In this case, the Village sold a golf course to TCGC, which later went bankrupt. During bankruptcy, the village asserted its rights under a restrictive covenant that ran with the land. The covenant, added to the property when the Village sold it, prevents any owner (especially a sovereign nation like Oneida) from taking the land off the property rolls. It is clear from the opinion that the Village of Hobart did this expressly to deny the Oneida Indian Nation the right to seek a fee-to-trust acquisition by the Secretary under 25 U.S.C. 465.

We suggest that Shelley v. Kraemer and/or the 14th Amendment precludes such covenants, but it is a close question.

This covenant reads:

Restriction on Transfer. Without the express written consent of the Village of Hobart, no owner of any interest in the Subject Real Estate . . . shall transfer any interest in the Subject Real Estate to any individual, entity, . . . organization, or sovereign nation, or during the period of ownership take any action the result of which would: (1) remove or eliminate the Subject Real Estate (or any part thereof) from the tax rolls of the Village of Hobart; (2) diminish or eliminate the payment of real estate taxes levied or assessed against the Subject Real Estate (or any part thereof) and / or (3) remove the Subject Real Estate (or any part thereof) from the zoning authority and / or jurisdiction of the Village of Hobart.

Shelley v. Kraemer forbids state courts from enforcing covenants that run with the land intended to prevent the use or occupancy of land by persons of color. The 14th Amendment prohibits a state actor (like the Village) from enjoying race-based restrictive covenants. It seems clear from the opinion that the Village of Hobart is targeting the Oneida Indian Nation. So is that a violation of the 14th Amendment? Perhaps. The bank didn't make the argument, so we don't have a definite statement in this case, but one would expect that the Nation might intervene and make the argument.

Regardless, here are the rest of the materials:

baylake-bank-motion-for-summary-judgment

village-of-hobart-motion-for-summary-judgment

baylake-bank-response-brief

This misinterpretation was the beginning of the end of government for, by, and of the people in the United States of America and the sitting president, Grover Cleveland knew it then when he said in his 1888 state of the Union address:

"As we view the achievements of aggregated capital, we discover the existence of trusts, combinations, and monopolies, while the citizen is struggling far in the rear or is trampled to death beneath an iron heel.

Corporations, which should be the carefully restrained creatures of law and the servants of the people, are fast becoming the people's masters."

--Grover Cleveland, 22nd and 24th President of the United States of America

3 December, 1888

Found this interesting quote in Grover Cleveland's 1888 'annual address to Congress:'

(given in a joint session of Congress)...(following the 1886 Santa Clara County Court Decision, which paved the way for Corporations enjoying 14th Amendment Protection and "corporate personhood.")

I wrote about a controversial new Missouri law, which took effect August 28, that drastically

Missouri has had a controversial and meaningful history with campaign contribution limits since 1994, when initially the state legislature passed a bill placing donation limits; however, a voter referendum in which 74% of voters elected to place even stricter limits on donations took effect before the bill became effective. Nonetheless, a subsequent legal challenge to the strict limits of the voter referendum led to the 8th Circuit Court of Appeals overturning the referendum based on First Amendment concerns.

After this defeat, the initial 1994 bill then became effective, and a 1997 amendment placed the limit at $1000, with a mechanism for adjustment of that amount for inflation. This lead to another legal challenge, making it all way to the U.S. Supreme Court in Nixon v. Shrink, where the Court re-visited Buckley v. Valeo for the first time in 23 years. In Buckley, the Court held that $1000 limits on campaign contributions for federal candidates were constitutional and not a violation of the First and Fourteenth Amendments; at the same time, the Court overturned limits placed on expenditures for a candidate as being unconstitutional restrictions on First Amendment free speech. With Nixon, the court held that the $1075 limit on Missouri contributions was not unconstitutional when taking inflation into consideration, and that the state did not need to show real harm in order to justify its contribution limits.

As of this year, the limits had not changed much:

The limits had been $325 for state House candidates, $675 for Senate candidates and $1,350 for statewide candidates. Committees not connected with a specific candidate were allowed to accept and donate 10 times that much.

Nonetheless, even with contribution limits, the money still found its way into the campaign, albeit with a circuitous, complex, and veiled system of political action committees, not to mention less ethical reports of large corporations urging their executives to contribute to those candidates that were favorable to the company, with many businesses reimbursing the executives, often as a part of routine pay raises. The Columbia Missourian recently noted of the ways around limits:

Missouri voters overwhelmingly backed contribution limits in 1994. But the cost of Missouri’s major campaigns has continued to climb into the double-digit millions. To get around the limits, big donors routinely pass their contributions to candidates through various local political party committees, which have been allowed to provide roughly 20 times the amount of aid to candidates as individual contributors

One ironic twist in this saga involves Jay Nixon, who argued before the U.S. Supreme Court on behalf of the state in Nixon. Nixon, the democratic candidate for governor, has repeatedly voiced his feelings against abolishing the limits, recently stating:

“This is a sad day for everyone who believes that regular Missourians, not wealthy special interests, should have the most powerful voice in electing our leaders,” Nixon said in a statement. “By signing this bill, Gov. Blunt has cleared the way for big corporations and wealthy interests to give millions to candidates. It’s a clear step in the wrong direction.”

Nonetheless, Nixon, according to the Post Dispatch, has played by the new rules, raising $410,000 from "big donors", including $100,000 from St. Louis personal injury attorneys Gray, Ritter and Graham. Of course, Republican candidate Kenny Hulsof has raised $1.6 million from big donors, and the Dispatch notes that this year's race is shaping up to be the most expensive in Missouri history:

With the caps being lifted, the race for governor could well break 2004's record as the most expensive gubernatorial race in state history. Even before the limits were erased, Nixon was on pace to break the record amount raised by a single candidate.

As of mid-July, Nixon had raised about $8.2 million. The record raised by a single candidate is $11.4 million, by Claire McCaskill in 2004. In that election cycle, McCaskill won a hard-fought primary against incumbent Gov. Bob Holden before losing the general election to Republican Matt Blunt.

The article points out that many of Nixon's largest donations have come from personal injury attorneys (Nixon opposes tort reform), while many of Hulsof's have come from big business, which are hoping to minimize their future risks through tort reform. The Kansas City Star analyzed the Ethics Commission filings as of Tuesday (candidates are required to file a report with the Ethics Commission within 48 hours of a donation over the traditional limits):

Hulshof had filed two reports listing 25 contributions averaging $48,360 each. Even without counting the Republican Governors Association’s contribution, Hulshof still pulled in nearly 50 percent more than Nixon and his average contribution was $25,375, or 23 percent larger.

Another interesting development is that Hulsof has continued to raise large amounts of cash from political action committees, even though that flies in the face of the earlier justifications for the abolishment of limits. Critics of the limits argued that they created an opaque system in which it was impossible to see who was handing out substantial sums of money. The new bill's sponsor, Sen. Charlie Shields (R-St. Joseph) recently stated:

“We hope to go back to a system where people will send money directly to candidates,” Shields said. “You’ll be able to track that, and if contributions are not going directly to candidates, you’ll have to question the motives.”

While that may be true, many large donors will still hope to remain anonymous, and the PAC route still allows this. One argument against the new bill is that it goes against the clear wishes of the electorate since 74% of those voting in 1994 were in favor of the limits. Those in favor of the new bill cite the increasingly high costs of running an effective campaign.

Although the GOP traditionally has benefited the most from large donors, some are pointing to the Barack Obama campaign as evidence that the gap has closed considerably, and Missouri State University Political Science professor George Conner notes that Democrats have evolved:

“Democrats are now more focused on all aspects of fundraising than they used to be,” Connor said. “They have improved to the point that they have almost caught up with the Republicans and nearly overcome the advantage that Republicans traditionally held.”

It will be interesting to see the final numbers after this Gubernatorial election, just as it will be interesting to see what comes next for this issue. If past history is any indication, another round of legal challenges could just around the corner.

Due process by definition is the principle that a government must respect all of an individual's legal rights, not just those they choose to respect, and refers to the Fifth Amendment of the United States Constitution; the Fifth and Fourteenth Amendments are often linked together because the Fourteenth applies the principles of the Fifth directly to the states themselves. The Fifth Amendment guarantees the right to due process, which includes such things as habeas corpus (the ability to have legal counsel, to call your case before the court, to challenge the Constitutionality of your detention, to bring new evidence to light following a court decision and to appeal court decisions that you feel are unfair or are cruel and unusual), the right to counsel, the right to a speedy and public trial, the right against self-incrimination.

Regardless of the status of someone's citizenship in this country, if they are under U.S. jurisdiction, they are entitled to the Constitutional protections guaranteed to them, including due process of law. The right to due process components such as habeas corpus, which is an individual's greatest safeguard against arbitrary imprisonment and was called by Justice Brennan "one of the great landmarks in the history of liberty", are extremely important to the continued success of this country's legal system. If the rights given by the Constitution even to those who are not citizens are taken away, where will that then lead?

I'm sure some of the things I post must seem like Science Fiction, or, that I just 'dreamed it up.' But, I swear these are real events in Springerville, AZ.

