U never sue an attorney, you file a suite against their insurance company which most do not know!
And like any other law, the three strikes your out apply,s to an attorney, after their insurance is sued three times, then their
(Legal malpractice insurance) is dropped, then you can sue an attorney and take the money from their own pocket!
occurs when a lawyer fails to render competent professional service to a client and the client is damages as a result of the failure. The three major theories of liability are negligence, breach of fiduciary duty, and breach of contract.
To prove malpractice, i.e., to establish your lawyer's liability, you must prove that your lawyer owed you a duty to represent you competently, that he or she made a mistake or otherwise breached the duty owed to you, and that your lawyer's mistake harmed you, causing you damages. Additionally, you must file your lawsuit within the statutory time period or "statute of limitations" established by state law for legal malpractice claims. Please read on to find a legal malpractice lawyer, attorney or access more information. Find a Legal Malpractice attorney in your area.
Legal Malpractice Articles
|State Specific Resources|
Before You Sue
If your lawyer didn't represent you properly, and you were harmed in the process, your lawyer might be liable to you for your loss. But before you pursue a lawsuit against your attorney, try these alternatives:
If none of these alternatives brings satisfaction, you may want to consider a legal malpractice claim against your attorney. This type of case is difficult to prove, so you'll want to thoroughly investigate your chances of success before proceeding.
Types of Legal Malpractice Claims
Every case is different, but legal malpractice claims usually fall under three categories:
Negligence happens when your attorney fails to use the skill and care normally expected of a competent attorney.
Examples of negligence include:
Most legal malpractice claims that end up in court are a result of lawyer negligence.
Breach of fiduciary duty usually occurs when your lawyer has a conflict of interest that harms you in some way. Examples of breach of fiduciary duty include:
Breach of contract cases are brought against lawyers who violate the terms of their specific agreement with their client. Some examples include:
Proving a Legal Malpractice Case!
To win a negligence case against a lawyer, you must prove:
Legal malpractice attorneys usually charge a contingency fee of between 40 and 50 percent of the amount you eventually receive. This is a higher contingency fee than other types of negligence cases, because the legal malpractice lawyer has to work harder at proving a legal malpractice case.
In order to prove legal malpractice, you must show that:
These things are difficult to prove. Also, most legal malpractice cases are tried in court rather than settled. This requires much more time and preparation from your legal malpractice lawyer.
Any legal malpractice lawyer considering taking your case will want to know whether your original lawyer had malpractice insurance to cover your losses. Your new attorney will balance whether your provable losses are high enough to risk investing the time and energy to take the matter to trial.The time limit for filing a legal malpractice case can be as short as one year. So contact a legal malpractice lawyer right away if you think you might have a case against your attorney
The recurrence history of legal-aid is they tell their clients (You) are being called on the witness stand at the probable cause hearing which is the most important hearing in your case which determines weather DCFS
(Department of child and family services) have legal evidence against you and weather they must produce this evidence or drop your case. And the mistake that legal-aid makes, is (not) calling their clients on the stand in order to appeases the judges! And the reason they give is, you have retained your visitation rights which has nothing to do with a probable cause hearing. This hearing has one purpose, to determine if the court has legal reason/actions to temporary give your parental custody right to the State pending further hearings.
As a last resort to ware you down (emotionally) and (mentally) so that you will walk away and drop the fight, they will grant you an appeal in a (State applets-Court) and then the next step is re-hearing in a (state Supreme Court) which is still on the (State level)
You can not win in a (State court level of law) You must take your case to a (Federal Court has a lawsuit) and you can sue every one personally involved in your case,
(No one has immunity) in this court!
Non-Lawyer pro se litigants not to be held to same standards as a practicing lawyer
Many pro se litigants will use this in their pleadings; "Pleadings in this
case are being filed by Plaintiff In Propria Persona, wherein pleadings are
to be considered without regard to technicalities. Propria, pleadings are
not to be held to the same high standards of perfection as practicing
lawyers. See Haines v. Kerner 92 Sct 594, also See Power 914 F2d 1459 (11th
Cir1990), also See Hulsey v. Ownes 63 F3d 354 (5th Cir 1995). also See In
Re: HALL v. BELLMON 935 F.2d 1106 (10th Cir. 1991)."
In Puckett v. Cox, it was held that a pro-se pleading requires less
stringent reading than one drafted by a lawyer (456 F2d 233 (1972 Sixth
Circuit USCA). Justice Black in Conley v. Gibson, 355 U.S. 41 at 48 (1957)
"The Federal Rules rejects the approach that pleading is a game of skill in
which one misstep by counsel may be decisive to the outcome and accept the
principle that the purpose of pleading is to facilitate a proper decision on
the merits." According to Rule 8(f) FRCP and the State Court rule which
holds that all pleadings shall be construed to do substantial justice."
