From: Damaged Justice <frogfarm@yakko.cs.wmich.edu>
Date: Thu, 13 Jul 95 20:09:45 PDT
To: hayden@krypton.mankato.msus.edu (Robert A. Hayden)
Subject: Suing/Reputations (was: Root Causes)
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Message-ID: <199507140314.XAA05815@yakko.cs.wmich.edu>
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Robert A. Hayden writes:

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

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

A few citations, hopefully relevant:

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

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

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

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

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

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

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

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

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

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


On a more relevant note:

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

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

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

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

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

All constructive comments are welcomed.)


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