"The Neighbor" has outdone himself this time; he has had surveillance cameras installed on the neighbors' houses now too. And some of you commenter's had the nerve to call me paranoid. What is he watching you may ask? For one thing; ME. The other thing he's watching, that is almost as important is his so-called manhood :)

Yup, I think he actually believes that his precious survey marker represents his manhood. If it does, poor 'little' thing :)

He also believes that any time I have something on my property he doesn't especially like all he has to do is move the survey marker over, past whatever it is he dislikes, and then remove my property. After all, it is now on his side of the marker. I have never seen anyone so sickly obsessed with an 'object!' 

If I had the money he has, and uses to purchase people that are useful to him, I would use it for something good; like starving and homeless children.  I certainly wouldn't be using it for his manner of evil and maleficence.  But, I am convinced that this is all he, and his wife, have in their lives, how pathetic.

After I retired from the Nursing profession I taught High School; English Lit., English, and US History.  I made sure that my students understood what their rights were; not many people do, unfortunately.  So, let me see, right now "The Stalker" and the Springerville Police are violating the following of my rights; Section 8 of the Human Rights Act, the Fourteenth Amendment, and my First Amendment rights.  What makes it so frustrating is that no one seems to be the least interested in doing anything about it.  Sometimes, I just can't believe how hateful the human race has become.

I'm not sure if it's because I wrote about the Springerville Police in my book, and their do-nothing practices, or if it's "The Neighbor's" unbelievable power and influence over the officials in this town, but, he has now managed to get the Arizona STATE Police involved in securing his 'territory' and the #^&*^%$#@^ fence!!!  The Springerville Police Department asked them to 'assist' with an issue "With you and your neighbor!"  As far as I know the issue is a civil one, however, the Springerville Police overstepped the boundaries last year when they allowed "The Neighbor" to do anything he wanted, with NO consequences.  Now, they want the State Police to bail them out.

Oh, before I forget; the Police report for "The Neighbor" coming onto my property, tearing away part of my fence, and then tearing down my No Trespass sign, on 8/5?  Effectively disappeared!!!

Check it out for yourself; contact the Eagar, AZ Police Department and ask them for a copy of report #08-1834 and see what they tell you:

(928) 333-4127

Regards,

Looking4trth

Capt. Jim Moran, commander of the St. Louis Police Department's Seventh District, said groups of young people appear to be meeting in the University City part of the Delmar Loop, and then walking east to the St. Louis side. By some estimates, the groups have reached about 100 people.

One prominent theory being raised is that the new Shrewsburry Metrolink line enables teenagers easier access to these neighborhoods, and that teenagers are taking the Metro in large groups and generally causing trouble. The Riverfront Times put forth this theory last week:

Ask virtually any store manager at the Saint Louis Galleria about shoplifting, and you'll invariably get two responses: One, it's out of control; and two, it's gotten exceedingly worse since August 2006, when MetroLink opened a stop just 500 yards from the high-end shopping center.

In the first six months of this year, Richmond Heights police made 345 arrests at the mall. That's nearly double the number of arrests made in all of 2005, before MetroLink opened its Shrewsbury line.

As a result of this, including several fights involving large groups of teenagers, the Galleria set in place a new curfew policy, effective in April 2007:

The so-called "Parental Guidance Required" policy, put in place in April 2007, prohibits anyone under age seventeen from entering the mall after 3 p.m. on weekends without an adult chaperone.

While this curfew policy has been successful at the Galleria, the byproduct has now shown itself in the form of violence further east in the Loop area, which also has a Metrolink stop:

Now — eighteen months after the Galleria curfew first went into effect — many store owners in University City speculate the ban has resulted in pushing troublemakers six stops up the MetroLink line to the Delmar Loop. Police in University City confirm that they first noticed large groups of teens congregating in the Loop in June 2007, two months after the Galleria imposed its curfew.

Recently, there have been several violent incidents reported at both the Forest Park and Delmar stations, including an incident involving a Loop restaurant:

Metro officials said they believe the attacks at the Forest Park and Delmar stations were related, but St. Louis police said they had not connected them. In the Delmar incident, two or three youths were attacked by a large group on the westbound platform at 11:36 p.m. Security tapes show a large group of youths surrounding the victims as they sat on a bench.

One week later, on Saturday night, an employee of the Pi pizza parlor at 6144 Delmar Boulevard was assaulted and robbed of his cell phone at a parking lot across the street near the Pageant theater, police said. Later, a group of youths attacked a restaurant employee near the outdoor dining area.

Which brings me to my title. The common enemy rule derived from the English common law doctrine that gave every citizen the right to deal with water on his or her land, since water was a common enemy to every person, and no liability would accrue for damage the water may cause on neighboring lands due to a property owners own remedial measures.

Since the Galleria has enacted its own 3 p.m. curfew, there have now been high-profile violent incidents further down the Metrolink line. Joe Edwards, founder of numerous Loop establishments-including Blueberry Hill, The Tivoli Theatre, The Pageant, and the under-construction Moonrise Hotel-and widely considered the unofficial mayor of the Loop, noted that Loop area businesses have concerns and are considering a 10p.m. curfew:

At a meeting of the Delmar Loop Business Association last week, Edwards asked store owners whether they would be in favor of a teenage curfew like the one at the Galleria and other malls. By a show of hands, Edwards says most people at the meeting voted in favor of a Friday- and Saturday-night curfew beginning at 10 p.m.

"Right now, we're just looking into it," says Edwards. "I'd hoped that it wouldn't come down to this. But then, after 10 p.m., there isn't really a lot for a juvenile to do in the Loop. And we're not going to let a few people ruin it for everybody."

St. Louis County does have a 12 a.m. weekend curfew, and recently police have pushed the large groups of teens east of Skinker, which is St. Louis City. Were Edwards and the DBA to enact a stronger curfew, then the teenagers would likely just find another place to hang out, possibly the Central West End or Laclede's Landing, hence my analogy to the common enemy rule. Currently, Metrolink, while disavowing any direct transportation connection with the violence, has pledged to increase security, and the St. Louis City Police presence has increased around the Delmar and Forest Park stations.

It is also necessary to acknowledge the racial undertones of the issue, since the Metrolink connects East St. Louis to both the Galleria and the Loop, and also because several of those arrested have been black:

One business owner willing to speak is Rubina Patton, proprietor of Diversity Gallery and the Culture Café situated directly across the street from The Pageant. An African American and a licensed clinical social worker, Patton says it pains her to know that many of the teenagers involved in the attacks in the Loop are black. "I don't care what color you are, you need to behave," she says. "I don't want this blown out of proportion, but it needs to be addressed."

Curfew laws are not a new concept, and they have generally withheld legal scrutiny so long as appropriate exceptions are in place to allow for religious and political expression, as well as other First Amendment concerns. Other Constitutional issues that have been raised have included the Fifth and Fourteenth amendments, and while most courts have not found a fundamental interest to be at play, others have struck down ordinances that are too vague or that are too strict:

Despite legislative approval, curfew ordinances have not fared well in Washington courts. In January 2003, the state supreme court in City of Sumner v. Walsh, 148 Wn.2d 490 (2003), invalidated Sumner's juvenile curfew and parental responsibility ordinance on the ground that it was unconstitutionally vague. The court held that Sumner's ordinance, which makes it unlawful for juveniles to "remain" in a public place during certain hours, was unconstitutionally vague because "it does not provide 'ascertainable standards for locating the line between innocent and unlawful behavior'." The court noted that "it may be difficult for a city to draft a curfew ordinance that is not unconstitutionally vague." The court did not address the other constitutional arguments raised by the plaintiff.

Nonetheless, so long as appropriate exceptions are clearly stated and the ordinance is not too broad or vague, they have largely been upheld. The real question, and not one that has been successfully answered yet in St. Louis, is how to provide a place to hangout for teenagers that can be safe and still allow a diverse demographic. Edwards noted in the RFT how much he enjoys the diversity in the Loop, and this is a true asset of the area. Unfortunately, if the teens there can't behave themselves, it may be one more place off-limits, pushing them to another area that may not be as welcoming as Edwards and the other businesses in the Loop generally seem to want to be.

On July 28, 1914, one month to the day after Archduke Franz Ferdinand of Austria and his wife were killed by a Serbian nationalist in Sarajevo, Austria-Hungary declares war on Serbia, effectively beginning the First World War.

Threatened by Serbian ambition in the tumultuous Balkans region of Europe, Austria-Hungary determined that the proper response to the assassinations was to prepare for a possible military invasion of Serbia. After securing the unconditional support of its powerful ally, Germany, Austria-Hungary presented Serbia with a rigid ultimatum on July 23, 1914, demanding, among other things, that all anti-Austrian propaganda within Serbia be suppressed, and that Austria-Hungary be allowed to conduct its own investigation into the archduke’s killing. Though Serbia effectively accepted all of Austria’s demands except for one, the Austrian government broke diplomatic relations with the other country on July 25 and went ahead with military preparedness measures. Meanwhile, alerted to the impending crisis, Russia—Serbia’s own mighty supporter in the Balkans—began its own initial steps towards military mobilization against Austria.