Defense against dismissal of complaint under Rule 12-B
There is legal sufficiency to show Plaintiff is entitled to relief under his
Complaint. A Complaint should not be dismissed for failure to state a claim
unless it appears beyond a doubt that the Plaintiff can prove no set of
facts in support of his claim which would entitle him to relief. See Conley
v. Gibson, 355 U.S. 41, 45-46 (1957) also Neitzke v. Williams, 109 S. Ct.
1827, 1832 (1989). Rule 12(b)(6) does not countenance dismissals based on a
judge's disbelief of a complaint's factual allegations. In applying the
Conley standard, the Court will "accept the truth of the well-pleaded
factual allegations of the Complaint."
Civil Rights Vol 4, US Supreme Court Digest
Page 555 Judges not totally Immune
87 SCT 1213 Pierson v. Ray
94 SCT 1683 Scheur v. Rhodes
96 SCT 984 Imbler v. Pathtman
98 SCT 2018 Monell v. Social SVS
98 SCT 2894 Butz v. Economov
On Absolute Immunity for Judges
A complaint is actionable against Judges under Title 42 U.S.C. 1985 (3),
whose immunity does not extend to conspiracy under color of law. Section
1985(3) reaches both conspiracies under color of law and conspiracies
effectuated through purely private conduct.
On Judges violation of oath of office
Many judges have a total disregard for their oath of office under Title 28
Section 453, All judges take this oath of office swearing to uphold the U.S.
Arbitrary Exercise of Government Powers
Missouri v. Mackey, 127 US 205, 8 S Ct 1161
Minneapolis v. Herrick, 127 US 210, 8 S Ct 1176
Lepper v. Texas 139 US 462, 11 S Ct 577
Giozza v Tiernan, 148 US 657, 13 S Ct 721
Duncan v Missouri, 152 US 377, 14 S Ct 570
Pro Se litigants entitled to Fees:
Pro se litigants may be entitled to Attorney fees and costs under the Civil
Rights Attorney's Fee Award Act of 1976, 90 Stat. 2641, as amended 42 USC 1988
The Fifth Amendment, provides in pertinent part that "nor be deprived of
life, liberty, or property, without due process of law..." Due process is
denied when a meaningful hearing is denied as in this cause.
The Seventh Amendment, provides in pertinent part that "In suits at common
law, where the value in controversy shall exceed twenty dollars, the right
to trial by jury shall be preserved..." This language does not include a
single reference to "manipulation" of a jury by the Court in a conspiracy
with lawyers to design a verdict suitable to the Court through the use of
lawyer rules, judicial rules, court rules, or otherwise trumped-up legal
technicalities and instructions which effectively "handcuffs" the jury. All
of these activities are no more or less than a denial of the right to a jury
of peers with the constitutional authority to judge both the facts and law
in a case.
The Thirteenth Amendment, provides in pertinent part that "Neither slavery
nor involuntary servitude, except as a punishment for crime....., shall
exist within the United States, or any place subject to their jurisdiction".
These judges through their private conduct in conspiracy with the lawyer
defendants, caused the Court to effectuate this Plaintiff to "Compulsory
Involuntary Servitude", an act punishable under Title 18 1584 as a criminal act.
The Fourteenth Amendment Due Process Clause and Equal Protection clause
(Section 1), expressly declares 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..."
The Fourteenth Amendment, Section 3, provides in pertinent part that "No
person shall hold any office, civil or military, under the United States or
under any State.....who, having previously taken an oath,....as an executive
or judicial officer of any State to support the Constitution of the United
States, shall have engaged in insurrection or rebellion against the same...."
USC 14th Ammendment (Deprived of the use of property)
Tracy v. Ginzberg 205 US 170, 27 S Ct. 461
Wagner v Leser, 239 US 207, 36 S Ct 66
Fuentes v. Shevin 407 US 67, 92 S Ct 1983
Leis v Flynt, 439 US 438, 99 S Ct 698, 11 Ohio Ops 3rd 302
Kent.Dept. of Corrections v. Thompson, 490 US 454, 109 S Ct 1904
What constitutes property protected under constitution?
