorney for the Eastern District of New York, Ms. Lynch’s office had raked in millions from civil forfeiture. Forbes magazine reports that she has used it in more than 120 cases and, prior to the hearing to confirm her as the next Attorney General US News & World Report noted on January 26 that Ms. Lynch’s office had quietly dropped a $450,000 civil forfeiture case a week before the hearings. She clearly did not want to answer questions on this or any other comparable case.

Just one example tells you why there is legitimate concern regarding this issue and it appeared in a January 3^rd edition of Townhall.com. I recommend you read the account written by Amy Herrig, the vice president of Gas Pipe, Inc, a Texas company that an editor’s note reported as “faced with extinction of a civil asset forfeiture to the federal government of more than $16 million. Neither Herrig nor her father, Jerry Shults, have been charged with any criminal offense.”

Jerry Shults is a classic example of an American entrepreneur. After having served in the Air Force and serving in Vietnam where he earned a Bronze Star, Shults moved to Dallas where he began selling novelty items at pop festivals throughout Texas. Since the first store that he opened had gas pipes exposed in the ceiling, he dubbed it Gas Pipe, Inc. Suffice to say his hard work paid off for him. By the late 1990s, he had seven stores, a distribution company, a five-star lodge in Alaska, and was an American success story. By 2014 the company had grown to fourteen stores and other notable properties.

By then he had been in business for nearly 45 years and employed nearly two hundred people. And then someone in the northern district of Texas, Dallas division, initiated a civil forfeiture seizure against him. I was so appalled by his daughter’s description of events I secured a copy of the September 15 complaint that was filed. I am no attorney, but it looked to me as spurious as one could have imagined, except for the details of Gas Pipe’s assets. On 88 single-spaced pages, those were spelled out meticulously and all were subject to seizure despite the fact that not a single instance of criminality had been proven in a court of law. Imagine having 45 years of success erased by one’s own government in this fashion. It is appalling.

Assuming Ms. Lynch will be approved for confirmation as our next Attorney General, civil forfeiture is the largely hidden or unknown issue that could spell disaster for countless American businesses, large and small, in the remaining two years of the Obama administration. She has a record of pursuing it. The upside of this is that the current AG, Eric Holder, in early January announced that the DOJ would no longer acquire assets seized as part of a state law violation.

On the same day of Ms. Lynch’s hearing, January 28, writing in The Hill’s Congress Blog, former Representative Rick Boucher (D-VA) was joined by Bruce Mehlman, a former Assistant Secretary of Commerce in the George W. Bush administration, to raise a note of warning. “The topic of civil asset forfeiture should be an important part of the discussion with Lynch. As U.S. Attorney for the Eastern District of New York, Lynch was the top official in a hotbed of civil asset forfeiture—helping to bring in hundreds of millions of dollars under the program in recent years.”

Ms. Lynch was not asked about civil forfeiture by either the Republican or Democrat members of the Senate Judiciary Committee. It was a lost opportunity and, if the new Attorney General applies her enthusiasm for it to the entire nation, it will be yet another Obama administration nightmare.