In the days following the Austrian break in relations with Serbia, the rest of Europe, including Russia’s allies, Britain and France, looked on with trepidation, fearing the imminent outbreak of a Balkans conflict that, if entered into by Russia, threatened to explode into a general European war. The British Foreign Office lobbied its counterparts in Berlin, Paris and Rome with the idea of an international convention aimed at moderating the conflict; the German government, however, was set against this notion, and advised Vienna to go ahead with its plans.

On July 28, 1914, after a decision reached conclusively the day before in response to pressure from Germany for quick action—apart from Kaiser Wilhelm II, who by some accounts still saw the possibility of a peaceful diplomatic resolution to the conflict, but was outmaneuvered by the more hawkish military and governmental leadership of Germany—Austria-Hungary declared war on Serbia. In response, Russia formally ordered mobilization in the four military districts facing Galicia, its common front with the Austro-Hungarian Empire. That night, Austrian artillery divisions initiated a brief, ineffectual bombardment of Belgrade across the Danube River.

“My darling one and beautiful, everything tends towards catastrophe and collapse,” British naval official Winston Churchill wrote to his wife at midnight on July 29. He was proven right over the next several days. On August 1, after its demands for Russia to halt mobilization met with defiance, Germany declared war on Russia. Russia’s ally, France, ordered its own general mobilization that same day, and on August 3, France and Germany declared war on each other. The German army’s planned invasion of neutral Belgium, announced on August 4, prompted Britain to declare war on Germany. Thus, in the summer of 1914, the major powers in the Western world—with the exception of the United States and Italy, both of which declared their neutrality, at least for the time being—flung themselves headlong into the First World War.

"Austria-Hungary declares war on Serbia." 2008. The History Channel website. 27 Jul 2008, 02:09 http://www.history.com/this-day-in-history.do?action=Article&id=828.

The Russians mobilized faster than the Germans had counted on, causing Germany to withdraw important elements of its army from attacking France thus dooming the attack on France to failure and forced the Germans into a two-front war.  World War I as it is now known destroyed the great monarchies of Europe, cost millions of lives, bankrupted empires and elevated Serbia to an almost mythical status of being the little nation that will eventually bring about Armageddon.

On This Day

1540 - King Henry VIII's chief minister, Thomas Cromwell, was executed. The same day, Henry married his fifth wife, Catherine Howard.

1794 - Maximilien Robespierre was sent to the guillotine. He was a leading figure in the French Revolution.

1821 - Peru declared its independence from Spain.

1866 - The metric system was legalized by the U.S. Congress for the standardization of weights and measures throughout the United States.

1868 - The Fourteenth Amendment to the U.S. Constitution was declared in effect. The amendment guaranteed due process of law.

1945 - A U.S. Army bomber crashed into the 79th floor of New York City's Empire State Building. 14 people were killed and 26 were injured.

1965 - U.S. President Johnson announced he was increasing the number of American troops in South Vietnam from 75,000 to 125,000.

1998 - Serbian military forces seized the Kosovo town of Malisevo.

1998 - Monica Lewinsky received blanket immunity from prosecution to testify before a grand jury about her relationship with U.S. President Clinton.

Bonus Marchers evicted by U.S. Army

During the Great Depression, President Herbert Hoover orders the U.S. Army under General Douglas MacArthur to evict by force the Bonus Marchers from the nation's capital.

Two months before, the so-called "Bonus Expeditionary Force," a group of some 1,000 World War I veterans seeking cash payments for their veterans' bonus certificates, had arrived in Washington, D.C. Most of the marchers were unemployed veterans in desperate financial straits. In June, other veteran groups spontaneously made their way to the nation's capital, swelling the Bonus Marchers to nearly 20,000 strong. Camping in vacant government buildings and in open fields made available by District of Columbia Police Chief Pelham D. Glassford, they demanded passage of the veterans' payment bill introduced by Representative Wright Patman.

While awaiting a vote on the issue, the veterans conducted themselves in an orderly and peaceful fashion, and on June 15 the Patman bill passed in the House of Representatives. However, two days later, its defeat in the Senate infuriated the marchers, who refused to return home. In an increasingly tense situation, the federal government provided money for the protesters' trip home, but 2,000 refused the offer and continued to protest. On July 28, President Herbert Hoover ordered the army to evict them forcibly. General MacArthur's men set their camps on fire, and the veterans were driven from the city. Hoover, increasingly regarded as insensitive to the needs of the nation's many poor, was much criticized by the public and press for the severity of his response.

"Bonus Marchers evicted by U.S. Army." 2008. The History Channel website. 27 Jul 2008, 02:25 http://www.history.com/this-day-in-history.do?action=Article&id=5215.

Worst modern earthquake

At 3:42 a.m., an earthquake measuring between 7.8 and 8.2 magnitude on the Richter scale flattens Tangshan, a Chinese industrial city with a population of about one million people. As almost everyone was asleep in their beds, instead of outside in the relative safety of the streets, the quake was especially costly in terms of human life. An estimated 242,000 people in Tangshan and surrounding areas were killed, making the earthquake one of the deadliest in recorded history, surpassed only by the 300,000 who died in the Calcutta earthquake in 1737, and the 830,000 thought to have perished in China's Shaanxi province in 1556.

The Chinese government was ill-prepared for a disaster of this scale. The day following the quake, helicopters and planes began dropping food and medicine into the city. Some 100,000 soldiers of the People's Liberation Army were ordered to Tangshan, and many had to march on foot from Jinzhou, a distance of more than 180 miles. About 30,000 medical personnel were called in, along with 30,000 construction workers. The Chinese government, boasting self-sufficiency, refused all offers of foreign relief aid. In the crucial first week after the crisis, many died from lack of medical care. Troops and relief workers lacked the kind of heavy rescue training necessary to efficiently pull survivors from the rubble. Looting was also epidemic. More than 160,000 families were left homeless, and more than 4,000 children were orphaned.

Tangshan was eventually rebuilt with adequate earthquake precautions. Today, nearly two million people live there. There is speculation that the death toll from the 1976 quake was much higher than the official Chinese government figure of 242,000. Some Chinese sources have spoken privately of more than 500,000 deaths.

"Worst modern earthquake." 2008. The History Channel website. 27 Jul 2008, 02:43 http://www.history.com/this-day-in-history.do?action=Article&id=6972.

Kevin Carey, research and policy manager of Education Sector, an independent think tank in Washington, DC, wrote the folloiwng article "Too Weird for the Wire: How black Baltimore drug dealers are using white supremacist legal theories to confound the Feds" in the Washington Monthly, published at:

http://www.washingtonmonthly.com:80/features/2008/0805.carey.html

On November 16, 2005, Willie “Bo” Mitchell and three co-defendants—Shelton “Little Rock” Harris, Shelly “Wayne” Martin, and Shawn Earl Gardner— appeared for a hearing in the modern federal courthouse in downtown Baltimore, Maryland. The four African American men were facing federal charges of racketeering, weapons possession, drug dealing, and five counts of first-degree murder. For nearly two years the prosecutors had been methodically building their case, with the aim of putting the defendants to death. In Baltimore, which has a murder rate eight times higher than that of New York City, such cases are depressingly commonplace.

A few minutes after 10 a.m., United States District Court Judge Andre M. Davis took his seat and began his introductory remarks. Suddenly, the leader of the defendants, Willie Mitchell, a short, unremarkable looking twenty-eight-yearold with close-cropped hair, leapt from his chair, grabbed a microphone, and launched into a bizarre soliloquy.

“I am not a defendant,” Mitchell declared. “I do not have attorneys.” The court “lacks territorial jurisdiction over me,” he argued, to the amazement of his lawyers. To support these contentions, he cited decades-old acts of Congress involving the abandonment of the gold standard and the creation of the Federal Reserve. Judge Davis, a Baltimore-born African American in his late fifties, tried to interrupt. “I object,” Mitchell repeated robotically. Shelly Martin and Shelton Harris followed Mitchell to the microphone, giving the same speech verbatim. Their attorneys tried to intervene, but when Harris’s lawyer leaned over to speak to him, Harris shoved him away.

Judge Davis ordered the three defendants to be removed from the court, and turned to Gardner, who had, until then, remained quiet. But Gardner, too, intoned the same strange speech. “I am Shawn Earl Gardner, live man, flesh and blood,” he proclaimed. Every time the judge referred to him as “the defendant” or “Mr. Gardner,” Gardner automatically interrupted: “My name is Shawn Earl Gardner, sir.” Davis tried to explain to Gardner that his behavior was putting his chances of acquittal or leniency at risk. “Don’t throw your life away,” Davis pleaded. But Gardner wouldn’t stop. Judge Davis concluded the hearing, determined to find out what was going on.

As it turned out, he wasn’t alone. In the previous year, nearly twenty defendants in other Baltimore cases had begun adopting what lawyers in the federal courthouse came to call “the flesh-and-blood defense.” The defense, such as it is, boils down to this: As officers of the court, all defense lawyers are really on the government’s side, having sworn an oath to uphold a vast, century-old conspiracy to conceal the fact that most aspects of the federal government are illegitimate, including the courts, which have no constitutional authority to bring people to trial. The defendants also believed that a legal distinction could be drawn between their name as written on their indictment and their true identity as a “flesh and blood man.”