Slaughter-House Cases, 16 Wall 36
Buchanan v Warley, 245 US 60, 38 S Ct 16
Liggett Co. v Baldridge, 278 US 105, 49 S Ct 57
Board of Regents v Roth, 408 US 564, 92 S Ct 2701
On Due Process Violation 5th and 14th
Butler v. Perry, 240 US 328, 36 S Ct 288
Brinkerhoff- Faris Trust v Hill, 281 US 673, 50 S Ct 451
Curry v. McCanless, 307 US 357, 59 S Ct 900
*Rochin v California, 342 US 165, 72 S Ct 25, Alr2d 1396
*Ivanho Irrig. Dist. v. McCracken, 357 US 275, 78 S CT 1174
*Bartkus v Illinois, 359 US 121, 79 S Ct 676
*Gault 387 US 1, 87 S Ct 1428
*Wolff v McDonnell, 418 US 539, 94 S Ct 2963
**Bordenkircher v. Hayes, 434 US 357, 98 S Ct 663
**Rostker v. Goldberg, 453 US 57, 101 S Ct 2646
**States v. Goodwin 457 US 368, 102 S Ct 2485
**Colorado v. Connelly, 479 US 157, 107 S Ct 515
**DeShaney v. Winnebago, 489 US 189, 109 S Ct 998
**Collins v Harker, 112 S Ct. 1061
Jurisdiction of the case (Basic element of due process)
Powell v. Alabama, 287 US 45, 53 S Ct 55, 84 ALR 527
Sense of fairplay shocked is not due process (Congress Barred)
Galvan v Press, 347 US 522, 74 S Ct 737
Groban 352 US 330, 77 S Ct 510
Kinsella v United States, 361 US 234, 80 S Ct 297
Bodie v Conneticut, 401 US 371, 91 S Ct 780
Ross v Moffitt, 417 US 600, 94 S Ct 2437
United States v. Salerno, 481 US 739, 107 S Ct 2095
14th Ammendment is the due process denial right
Collins v. Harker 112 S Ct 1061
Hebert v Louisiana, 272 US 312, 47 S Ct 103
Georgia Power v Decatur, 281 US 505, 50 S Ct 369
Discrimination as Violation of Due Process (5th Ammendment)
Bowling v Sharpe, 347 US 497, 74 S Ct 693
Schneider v Rusk, 377 US 163, 84 S Ct 1187
Shipiro v Thompson 394 US 618, 89 S ct 1322
United States v Moreno, 413 US 528, 93 S Ct 2821
Johnson v Robinson 415 US 361, 94 S Ct 1160
Buckley v Valeo, 424 US 1, 96 S Ct 612
Mathews v De Castro, 429 US 181, 97 S Ct 431
Fullilove v Klutznick, 448 US 448, 100 S Ct 2758
Lyng v Castillo, 477 US 635, 106 S Ct 2727
Fourteenth Ammendment and 42 USCS 1983
Statutory requirement under color of law: Lugar v Edmondson Oil, 457 US 922, 102 S Ct 2744
Title 42 USC 1983 provides in relevant part that: "every person who, under
color of any statute, ordinance, regulation, custom, or usage, of any
State....subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the Constitution. ..shall
be liable to the party injured...."
A Title 42 1985 action which seeks compensatory and punitive damages in
conjunction with equitable relief as in this case is considered a legal
claim, entititling Plaintiff to a jury trial. See An-Ti v. Michigan
Technological Univ., 493 F. Supp. 1137.
Plaintiff alleges a "class based", invidiously discriminatory animus is
behind the conspirators' action as the Court records reflect. That the
actions were clearly a product of bias and prejudice of the Court. See
Griffen v. Breckridge, 403 U.S. 88, 102 (1971)
The U.S. Supreme Court acknowledged in Bray v. Alexandria Women's Health
Clinic 113 S.Ct.753 (1993) that the standard announced in Griffen was not
restricted to "race" discrimination. It is therefore reasonable to assume
that 1985 (3) may be used for "class-based" claims other than race which is
alleged in this case.
The defendant lawyers acting in conspiracy with state actors under color of
law have become state actors in this case. The U.S. Supreme Court has ruled
that "private parties", lawyers in this case, may be held to the same
standard of "state actors" where the final and decisive act was carried out
in conspiracy with a state actor or state official. See Dennis v. Sparks,
449 U.S. 24, 101 S.Ct., 183 also See Adickes v. S.H. Kress & Co., 398 U.S.
144, 90 S.Ct. 1598.
Plaintiff's Complaint is based in part on discrimination and political
affiliations by lawyers and lawyer-judges, under 42 USCA 1983 & 1985. See
reversal case Acevedo-Diaz v Aponte (1993, CA1 Puerto Rico) 1 F3d 62,
summary op at (CA1 Puerto Rico) 21 M.L.W. 3212, 14 R.I.L.W. 389.