Judge Davis and his law clerk pored over the case files, which led them to a series of strange Web sites. The fleshand- blood defense, they discovered, came from a place far from Baltimore, from people as different from Willie Mitchell as people could possibly be. Its antecedents stretched back decades, involving religious zealots, gun nuts, tax protestors, and violent separatists driven by theories that had fueled delusions of Aryan supremacy and race war in gun-loaded compounds in the wilds of Montana and Idaho. Although Mitchell and his peers didn’t know it, they were inheriting the intellectual legacy of white supremacists who believe that America was irrevocably broken when the 14th Amendment provided equal rights to former slaves. It was the ideology that inspired the Oklahoma City bombing, the biggest act of domestic terrorism in the nation’s history, and now, a decade later, it had somehow sprouted in the crime-ridden ghettos of Baltimore.

he series of events that led to the prosecution of Willie Mitchell et al are as convoluted, tragic and intermittently absurd as an episode of HBO’s acclaimed Baltimore crime drama, The Wire. Mitchell and company came of age on the streets of West Baltimore, a few miles and a world away from the rejuvenated inner harbor and the tourist attractions near the federal courthouse. According to prosecutors, the group began selling drugs together as teenagers in the mid-1990s, driving up I-95 to New York City, buying half kilos of cocaine in upper Manhattan and cooking it into crack to sell back home. They added heroin to their repertoire a few years later, as well as robbing and killing other drug dealers. By 2002, they were firmly established in what passes as normal enterprise in a hollowed-out economy like Baltimore, where the drug trade often provides more opportunity than legitimate work and the bedrock institutions of family and school have crumbled. They had children out of wedlock with multiple women. They were occasionally arrested, although they never served much time. It was an insular culture where a ruthless prohibition against “snitching” to the police was often more powerful than any law. Even as cities like New York saw the murder rate decline dramatically, drug killings in Baltimore continued at a steady clip.

According to the indictment, the end began on February 18, 2002, in a downtown Baltimore nightclub called Hammerjacks, where Mitchell got into a dispute and stabbed a fellow drug dealer in the back, seriously wounding him. If Mitchell had hoped to get away with this attempted murder, he was swiftly and brutally set straight by the drug dealer’s associates. When police on patrol found Mitchell later that evening, he was on a sidewalk with several men jumping on his head. Mitchell survived the assault, but he remained in serious trouble. The police had issued a warrant for his arrest; more ominously, his enemies had placed a $10,000 contract on his head.

Mitchell probably didn’t know exactly what his enemies had in mind, but he was seasoned enough to realize that they wanted him killed. Ten days after the club incident, prosecutors allege, he made a phone call to an associate of the men who had beaten him up. The associate was a drug dealer named Oliver “Woody” McCaffity. Mitchell proposed that the two men meet that evening for a drug deal.

Neither man came to the meeting alone. Mitchell brought a friend, Shelton Harris. McCaffity brought his sometime girlfriend, Lisa Brown. Brown was a pastor’s daughter, a computer systems analyst and mother of three. Her parents told reporters that she had broken up with McCaffity after learning of his involvement with drugs. But when he called and invited her to the movies, she decided to go along.

The two parties drove to the Park Heights section of Northwest Baltimore. It was a quick meeting. Mitchell and Harris climbed into the backseat of McCaffity’s Infiniti Q-45. Then they shot McCaffity through the head and fired through Brown’s raised right hand into her left temple, where police later found a .357 caliber bullet. The bodies of McCaffity and Brown were left in the car, which rolled downhill and rammed into a nearby tree at the dead-end of the street. Police found it two hours later. A palm print on the car window was later matched to Harris, and McCaffity’s cell phone records revealed calls that night to Mitchell’s phone. Mitchell, suspecting that McCaffity’s associates were going to try to kill him, had apparently decided to kill first. The murder would probably not have attracted much attention, except for the fact that McCaffity’s Infiniti was owned by Hasim Rahman, the recently dethroned heavyweight boxing champion of the world. McCaffity was a friend and business associate of Rahman, causing the ex-champ to quickly call a press conference denying any involvement in the crimes. (Police have never alleged otherwise.)

If the killing of McCaffity and Brown had been a successful preemptive strike, Mitchell was also prepared to kill for more mundane reasons. On March 24, a few weeks after the Mc- Caffity murder, Mitchell allegedly called a former high school classmate named Darryl Wyche and offered to buy some heroin and cocaine from him. Darryl, excited by the prospect of a big sale, agreed. The two made plans to meet in a nearby industrial park around midnight.

Again, neither party came alone. Wyche brought his younger brother Tony, who had reluctantly agreed to drive. Mitchell brought Harris again, as well as two more friends: Shelly Martin and Shawn Gardner.

The Wyche brothers opened the back door of their Honda to let Mitchell and his men into the back seat. Then each received a bullet in the side of the head. The next morning the police found the bodies, seat belts still on. (Mitchell appears to have seen Wyche as an easy source of drugs and cash.)

But Mitchell’s luck was about to end. When Baltimore homicide detectives found the bodies of the Wyche brothers, they assumed they had come across another hard-to-solve drug killing. Then they received an unexpected phone call. It was from Darryl Wyche’s mother-in-law, who reported finding a strange message on her phone. Recorded at 12:43 a.m., the message was four and a half minutes of a group of men with names like “Wayne” and “Shorty” saying things like “Bup-bup-bup-bup-bup, yo, they both fucked.” The call had come from the cellphone of Darryl Wyche.

Wyche’s family and the police soon figured out what had happened: One of the murderers had stolen Darryl Wyche’s phone and forgotten to turn it off. While the killers were driving away, one of them had accidentally pressed the phone’s speed dial button, calling Darryl’s mother-in-law and producing a most unusual piece of evidence: a voicemail confession. With considerable understatement, a lieutenant in the city homicide unit reflected on his good fortune to the Baltimore Sun. “We got lucky,” he said. Willie Mitchell and Shelly Martin were soon rounded up and put in jail.

What would become the fifth and final murder charge in the case of Willie Mitchell and his cohorts took place two months later. This time, only Mitchell’s friend Shawn Gardner was directly involved. It began with a man named Darius Spence, who had found out that his wife, Tanya, was cheating on him with a local drug dealer everyone called “Momma.”

Spence decided to have Momma beaten up severely. To accomplish this, he negotiated with another drug dealer named Willie Montgomery. Would Montgomery be willing to beat up Momma in exchange for money? But Montgomery had another proposition altogether. Beating Momma up didn’t make sense, Montgomery argued, because then Momma would undoubtedly try to kill Montgomery. It was better just to kill Momma outright, and for five thousand dollars, Montgomery would be glad to do the job. Spence said he’d think it over.

Unfortunately for Darius Spence, Montgomery wasn’t interested in waiting around for an answer. Instead, sensing opportunity, Montgomery decided to tell Momma about the hit. If I turn down the deal, Montgomery explained, then Spence will probably just hire someone else to kill you. Therefore, Montgomery reasoned, you should hire me to kill Spence first. Momma was persuaded. (As Montgomery later explained to the prosecutors, “I guess he like that idea better than Darius Spence’s idea.”)

To execute the hit on Spence, Montgomery recruited two associates, one of whom was Shawn Gardner. For the next two months, the three men staked out Spence’s apartment. The plan was for Shawn Gardner and his associate to invade from the basement and carry out the killing, and then run to a nearby getaway car, which was to be driven by Montgomery. Special care was to be taken not to harm Tanya, and they would cover her eyes with duct tape to prevent her from identifying them. Still, Montgomery warned Momma that he couldn’t guarantee Tanya’s safety. “If it’s up to me, she won’t be hurt,” Montgomery told Momma, “but some things could go wrong.” Momma’s reply was to the point: “Do what you do.”

On June 7, 2002, the three men drove to the Spence apartment, a worn red brick building at the end of a cul-de-sac a few miles from Baltimore city. But the hit didn’t go as planned. Darius Spence wasn’t in the apartment, and they didn’t manage to blindfold Tanya. As children played outside the Spence apartment, Tanya burst through the kitchen door on the third floor, screaming, “No! No!” Lifting one leg over the balcony, she tried to climb down to the floor below but lost her grip and fell fifteen feet to the ground, landing a few feet from the children. Gasping for breath, she motioned for them to run away before crawling under the first floor balcony. Moments later, the two killers emerged from the Spence apartment, ran down the steps and stopped a few feet from Tanya, now lying in the fetal position in the dirt and begging for her life. One pulled out a large caliber revolver and fired two shots into Tanya’s chest as the children watched. Then both men ran away.

Unfortunately for the killers, Montgomery wasn’t where they thought he’d be. Somehow the meeting place had gotten confused, and the getaway failed. Police quickly apprehended Shawn Gardner and his associate. Eventually, the law caught up to Montgomery, too.

ardner was tried, convicted, and sentenced in state court to life in prison without the possibility of parole for the murder of Tanya Spence. Meanwhile, Willie Mitchell and Shelly Martin were charged by the state with the Wyche brothers’ killings and sat in prison for the next year and a half as police and prosecutors assembled their case.

Then, on January 22, 2004—nearly two years after the first four murders—the word came down from the office of U.S. Attorney Thomas DiBiagio: the Willie Mitchell case was going federal, and the government was seeking the death penalty. The Justice Department, DiBiagio explained, was going after “individuals responsible for making life hell in Baltimore.”

For Mitchell and company, this was bad news. Instead of jurors selected from the city pool, Mitchell would likely be judged by an all-white panel of citizens from places like Maryland’s westernmost rural counties or the far reaches of the Eastern Shore. He would face better-funded prosecutors, and was far more likely to get the death penalty. Maryland has only executed five people in the last thirty years, but in 2005, then-Attorney General John Ashcroft was aggressively seeking death sentences. In fact, the Justice Department was even retrying cases in order to win death penalties for crimes like the Spence murder, for which Shawn Gardner was already serving life without parole.

DiBiagio’s office also added a raft of conspiracy charges to the indictment, filed under the federal Racketeering Influenced and Corrupt Organizations (RICO) Act. By alleging that the defendants were part of an organized conspiracy— the so-called “Willie Mitchell organization”—prosecutors could hold all four defendants responsible for any of the crimes the others had committed. That’s why Shelton Harris, who wasn’t originally arrested for the Wyche or the McCaffity and Brown murders, was pulled off the street and charged with the full slate of crimes. It’s also why Mitchell and Harris were charged with the Spence murder, although they were already in jail when Shawn Gardner committed it. RICO is normally applied to members of the mafia and organized crime, and its use sent a clear message: the government was coming at Mitchell and company with everything it had.

The prosecutors bolstered the conspiracy argument by noting that, unlike most Baltimore drug dealers, Mitchell and company had incorporated a legal entity for which they all worked and allegedly funneled proceeds of their drug business into: “Shake Down Entertainment, Ltd.” The group promoted rap CDs and concerts through the company, which even had its own record label, “Shystyville.” Soon, Shystyville CDs with titles like “Pure Shit” became evidence of not just the conspiracy but the crimes themselves, with prosecutors entering into the record lyrics like these:

I watch ya brains fly all over on the bitch next to you
Homeboy it’s up to you I could put this pup to you
Then to pumpin’ you up like a innertube
Send shots that’ll pump up the end of you
Leave you all fat and bloated you know I keep
the Mac loaded then I like ta clack rollin’
That’s why Bo and Weez on lock now and every day on lock down
Niggas getting shot down for runnin’ they mouth clown
Tell me how it feels with a gun in ya mouth now

Prosecutors alleged that the “bitch next to you” was Lisa Brown, who was sitting beside Oliver McCaffity when he was shot through the head, that a “pup” is slang for the largecaliber revolver used in the killing, that the “Bo” on “lock now” was the imprisoned Willie “Bo” Mitchell, and that the reference to “Niggas getting shot for runnin’ they mouth” amounted to witness intimidation. Faced with the prospect of an all-white jury hearing this music in the courtroom, the defense lawyers objected on the grounds that lots of songs have lyrics that “proudly refer to violent retaliation,” offering by way of example country star Toby Keith’s “Courtesy of the Red, White and Blue (The Angry American).”

Nearly two years passed. The wheels of justice were turning, slowly but surely. Then came the memorable hearing in which the defendants debuted the flesh-and-blood defense. After that, everything changed.

 month after the hearing, Judge Davis took the unusual step of issuing a written opinion denying all of the defendant’s “unusual—if not bizarre” arguments. “Perhaps they would even be humorous,” Davis wrote, “were the stakes not so high … It is truly ironic that four African- American defendants here apparently rely on an ideology derived from a famously discredited notion: the illegitimacy of the Fourteenth Amendment.” One can understand his incredulity that four Baltimore drug dealers might invoke a racist argument that dates back to the nineteenth century. But as it turns out, that’s when the seeds of the flesh-and-blood defense were sown.

In 1878, southern Democrats pushed legislation through Congress limiting the ability of the federal government to marshal troops on U.S. soil. Known as Posse Comitatus, (Latin for “power of the county”) the law’s authors hoped to constrain the government’s ability to protect black southerners from violence and discrimination. The act symbolically marked the end of Reconstruction and the beginning of Jim Crow.

For the next eight decades, black Americans lived under the yoke of institutional racism. But by the late 1950s, the civil rights movement was growing in strength. In 1957, President Eisenhower sent 1,200 troops from the 101st Airborne Division to Little Rock, Arkansas, so that nine black students could safely enter a previously all-white high school. The landmark Civil Rights Act followed in 1964.

These developments horrified one William Gale, a World War II veteran, insurance salesman, self-styled minister of racist Christian Identity theology, and raving anti-Semite. In 1971, he launched a movement whose impact would reverberate through the radical fringes of American society for decades to come. He called it Posse Comitatus, named for the 1878 law he believed Eisenhower had violated by sending the troops to Little Rock. In a series of tapes and self-published pamphlets, Gale explained that county sheriffs were the supreme legal law enforcement officers in the land, and that county residents had the right to form a posse to enforce the Constitution—however they, as “sovereign citizens,” chose to interpret it. Public officials who interfered, instructed Gale, should be “hung by the neck” at high noon.

Gale’s racist beliefs were hardly unique. His singular innovation was to devise a “legal” philosophy that was enormously appealing to disaffected, alienated citizens. It was a promise of power, a means of asserting that they were the true inheritors of the founding fathers’ ideal, a dream they believed had been corrupted by a vast conspiracy that only they could see. Gale’s ideas gave people on the paranoid edge of society a collective identity. It told them what they desperately wanted to hear: that the federal government was illegitimate, and that the legal weapons the state used to oppress them could be turned against the state.

Soon, Posses were sprouting across the country, attracting veterans of the 1960s-era tax protest movement, Second Amendment absolutists, Christian Identity adherents, and ardent anti-communists who had abandoned the John Birch Society because they felt the organization wasn’t extreme enough. Local groups would meet to share literature, listen to tapes of Gale’s sermons, and discuss preparations for the approaching End Times. This extremist stew produced exotic amalgamations of paranoia, such as when Posse members would explain the need for local militias to stockpile weapons in order to defend white Christians from blacks in the coming race war sparked by the inevitable economic collapse caused by the income tax and a cabal of international Jewish bankers bent on global dominance through one world government, for Satan.

While local Posses would periodically confront law enforcement officials in the 1970s, (usually in property disputes), they were often incompetent, and few people were hurt. But things took a serious turn in 1978, when thousands of farmers rallied in Washington D.C. seeking relief from low commodity prices, high interest rates, and farm debt. When Congressional relief attempts failed, some farmers became susceptible to peddlers of the Posse ideology, which preached that the farm crisis had been brought on by the international Jewish banking conspiracy, abandonment of the gold standard and a malevolent Federal Reserve.

By 1982, Bill Gale had flown to Kansas to conduct paramilitary training and indoctrination for splinter groups of disaffected farmers. At night, a country music station in Dodge City broadcast tapes of Gale’s sermons. “You’re either going to get back to the Constitution of the United States in your government,” he intoned, “or officials are gonna hang by the neck until they’re dead … Arise and fight! If a Jew comes near you, run a sword through him.” As Posse ideology rippled across the distressed farm belt, violence followed. Several deadly confrontations between Posse adherents and law enforcement made national headlines; Geraldo Rivera descended on Nebraska to document the “Seeds of Hate” in America’s heartland. By 1987, Gale’s rhetoric had escalated further. He told his followers that “You’ve got an enemy government running around … its source and its location is Washington, D.C., and the federal buildings they’ve built with your tax money all over the cities in this land.”

Hucksters and charlatans prowled the Midwest as the farm crisis deepened, selling desperate farmers expensive seminars and prepackaged legal defenses “guaranteed” to cancel debts and forestall foreclosure. Since the gold standard had been abandoned in 1933, they argued, money had no inherent value, and so neither did their debts. All they had to do, farmers were told, was opt out of the system by sending a letter to the appropriate authorities renouncing their driver’s license, birth certificate, and social security number. That number was allegedly tied to a secret government account held in a secure subterranean facility in lower Manhattan, where citizens are used as collateral against international debts issued by the Fed and everyone’s name is on a master list, spelled in capital letters—the very same capital letters used in the official court documents detailing foreclosure and other actions against them. The capital letter name was nothing but an artificial construct, they were told, a legal “straw man.” It wasn’t them—natural, live, flesh and blood men.

Bill Gale died on April 28, 1988, three months after being sentenced in federal court for conspiracy, tax crimes, and mailing death threats to the Internal Revenue Service. By that time, the farm crisis had begun to recede. Posse ideology simmered for the next few years, morphing into the “Christian Patriot” movement, which sanded down some of the roughest racist and anti-Semitic edges while retaining the core beliefs of Constitutional fundamentalism. The patriots saw themselves as “sovereign citizens,” unlike the “federal citizens” who had been created by the 14th Amendment’s guarantee of equal protection under the law.