Section 1985(3) under Title 42 reaches both conspiracies under color of law
and conspiracies effectuated through purely private conduct. In this case
Plaintiff has alleged a class-based, invidiously discriminatory animus is
behind the conspirators' action as the court records reflect. That
actionable cause is the treatment of a non-lawyer pro se litigant as a
distinct "class-based subject" of the Court, wherein denial of equal
protection of the laws and denial of due process was clearly the product of
bias and prejudice of the Court. See Griffen v. Breckenridge, 403 U.S. 88,
The U.S. Supreme Court acknowledged in Bray v. Alexandria Women's Health
Clinic 113 S.Ct. 753 (1993) that the standard announced in Griffen was not
restricted to "race" discrimination. It is therefore reasonable to assume
that 1985(3) may be used for "class-based" claims other than race as alleged
in this case. It is also important to note in Bray the U.S. Supreme Court's
interpretation of the requirement under 1985(3) that a private conspiracy be
one "for the purpose of depriving... any person or "class" of persons of the
equal protection of the laws, or of equal privileges and immunities under
the laws, which the Court said mandates "an intent to deprive persons of a
right guaranteed against private impairment.
The U.S. Supreme Court in Griffen emphasized 1985(3)
legislative history was directed to the prevention of deprivations which
shall attack the equality of rights of American citizens; that any violation
of the right, the animus and effect of which is to strike down the citizen,
to the end that he may not enjoy equality of rights as contrasted with his
and other citizens' rights, shall be within the scope of remedies... Id. at 100.
Supreme Court has ruled that "private parties" may be held to the same
standard of "state actors" in cases such as the instant cause where the
final and decisive act was carried out in conspiracy with a state official.
See Dennis v. Sparks, 449 U.S. 24, 101 S. Ct., 183 and Adickes v. S.H. Kress
& Co., 398 U.S. 144, 90 S. Ct. 1598.
It is proper for this District Court to take Jurisdiction of any civil
action authorized by law to be commenced by any person. See Title 28 Section
1343 (1)(2)(3)(4) .
Jurisdiction is proper under Title 28 Sections 1332, 1335, 1357, 1441 and 1603.
The First issue is "Convenience" and second issue is the "interest-of-
justice" standard under 28 USCA 1406.
The Complaint should not be dismissed unless it appears to a certainty that
Plaintiffs would be entitled to no relief under any state of facts that
could be proved in support of the claims. See Gomez v Toledo (1980, US) 64 L
Ed 2d 572, 100 S Ct 1920.
The allegations of a Complaint prepared by a state prisoner acting pro se
are generally taken as true for purposes of motion to dismiss. See Hughes v
Rowe (1980, US) 66 L Ed 2d 163, 101 S Ct 173.
The final judgement of this Court should be vacated under Rule 60(B). The
Court is requested to weigh the interest in substantial justice against the
simple need for preserving finality of the judgement. See Expenditures
Unlimited Aquatic Enterprises, Inc. v. Smithsonian Institute, 1974, 500 F.2d.
808, 163 U.S. App.D.C.140. See also Brown v. Clark Equipment Co., D.C. Mc.
1982, 961 F.R.D. 166.
Court -a judgement to dismiss because of some trumped up technicality giving
excuse to dismiss a non-lawyer pro se litigant's complaint with merit in a
lawyer dominated Court hearing. In support of Plaintiffs Motion to vacate
Judgement, the following cases are offered; Picking v. Pennsylvania Railway,
(151 F2d.240) Third Circuit Court of Appeals.
The ruling of the court in this case held; "Where a plaintiff pleads pro se
in a suit for protection of civil rights, the court should endeavor to
construe the Plaintiff's pleading without regard to technicalities." In
Walter Process Equipment v. Food Machinery 382 U.S. 172 (1965) it was held
that in a "motion to dismiss", the material allegations of the complaint are
taken as admitted."
Rico Case Law:
The defendants constitute an illegal enterprise in acts or threat of acts in
violation of Civil Rico Federal Racketeering Act USC 18, 1961-1963 et seq.
The following are particular violations:
18 USC 241: Conspiracy against Rights of Citizens:
18 USC 3: Accessory after the fact, knowing that an offense has been
committed against the United States, relieves, receives, comforts or assists
the offender in order to hinder or prevent his apprehension, trial or punishment.
18 USC 242: Deprivation of Rights color of law of rights protected under the
Constitution of the U.S.