The deadly confrontations between federal agents and extremists at Ruby Ridge in 1992 and Waco, Texas in 1993 brought latent anger with the federal government back to a boil. The militia movement of the 1990s built on Posse tenets of county- based, self-organized paramilitary groups led by citizens expressing their basic Constitutional rights. Most groups stuck with conducting survivalist training camps and filing bogus liens against houses owned by local judges. But a few did much more.

In 1993, a Michigan farmer and survivalist named James Nichols was pulled over for speeding. Instead of simply paying the fine, he argued in court that his “sovereign citizen” status made him immune to prosecution. That same year, James’ brother Terry tried to pay off a $17,000 debt with a fake check issued by a radical “family farm preservation” group run by Posse adherents. Two years later, Terry Nichols helped to bring the Posse’s anti-government hatred to its ultimate fruition. On April 18, 1995, he and a friend named Timothy McVeigh loaded 108 fifty-pound bags of ammonium nitrate fertilizer into a Ryder truck. The next day, McVeigh bombed the Murrah federal building in Oklahoma City, killing 168 people on the second anniversary of Waco.

After the attack, the Feds began cracking down on white supremacist groups, including one called the “Montana Freemen,” who were, in the words of hate-group expert Daniel Levitas, “the direct ideological descendants of the Posse Comitatus.” (Levitas’ book, The Terrorist Next Door, contains the definitive account of Bill Gale and the Posse.) The Freemen were arrested in their isolated compound after a threemonth standoff with the FBI. At trial, they filed an array of bizarre documents citing the Fed, the gold standard, the 14th Amendment, and the Uniform Commercial Code, but to no avail. They were sent to the maximum security “Supermax” federal prison in Florence, Colorado, where they remain today.

But the appeal of their anti-government dogma didn’t disappear. The Freemen continued to attract sympathizers outside Supermax walls. Some collected the documents the Freemen filed during their trial and began offering them for sale via adver tisements in “America’s Bulletin,” a newsletter espousing Posse- style anti-government theories that is widely distributed throughout the prison system by white supremacists.

In October 2004, a prisoner named Michael Burpee arrived at the Maryland Correctional Adjustment Center in downtown Baltimore. Burpee had recently been convicted in Florida of trafficking PCP to Maryland. Hoping for leniency, he pled guilty, only to receive a twenty seven-year prison sentence dictated by harsh federal sentencing guidelines. Desperate for a way out, he began listening to someone—presumably a fellow prisoner—who explained how the charges were all part of a secret government conspiracy against him. Then Burpee was brought up on new federal drug charges in Maryland, and shipped north. He carried with him a pile of documents that were remarkably similar to those that had been filed by the Montana Freemen.

In Baltimore, Burpee found a group of inmates at the margins of society, people like Willie Mitchell and company who were staring at the full force of the federal government. As one defense attorney representing a flesh-and-blood defendant put it, they “saw a freight train coming and felt three feet tall.” Soon the unorthodox legal filings and courtroom outbursts began to multiply. It was, one public defender later explained, “like an infection that was invading our client population of pre-trial detainees.” Burpee appears to have been patient zero in the epidemic. For over a year, he harangued his lawyers and judge about the conspiracy and spread the word in the Baltimore lockup. Then, in a stroke of bad luck for the public defender’s office, the U.S. Attorney’s office decided to drop the charges against Burpee—perhaps reasoning that he wasn’t worth the hassle considering that he had already been sentenced to twenty-seven years. For Burpee’s peers, the decision imbued the flesh-and-blood defense with legitimacy and the hope of freedom.

Before long, the relatives of the defendants were scanning Web sites like www.redemptionservice.com, which offers maps showing how Satanic runes were secretly incorporated into the street plan of Washington, D.C., and a deluxe package of instructions for renouncing one’s social security number for only $3,900, payable by check or money order.

Like the Midwestern farmers before them, the Baltimore inmates were susceptible to the notion that the federal government was engaged in a massive, historic plot to deprive them of life, liberty, and property. Such suspicions are prevalent in certain pockets of the black community—that year, a study from the Rand Corporation found that over 25 percent of African Americans surveyed believed the AIDS virus was developed by the government, and 12 percent thought it was released into the population by the CIA. And black separatist groups like the Nation of Islam—also fond of conspiracy theories—have long cultivated members through the prison system; some of these groups have explicitly adopted the language of constitutional fundamentalists. Given these developments, Levitas told me, “I’m surprised this didn’t happen sooner.”

This, then, was how Willie Mitchell came to draw on the accumulated layers of three decades of right-wing paranoia and demand that his case be dismissed “in accord with … House Joint Resolution 192, and Public Law 73-10”—laws that involved the abandonment of the gold standard and the Federal Reserve. And it explained why Shawn Gardner kept insisting that he be addressed as “Shawn-Earl: Gardner,” rather than the capital-letter SHAWN GARDNER printed on the indictment: he thought that if he could convince the court to call him by his “natural” name, it would be tantamount to admitting that the charges had been filed against someone else.

On the morning of January 10, 2006, two months after the first flesh-and-blood hearing, Gardner returned to Judge Davis’s courtroom. Moments after Davis arrived, Gardner stood up. “I object,” he said, over and over, until Judge Davis had finally had enough. “Do you know what you’re doing?” he asked Gardner. “You are committing suicide in broad daylight. There are public suicides in this country far too often. People jump off the Golden Gate Bridge, the Brooklyn Bridge. People walk into their workplaces with a gun and put the gun up to their head and pull the trigger. People slash their wrists. I don’t want you to join that community, but that’s what you’re doing, sir.”

Gardner tried to argue that the court had no power over him under “common law.” “At common law,” Judge Davis replied, “you were property. You were bought and sold just like those Timberlands on your feet today can be bought and sold. That’s what your ancestors were, some of them, and that is what my ancestors were, some of them.”

“You have invoked ideas formulated and advanced by people who think less of you than they think of dirt,” Davis continued. “The extremists who have concocted these ideas that you are now advancing in this courtroom are laughing their heads off. You are giving them everything they ever wished for. They should be paying you to do what you are doing. They are going to make you the poster child for their movement. When you complete this suicide, they will honor you because you are doing their work, better and more effectively than any of them ever dreamed they could do. Some of them—” “I object,” said Gardner, interrupting. “The government wants to do the same thing anyway. So what’s the difference?”

Gardner, unrepentant, was escorted from the courtroom. And so the tenets of Posse Comitatus continued their long, strange journey, from the racist, hate-filled mind of William Gale to four black defendants on trial for their life in Baltimore federal court.

  little more than a year after the November 2005 hearing, the flesh-and-blood phenomenon took another twist. A key part of the conspiracy indictment against Mitchell et al was the allegation that the defendants acted together in pursuit of criminal goals. The seemingly choreographed speeches and the identical filings, all submitted on the same day and mailed by the same person, suggested that the four defendants were going to great lengths to coordinate their actions, despite being housed in separate prison facilities and having no obvious means of communication. Ergo, evidence that the conspiracy was continuing in jail. The U.S. Attorney’s office also added new charges of felony obstruction of justice, citing the disruptive nature of the fleshand- blood defense. The prosecutors weren’t just rejecting the defense as an argument for innocence. They were saying that it was, itself, a crime.

Undaunted, Mitchell and company continued making courtroom speeches and filing more nonsensical motions. One, for instance, claimed that Judge Davis’ court only had jurisdiction over crimes committed in federally owned “forts, magazines, arsenals, dockyards, and enclaves.”

None of these arguments had a prayer of overturning the charges. But they had an impact nonetheless. They made a long, complex trial longer and more complex still. Seeking the death penalty is rightfully arduous—it requires legal justifications for the penalty itself, enhanced scrutiny over jury selection, an additional penalty phase after a conviction, and so on. Conspiracy charges create further legal burdens. And the way Mitchell et al chose to deal with their attorneys— not dismissing them outright, but asking them to sign a peculiar “contract” that would essentially prohibit them from mounting a defense—created more problems. If the defendants weren’t dealt with carefully, they might be able to appeal by claiming that they had been inadequately represented. The last thing Judge Davis wanted was for an appellate court to throw out a verdict and send the case back to Baltimore to start all over again. According to a source close to the court, dealing with the flesh and blood defense has been “one of the greatest challenges Davis has faced in twenty years as a judge, by far.”

By mid-2007, the federal prosecutors were starting to run low on a vital resource: time. As years go by, memories fade, police officers retire or transfer, informants change their mind, and juries wonder, why, if the case is so straightforward, it took so long to make. On September 6, 2007, prosecutors withdrew the death penalty for all four defendants.

Nobody in the Baltimore federal courthouse is willing to state, or even speculate on the record, that Mitchell and his cohorts may have averted death with the flesh-and-blood defense. There are other possibilities involving evidence, witnesses, and Justice Department policy. But the elaborate processes of federal capital cases weren’t built to accommodate farcical pro se filings and challenges. Traffic offenses, tax cases—even farm foreclosures—are one thing. When the end goal is execution, even the most ludicrous defenses are taken seriously.

n January 8, 2008, the case of United States of America v. Willie Mitchell et al convened once again in the main courtroom of the federal courthouse. The lawyers arrived first, chatting in the manner of people who had spent nearly four years and counting on the odyssey of this case. The defendants came next. While Shawn Gardner wore the blue work shirt of a lifer in state prison, Willie Mitchell sported comfortable baggy jeans and a stylish black shirt. Mitchell sauntered to his table, and spied the lone spectator in the courtroom’s auditorium-style gallery of one hundred- plus seats, a slender black woman who looked to be in her late twenties. His eyes lit up as he smiled and mouthed “How are you?” “I’m good, I’m good” she murmured. “Your new lawyer—get his card!”

Judge Davis arrived last, emerging from a wooden door behind the bench, beneath oil portraits of judges from days gone by. The hearing will be short, he said; the purpose is to establish a schedule for future motions, and ultimately the trial. Davis and the lawyers spent the next twenty minutes trying find eight weeks of available courtroom time for ten busy lawyers plus the judge. Then, apropos of nothing, Shelton Harris stood up. “Good morning your honor,” he began. Davis saw where this was going and cut him off. “I haven’t recognized you yet, Mr. Harris. You’ll have time to talk later,” he said. “I accept your offer,” Harris replied softly, and sat down.

The scheduling discussion continued; Mitchell rested his head in his arms as though bored. Finally, Judge Davis allowed Harris to speak. Harris launched into the now familiar oration—”I request you, the judge, close the accounts…” He spoke rapidly in a low, gravelly voice, as if he’d worked hard to memorize the speech and didn’t want to leave anything out.

Harris finished, sat, and Judge Davis turned to the defendants. The speech you just gave has no legal meaning whatsoever, he said sternly. They were words in the English language, but they have no meaning as a matter of law. If, in future proceedings, you persist—even politely—in making these speeches, you face a severe risk of being expelled from the courtroom. The court also may conclude that you are waiving your right to appointed counsel, in which case you would have to represent yourself. That would be a sad day. “We are in recess,” Davis said. He turned back toward the door to leave.

Then several things happened at once. Shawn Gardner, handcuffed, slumped in the arms of the federal marshals, who seized him beneath his armpits and dragged him across the courtroom toward the door. Willie Mitchell raised his right hand to speak, intent on giving his version of Harris’ speech, but the marshals grabbed his arm and forced it down behind his back toward his left wrist, which was already cuffed. Mitchell struggled and yelled at his lawyer, “They got my arm in a chicken wing!” The marshals forcibly moved Martin and Harris toward the door. Judge Davis watched with consternation as they were dragged from his court.

Willie Mitchell and company won’t go on trial until September, if then, and they won’t face the death penalty, even though they probably deserve it if anyone does. But they will probably be convicted and spend the rest of their lives in federal prison, never to be heard from again, because in the end, the flesh-and-blood defense is no defense at all. The 14th Amendment didn’t revoke Shawn Gardner’s natural citizenship— it gave him protection under the law, and paved the way for another black man to judge his case. There’s no international cabal of Jewish bankers conspiring against him— one of his lawyers, a professor at Howard University Law School, is Jewish. The secret histories and grand conspiracies that have fueled decades of right-wing paranoia, morphing to accommodate one doomed cause after another until finding an unlikely temporary home in a Baltimore lockup, are lies and nothing more.

As the marshals shoved the four men toward the courtroom door, back to the prison they’ll never leave, they shook their heads and looked at each other smiling, as if to say right, right, isn’t it always just like this? One of them let out a chuckle that rose above the din. Judge Davis turned to the court reporter. “Let the record show,” he said, “that Mr. Harris is laughing.”

As Prof. Adler points out in his posts on Volokh (here and here), the real interesting aspect of this decision is that the Circuit divided 7-6, an unusually close vote, and created two dissenting opinions and one concurrence.

Prof. Somin agrees with the dissenters and Prof. Adler over here and outlines some additional constitutional considerations about the case.

Ed Whelan gives his take over at Bench Memos over here.

And Connecticut Employment Law Blog offers a sympathetic view of the case over here.

In response to my post yesterday about the U.S. Supreme Court’s welcome decision re-establishing the fundamental constitutional principle of habeas corpus against the Bush administration’s extraordinary challenges, some guy named Claude chimed-in to assert that the U.S. Constitution only applies to American citizens.

Ordinarily, I respond to readers’ comments as further comments in the thread to which they were originally posted. There are times like this, however, where the comments are so profoundly stupid and so characteristic of disturbing trends in public discourse that they must be addressed in a separate essay.

Where do idiots like Claude get the idea that the U.S. Constitution applies only to American citizens?

True, some of its rights – like voting and running for office – are reserved to citizens. But the only people I have ever hear argue that the constitutional due process rights do not apply to non-citizens are the putative “patriots” on the right who have never taken the time to read the Constitution, much less the cases that comprise the United States Supreme Court’s interpretation of it. Not even Justice Scalia would stand by you on this one, Claude.

Had Claude and his ilk actually read the Fifth and Fourteenth Amendments, they would have found that basic constitutional due process protections apply to all individuals, not just citizens. The Fifth Amendment, which defines due process rights vis-à-vis the federal government, expressly applies to all persons, not just to citizens:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Fourteenth Amendment, which extends due process and equal protection to circumscribe to the power of state governments, displays a crystal-clear distinction between the “privileges and immunities” attaching to citizenship and the broad constitutional rights enjoyed by “any person” within United States jurisdiction:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Both Claude and the Bush administration raise the territoriality argument – which asserts that since things like captivity in Guantanamo Bay, Cuba and American-directed torture in foreign countries (the heinous process of so-called “extraordinary rendition”) occur off U.S. soil, the U.S. Constitution does not apply. There are two ways of addressing this point. The first is with simple legal analysis, like that provided by the Court in yesterday's opinion:

[T]he Government’s view is that the Constitution had no effect there, at least as to noncitizens, because the United States disclaimed sovereignty in the formal sense of the term. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint.

Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not “absolute and unlimited” but are subject “to such restrictions as are expressed in the Constitution.” Murphy v. Ramsey, 114 U. S. 15, 44 (1885). Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court’s recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say “what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803).

These concerns have particular bearing upon the Suspension Clause question in the cases now before us, for the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain.

Boumediene v. Bush, 533 U.S. ___ (2008), Slip Opinion at 35-36.

The second, even simpler refutation of the territoriality argument is found in conscience and basic social vision. Ask yourself: do you want America to be the kind of country where the government can actively deny individuals their basic human rights simply because it has the wherewithal to do so abroad?

I find it astounding that the flag-waving (lapel-pin-wearing) jingoists of the right have such low aspirations for the country they purport to love. In truth, they seem to love nothing more than the comforts and privileges that attach to their citizenship; and few seem to have taken the time or made the effort to understand and appreciate the beautiful constitutional structure which helps to ensure them this way of life.

The United States of America is home to an increasingly litigious society. Lawsuits, and in some corners the lawyers who file them, are often seen in a negative light. No longer is the judicial system, and the use of it by American citizens, seen as the great equalizer between classes and the guarantor of equality and justice. Because it has been clogged with what is often referred to as frivolous, meaningless, or financially based lawsuits, its stature in our society has been diminished. With this seemingly constant flow of lawsuits swirling through our legal system, it’s sometimes hard for individuals to recognize, utilize, and benefit from the rights that have been afforded them as American citizens. Classroom teachers, as a smaller part of the overall education system in this country, are no different.

          The long held perception of classroom teachers’ rights as indistinguishable from the average American citizen may no longer be accurate. More and more teachers are finding themselves as the targets of litigation, be it community or school district generated. And more and more of this litigation directed at teachers centers around individual rights once thought sacrosanct, such as freedom of expression and dress and grooming. Where in the past it was perceived that teachers need not check their individual rights at the school house door, this perception may not be entirely based on reality anymore.

          In the same manner that other citizens of the United States have their speech protected, classroom teachers are afforded the same right within limits, under the First Amendment to the Constitution. The key part of this sentence being “within limits”. Free speech by classroom teachers is guided by the principal that such speech does not create a “material disruption” to the educational interest of the school district (Essex 2008). Just what constitutes material disruption is periodically up for debate, with the courts providing interpretations and resolutions. As an example, criticism of school officials and or policies has not been found to be a material disruption. On the other hand if those criticisms should be personal in nature or can be considered humiliating to the recipient, material disruption may apply. It may also apply if the teacher’s speech urges others to ignore said policies. Either way, a school district is required to show that a legitimate state interest is affected in order to restrict a teacher’s speech in any way. Some school districts have been successful in their efforts to restrict teacher  speech. The burden of proof lying with the schools, it is necessary to show that such  speech has undermined authority or created problems in the working environment. Yet, in the instances where school districts have outlined policies against the aforementioned types of speech, the courts have overturned them (Valente, W., Valente, C. 2001). Clearly, teacher expression, and the protection of it, is not a black and white matter. Seemingly, teacher freedom of expression rights are protected but are also subject to considerations regarding its impact on the school environment. Even with First Amendment protection, if a teacher’s overall job performance does not meet the school’s standard, then debatable speech may still lead to dismissal. A case that the United States Supreme Court recently declined hearing illustrates as much.