18 USC 512: Tampering with a witness
18 USC 1341: Mail fraud
18 USC 1343: Wire fraud
18 USC 1503: Obstruction of justice
18 USC 1510: Obstructing of criminal investigation
18 USC 1513: Retaliating against a witness, victim or informant
18 USC 1951: Interference with interstate commerce
18 USC 1621: Perjury
18 USC 1001: Fraud
Continued statute of limitation in ongoing activity (conspiracy) (bankruptcy fraud)
Judicial Notice is discretionary. With Judicial Cognizance, the judge is BOUND to act:
See Black's Law, 6th Ed, pg 847
Judicial cognizance. Judicial notice or knowledge upon which a judge is
bound to act without having it proved in evidence.
Judicial notice. (pg. 849) The act by which a court, in conducting a trial,
or framing its decision, will, of its own motion or on request of a party,
and without the production of evidence, recognize the existence and truth of
certain facts, having a bearing on the controversy at bar, ....
Reasons to Vacate Void Judgments - Lack of Jurisdiction
(http://www.amatterofjustice.org/amoj/ library/0008reas ons.htm)
(http://www.amattero fjustice. org/amoj/ cases/d046469. pdf)
January 2, 2004 Void Judgments Understanding Void Judgments
Definition of Void Judgment: any judgment which a court renders while lacking jurisdiction, either of the subject matter or the parties.
* Wahl v. Round Valley Bank 38 Ariz , 411, 300 P. 955(1931),
* Tube City Mining & Millng Co. v. Otterson, 16 Ariz. 305, 146p 203(1914); and
* Millken v. Meyer, 311 U.S. 457, 61 S. CT. 339,85 L. Ed. 2d 278 (1940).
Subject matter jurisdiction can never be presumed, waived, or constructed,
even by mutual consent of the parties, and it has two parts:
(1) the statutory or common law authority for the court to hear the case, and
(2) the appearance and testimony of a competent fact witness - in other
words, sufficiency of pleadings.
When we examine a judgment, the following indices tell us whether a court
had subject matter jurisdiction. Successful litigants will know each and
every one of them by heart. Subject matter jurisdiction usually fails
because of one of these reasons:
(1) No petition in the record of the case, Brown v. VanKeuren,
340 Ill. 118,122 (1930).
(2) Defective petition filed, Same case as above.
(3) Fraud committed in the procurement of jurisdiction, Fredman
Brothers Furniture v. Dept. of Revenue, 109 Ill. 2d 202, 486 N.E. 2d
(4) Fraud upon the court, In re Village of Willowbrook, 37 Ill,
App. 3d 393(1962)
(5) Judge does not follow statutory procedure, Armstrong v.
Obucino, 300 Ill 140, 143 (1921)
(6) Unlawful activity of a judge, Code of Judicial Conduct.
(7) Violation of due process, Johnson v. Zerbst, 304 U.S. 458,
58 S.Ct. 1019(193 ; Pure Oil Co. v. City of Northlake , 10 Ill.2d 241, 245,
140 N.E. 2d 289 (1956); Hallberg v Goldblatt Bros., 363 Ill 25 (1936), ( If
the court exceeded it's statutory authority. Rosenstiel v. Rosenstiel, 278
F. Supp. 794 (S.D.N.Y. 1967)
(8) One or more actions violated 11 U.S.C. 362(a), in re
Garcia, 109 B.R. 335 (N.D> Illinois, 1989).
(9) No proper pleadings presented a justiciable issue to the
court, Ligon v. Williams, 264 Ill. App 3d 701, 637 N.E. 2d 633 (1st Dist.
(10) A complaint states no cognizable cause of action against that
party, Charles v. Gore, 248 Ill App. 3d 441, 618 N.E. 2d 554 (1st. Dist.
(11) A person/law firm prohibited by law to practice law in that
jurisdiction represented a litigant before the court.
(12) The judge engaged in bribery (the Alemann cases, Bracey v
Warden , U.S. Supreme Court No. 96-6133(June 9, 1997)
(13) No one properly issued a summons.
(14) No one made service of process pursuant to statute and Supreme
Courth Rules, Janove v. Bacon, 6 Ill. 2d 245, 249, 218 N.E. 2d 706, 708
(15) Someone did not comply with the rules of the Circuit court.
(16) Someone did not comply with the local rules of the special
court (one where the judge does not act impartially, Bracey v. Warden, U.S.
Supreme Court No. 96-6133(June 9, 1997)
(17) The statute is vague, People v. Williams, 638 N.E. 2d 207 (1st
(18) The movant did not give proper notice to all parties, Wilson v.
Moore, 13 Ill. App. 3d 632, 301 N.E. 2d 39 (1st Dist. (1973)
(19) A judge based an order/judgment on a void order/judgment,
Austin v. Smith, 312 F 2d 337, 343(1962);English v. English, 72 Ill. App. 3d
736, 393 N.E. 2d 18 (1st Dist. 1979) or
(20) Someone violated the public policy of the State of Illinois,
Martin-Tregona v Roderick, 29 Ill. App. 3d 553, 331 N.E. 2d 100 (1st Dist.
(21) A judge does not validly hold office because of the absence of
or a defect in one or more of the following:a. qualification as a candidate (typically include American
citizenship, bar membership, registered voter status, a number of years of
service as an attorney, filing of a financial statement that shows
compliance with law, not serving in any other branch of government),
b. appointment or election to office (illegal campaign contributions or
other illegal financial entanglements can disqualify),
c. acceptance of appointment or elected position (some never bother to
accept the appointment or elected position),
d. one or more loyalty oaths associated with qualification and service
(a typical judge must swear the following loyalty oaths, evidenced by the
signature of a person duly authorized to take acknowledgements):i. Elector's (voter registration) loyalty oath
ii. Bar member's oath
iii. Pre-appointment/election candidate's loyalty oath
iv. Candidate's oath
v. Public Officer's or Judge's loyalty oath
vi. Public employee's loyalty oath.
About Loyalty Oaths and Appointments
Many public employees have serious defects in their oath and appointment
documents, and many do not have those documents on record as required by
law. The wise litigant will obtain certified copies of all such documents
for all officers of the court (judges, clerk, prosecutors or opposing
counsel, and bailiffs), and move for the disqualification of any and all for
whom valid oath and appointment documents do not exist.
The judge validly holds office if and only if a copy of the judge's oath of
office exists, and you can rightly demand that the proper final oath sworn
or affirmed upon taking office situates in the judge's chambers. You can go
to his office and demand to see a copy of his oath of office at any time.
The federal laws covering judges and other public officials are to be found
at 5 U.S.C. 3331, 28 U.S.C. 543, and 5 U.S.C. 1983. States typically have
similar laws. A judge trespasses upon the court unless he complies with all
of the provisions of relevant law. Once a proven trespasser upon the court
(upon the law) not one of his judgments, pronouncements or orders have
validity. All constitute nullities and have void status.
Upon discovering such a trespass, you will face serious difficulty getting
the trespasser removed from office, and the fact that so many litigants give
up in the process explains why so many criminal trespassers still function
in public office.
Powe v. United States, 5 Cir., 1940, 109 F.2d 147, certiorari denied, 309 U.S. 679, 60 S.Ct. 717
I finally found it. It's quoted a bit different than the opinion quoted:
In Powe v. U.S. 109 F2d 147, 149 (1940) the court determined the term
`citizen,' when used in federal laws, excludes State citizens.
The court was specifically speaking about 18 U.S.C.A §51 in its
deleiniation of citizens, however, that does not mean it does not apply to
other stautory areas.
Interesting note: Appeals from the District Court of the United States
Proper quotes below:"In its construction [18 U.S.C.A. § 51] it is proper to apply the rule that
criminal laws are to be construed strictly, and to bear in mind that other
rule that a construction is to be avoided, if possible, that would render
the law unconstitutional, or raise grave doubts thereabout. In view of these
rules it is held that "citizen" means "citizen of the United States", and
not person generally, nor citizen of a State; and that the "rights and
privileges secured by the Constitution or laws of the United States" means
those specially and validly secured thereby. Thus limited, this section has
been enforced as constitutional. " POWE v. UNITED STATES, 109 F.2d 147 (5th
"In its construction [18 U.S.C.A. &Sect; 51] it is proper to apply the rule that
criminal laws are to be construed strictly, .... In view of these rules it
is held that "citizen" means "citizen of the United States", and not person
generally, nor citizen of a State; and that the "rights and privileges
secured by the Constitution or laws of the United States" means those
specially and validly secured thereby. Thus limited, this section has been
enforced as constitutional. " POWE v. UNITED STATES, 109 F.2d 147 (5th Cir.
OR taken out of context (perhaps)
"... it is held that "citizen" means "citizen of the United States", and not
person generally, nor citizen of a State; ... POWE v. UNITED STATES, 109
F.2d 147 (5th Cir. 1940)
United States 5th Circuit Court of Appeals Reports
POWE v. UNITED STATES, 109 F.2d 147 (5th Cir. 1940)
POWE et al. v. UNITED STATES.
Circuit Court of Appeals, Fifth Circuit.
January 17, 1940.