          Deborah A. Mayer was a teacher in Monroe County, Indiana who ran into trouble after discussing her views on protest in relation to the then impending United States invasion of Iraq. As part of a current events discussion Mayer responded to student inquiries by saying that she would participate in “peace marches” and that she thought it important to find peaceful solutions to problems before resorting to war. Parent complaints led to a discussion between Mayer and her principal which resulted in Mayer being barred from discussing peace and a traditional month-long celebration of peace being dropped. The school’s reasoning was that they are not in position to promote any views on foreign policy, and as a result, Mayer’s comments were inappropriate. Subsequently the school district declined to renew Mayer’s contract for the upcoming school year. With Mayer just completing her first year of teaching and thus still in a probationary period, the school district was well within their rights to do so. However, Mayer believed her dismissal stemmed from her utilizing her First Amendment protected right to free speech. Consequently, Mayer filed suit against the school district.

          The initial hearing found the school district victorious and the appeal filed by Mayer went to the school district as well. The appeals court stated that “The First Amendment does not entitle primary and secondary teachers, when conducting the education of captive audiences, to cover topics, or advocate viewpoints that depart from the curriculum adopted by the school system” (Walsh 2007). Evidently, according to this appellate court, Mayer’s speech was materially disruptive to the educational system in which she was employed. Also, because the speech itself veered away from the board approved curriculum, her speech that day was less than free or protected.One wonders if Mayer had been teaching a science lesson instead of  social studies and had prefaced her remarks with the indication that she was speaking as an individual citizen and not a teacher, that her speech might have fallen under First Amendment protection. If so, she might still be employed by the aforementioned school district today.

          Personal appearance issues, or issues of dress and grooming, have been fodder for litigation through the years as well. Not surprisingly school districts see teacher dress code regulations as a way to promote professionalism amongst staff and subsequently improve the classroom learning environment. Teachers, on the other hand, see such policies as an infringement upon their right of free expression. The courts have generally and  frequently been in favor of a school district’s right to govern dress and appearance so that the educational process avoids disruption. As long as such policies on dress and grooming connect themselves to a specific educational purpose (such as promoting the image of teachers as professionals), they have been largely free from judicial interference. When a policy governing such matters is found to be unrelated to the protection of the educational process, the courts have frequently not supported it. Similar to teacher expression, teacher dress and grooming is more gray than black and white due to the interpretation necessary in navigating the important issues surrounding them. Dress code policies, while reflecting an educational purpose, are also effected by community and societal standards. With the size of a country like the United States, and the widespread differences that such a country presents, finding one policy to govern the dress and grooming of any one field is extremely difficult, if not impossible. Which is why the district court system in this country, so much more apt to be in tune with the standards of the jurisdictions they serve, is a much better choice to make such decisions on a case by case basis than the utilization and reliance on a one-size fits all policy on dress and grooming.

          Not all litigation involving teacher appearance deals with the appropriateness of school district issued dress codes or policies. Some cases involve the material disruption that may or may not occur due to the dress and grooming of a specific teacher or teachers. One such case involved a Michigan high-school  teacher who frequently wore a shirt with an inflammatory message relating to a teacher’s union and school district disagreement. The teacher wore a t-shirt with the phrase “working without a contract” and at times, confronted other teachers for not doing so (Thompson, Hartmeister, and Mead 2007). It was the aforementioned confrontations, and not the message itself, that the court cited in its decision to stand with the school district on this matter. Once again the court cited the material disruption clause in stating that the confrontations caused by the speech on the shirt were disruptive to the school district’s task of delivering services to its community. Thus, the speech on that specific t-shirt was not covered by the First Amendment.

          In conclusion it can be said that teachers’ rights differ only slightly under the First Amendment than those of other American citizens. This minimal difference is due, says legal precedent, to the important and public nature of the position of teacher. Whereas other American citizens might find more leeway in the overall judgment of their speech, teachers are held to a higher standard due to the important societal role that they inhabit. Decades ago the courts consistently found in favor of teachers in regards to issues of expression (both speech and appearance). Recently (the past two decades), court decisions have gone in the opposite direction (Stader, Francis 2003) more frequently. It is because of this recent trend and the somewhat ambiguous nature of First Amendment protected expression, that teacher due diligence regarding these matters is more important than ever. School districts have solicitors and at times employ law firms to operate in their best interests. Teachers have union representation, but more often than not are the ones most interested in protecting themselves and their livelihood. With this in mind it is vitally important that teachers do not blindly believe in the blanket coverage of their speech and appearance under the First Amendment, but rather that they think long and hard about these matters before they act upon them.

You can find the source for this information at the following location:

http://www.worldnetdaily.com/index.php?fa=PAGE.view&pageId=64830

The article follows below:

Gov. Arnold: Let homeschooling continue
'State provides a broad statutory basis for education by parents in California'

Posted: May 20, 2008
10:16 pm Eastern

By Bob Unruh
© 2008 WorldNetDaily

Gov. Arnold Schwarzenegger

California Gov. Arnold Schwarzenegger and other officials have told an appeals court there's no need to dig into state constitutional issues regarding homeschooling since state laws already provide for that choice for parents.

The recommendations come in an amicus brief from California Attorney General Edmund G. Brown Jr. and others on behalf of the state and its governor.

A ruling from the Court of Appeal in the 2nd District, Division 3 in a dispute stemming from a juvenile case earlier had declared that the state constitution provided no right for parents to school their children at home, threatening the education choice for hundreds of thousands of families across the state.

WND broke the story in February when that ruling was released, but it later simply was dropped when the same panel of judges agreed to rehear the case.

The panel, in announcing the rehearing, invited several interested parties to submit amicus briefs of the question of the constitutionality of homeschooling in California, including the state and its education department as well as several teachers' unions.

Now the brief from Brown and Schwarzenegger said the court doesn't have to work that hard to make a decision.

"Here, this court need not reach any constitutional issues because this petition can be decided entirely on statutory grounds," the brief said. "The Education Code provides a broad statutory basis for homeschooling in California, setting forth three different avenues through which parents may legally homeschool their children."

The brief said the trial court in the case at hand "addressed only the constitutional issues, it never considered the preliminary question of whether the parents had met the statutory requirements for homeschooling under the Education Act."

"Accordingly, this court should remand to the trial court for proper consideration of that question in the first instance, and the constitutional issues should not be decided until such time that a resolution is 'absolutely required … to dispose of the matter,'" the recommendation said.

"The governor's brief supports the right of California parents to teach their children at home," stated the governor's press secretary, Aaron McLear. "It explains how the California Education Code already provides for homeschooling and urges the court to recognize and affirm this important right."

An earlier amicus brief had been filed by the Pacific Justice Institute on behalf of Sunland Christian Academy, the private school that offers the independent program in which the family's children were enrolled.

The father in the case is represented separately by the United States Justice Foundation and the Alliance Defense Fund, which have been working on the case's main arguments to the court. Since the case originated with a juvenile court proceeding, some of the arguments and briefs have remained confidential, because of the standard for handling juvenile proceedings. Other briefs have been released publicly.

"The Fifth, Ninth and Fourteenth Amendments to the United States Constitution, as well as Article 1, [paragraphs] 1 and 7, of the California Constitution, protect the fundamental due process and privacy liberties of Californians," according to the Pacific Justice brief, which cited court cases addressing the right to marry, establish a home and bring up children, the right for parents to educate children as they choose, the "private realm of family life," and others.

"The areas represent 'a realm of personal liberty' which the government may not enter," said the filing.

The governor's brief said the state provides options for students to be schooled at home with a licensed tutor or through a school independent study program. The third option is for parents, who are "persons capable of teaching" and have met the state records requirements, to teach their children at home.

The original opinion, later dropped, was written by Appeals Court Judge H. Walt Croskey and said: "We find no reason to strike down the Legislature's evaluation of what constitutes an adequate education scheme sufficient to promote the 'general diffusion of knowledge and intelligence. … We agree … 'the educational program of the State of California was designed to promote the general welfare of all the people and was not designed to accommodate the personal ideas of any individual in the field of education.'"

Homeschool advocates immediately expressed concern the original ruling would leave parents who educate their children at home liable criminally as well as open to civil charges for child neglect that could create the potential for fines, court-ordered counseling or even loss of custody.

Also filing an amicus brief – this one on behalf of members of Congress – is Liberty Counsel.

The brief provides an overview of home education laws in all 50 states and the District of Columbia, and notes that as early as 1925, the U.S. Supreme Court recognized the rights of parents to direct the education of their children.

"The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only," the high court said.

Oral arguments are scheduled in June.

The original opinion arose from a dependency case brought in juvenile court. In the process, attorneys assigned by the court to the family's two younger children sought a court order for them to be enrolled in a public or qualifying private school.

The district court denied the request citing parental rights, but the appellate court overturned the decision and granted the attorneys' request. The appeals court concluded the parents held neither a statutory right nor a constitutional right to provide homeschooling to their own children.