Page 148 Appeals from the District Court of the United States for the
Southern District of Alabama; John McDuffie, Judge. Sam B. Powe and
others were convicted for conspiring to injure, oppress, threaten and
intimidate a named citizen of the United States in the free exercise of his
right and privilege as such
citizen to speak and publish his views in certain newspapers, and they
appeal. Reversed and remanded with direction. Harry T. Smith, D.R.
Coley, Jr., and George A. Sossaman, all of Mobile, Ala., for appellants.
Francis H. Inge, U.S. Atty., of Mobile, Ala., for appellee. Before
SIBLEY, HUTCHESON, and McCORD, Circuit Judges. SIBLEY, Circuit Judge.
The five appellants were indicted (with another who was acquitted) for
conspiring to injure, oppress, threaten and intimidate a named citizen of
the United States in the free exercise of his right and privilege as such
citizen to speak and publish his views in certain newspapers. Their several
demurrers were overruled and appellants Page 149 were convicted and
sentenced. Of the numerous rulings
asserted to be error on this appeal we need consider only the judgment
upon the demurrers. The grounds of demurrer to each count include
these: That no crime against the United States is charged; that the right
of free speech and free press is not secured by the Constitution and laws
of the United States against infraction by individuals, but only by federal
or State action; and that the counts are too vague. The eight counts are
varying statements of the same conspiracy. Some of them say the conspiracy
was to prevent future publications; others to oppress and injure because of
past publications. Some counts state the nature of the publications, and
the means to be used to oppress the writer; others fail so to state, baldly
alleging in the words of the statute a conspiracy to injure and oppress the
citizen of the United States in the exercise of or for having exercised his
privilege of free speech and free press. One of the fullest statements is the
second count, which charges that the conspiracy was to injure and oppress
the executive editor of the Mobile Register and the Mobile Press,
newspapers published in Mobile, Alabama, he being a citizen of the United
States, in his exercise of his right and privilege secured to him by the
Constitution and laws of the United States, to write and print in said
newspapers his editorials exposing and condemning various forms of illegal
gambling and illegal lotteries in Mobile County, Alabama, and calling upon
the officials of the City of Mobile and County of Mobile, charged with the
suppression thereof, to take action to suppress the same and to punish the
offenders; the plan being to procure a photograph of the editor in a lewd
or obscene act and to use the same in threatening to show the photograph,
and in threatening
to use it as evidence in prosecuting the editor, and thus to stop his
publications; numerous overt acts to carry out the plan being alleged. Do
these facts make an offense against the United States? The statute
relied on in support of the indictment originated as Section 6 of the Act
of May 31, 1870, 16 Stat. 141 , entitled "An Act of enforce the Right of
Citizens of the United States to vote in the several States of this Union,
and for other Purposes." It appeared in the Revised Statutes with some
alteration as Section 5508; was carried without change into the Criminal
Code as Section 19; and now appears as Section 51 of Title 18 of the United
States Code, 18 U.S.C.A. § 51. The applicable language is: "If two or more
persons conspire to injure, oppress, threaten, or intimidate any citizen in
the free exercise or enjoyment of any right or privilege secured to him by
the Constitution or laws of the United States, or because of his having so exercised
the same * * * they shall be fined not more than $5,000 and imprisoned not
more than ten years, and shall, moreover, be thereafter ineligible to any
office, or place of honor, profit, or trust created by the Constitution or
laws of the United States." Some of the Sections of the Enforcement Act of
1870 were repealed in 1909, but Section 6, as then reenacted, stands good
for whatever it properly covers. United States v. Moseley, 238 U.S. 383, 35
S.Ct. 904, 59 L.Ed. 1355. In its construction it is proper to apply the
rule that criminal laws are to be construed strictly, and to bear in mind
that other rule that a construction is to be avoided, if possible, that
would render the law unconstitutional, or raise grave doubts thereabout. In
view of these rules it is held that "citizen" means "citizen of the United
States", and not person generally, nor citizen of a
State; and that the "rights and privileges secured by the Constitution or
laws of the United States" means those specially and validly secured
thereby. Thus limited, this section has been enforced as constitutional. Ex
parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274; United States v.
Waddell, 112 U.S. 76, 5 S.Ct. 35, 28 L.Ed. 673; Logan v. United States, 144
U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429; United States v. Moseley, supra. In
the Yarbrough case the right involved was that to vote in a Congressional
election, as it was in the Moseley case; in the Waddell case it was the
right to make a federal homestead entry; and in the Logan case it was the
right to be secure from
lawless violence while a prisoner in the hands of a United States Marshal.
These matters, all within the federal power, Congress could protect under
the general authority to pass "all necessary and proper laws", under
U.S.C.A. Constitution, Art. 1, Sect. 8, Par. 18. But Section 5519 of the
Revised Statutes, which undertook similarly to punish conspiracies against
any person to deprive him of the equal protection of the laws, or Page 150
to prevent State authorities from affording such protection, was held
unconstitutional, because neither the Fourteenth Amendment nor any other
part of the Constitution put the matter of conspiracies by individuals
touching such matters within the power of Congress, but only gave power to
correct wrong action by the State or its officers. It was so held in United
States v. Harris, 106 U.S. 629, 1 S.Ct. 601, 27 L.Ed. 290, where the person
mobbed was in the custody of a State Sheriff; and in Baldwin v. Franks, 120
U.S. 678, 7 S.Ct. 656, 763, 30 L.Ed. 766, where the rights of a Chinese
under a treaty of the United States were involved. It was again held that
the power of Congress was not extended to protect against violations by
individuals of the general rights of persons and citizens by the mention of
such rights in the Fourteenth Amendment, U.S.C.A., in the Civil Rights
Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835. The reasoning of these cases,
though opposed by some dissents, is full and convincing, and the conclusion
reached as to the effect upon federal power of the Fourteenth Amendment has
stood for more than two generations. Pursuing further the application
of the statute now
before us, in Baldwin v. Franks, supra, it was held the word "citizen"
means citizen of the United States in a political sense, and did not
include a resident Chinese. Again in Hodges v. United States, 203 U.S. 1,
27 S.Ct. 6, 51 L.Ed. 65, the section was invoked against conspirators who
were charged with interfering with citizens in their right or liberty of
contracting to work in a lawful occupation, but the court held that this
was a common right of all persons, and the Fourteenth Amendment did not put
it under federal protection except against State action; and the fact that
the persons there involved were negroes did not bring the matter within the
special ambit of the Thirteenth Amendment. Similarly in United States v.
Wheeler, 254 U.S. 281, 41 S.Ct. 133, 65 L.Ed. 270,
the right invaded by the conspirators was the citizen's right to remain in
the State of his choice, and to remove only at his own will. The Court
conceded the right to be fundamental and to belong to the citizens of each
State, and to be guarded in part against State interference by Art. 4,
Sect. 2 of the Constitution, but held that no federal offense was involved
in an abduction done by individual conspirators. The only case cited to us
in which a conspiracy against the right of freedom of speech was involved
is United States v. Hall, in the Circuit Court of Alabama, 26 Fed.Cas. 79,
No. 15,282. Justice Woods there upheld the indictment, but this was in
1871, before the decision of any of the above cited cases in the Supreme
Court, and it is not reconcilable with his own opinion in United States v.
Harris, 106 U.S. 629, 1 S.Ct. 601, 27 L.Ed. 290. We are
controlled by the above cited decisions of the Supreme Court. That the
right of free speech and a free press, understood with the limitations to
prevent abuses which the law has always annexed to these freedoms, is
fundamental to the continuance of free political institutions, and is the
right both of citizens and other persons in the United States and the
several States needs no reassertion. The ground has been covered recently
and the right vindicated as against State action by federal power by
virtue of the Fourteenth Amendment, in such cases as Grosjean v. American
Press Co., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660; De Jonge v. Oregon,
299 U.S. 353, 57 S.Ct. 255, 81 L. Ed. 278; Herndon v. Lowry, 301 U.S. 242,
57 S.Ct. 732, 81
L.Ed. 1066; Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949;
Schneider v. State of New Jersey (Town of Irvington), 60 S.Ct. 146, 84
L.Ed. ___; Frank Hague v. Committee for Industrial Organization, 307 U.S.
496, 59 S.Ct. 954, 83 L.Ed. 1423. But this effect of the Fourteenth
Amendment on State action, as has been shown, is not enough to bring
conspiracies of individuals within the punitive power of Congress under the
section we are discussing. Nor can the special mention of freedom of speech
and press in the First Amendment have that effect. The provision there is
"Congress shall make no law * * * abridging the freedom of speech, or of
the press." That the first ten amendments were intended as limitations on the
power of the federal government and are not grants of power to it has been
established from the beginning. A flat prohibition against the regulation
of a matter in one direction cannot result in endowing Congress with power
to regulate it in another direction. This amendment, while regarding
freedom in religion, in speaking and printing, and in assembling and
petitioning the government for redress of Page 151 grievances as
fundamental and precious to all, seeks only to forbid that Congress should
meddle therein. If Congress can make any law in behalf of these it is
because of some power elsewhere expressly granted, or because it is a law
necessary and proper to carry out such power. We are familiar with federal
laws touching on freedom of speech and press such as the Espionage Law of
1917, 40 Stats. 217 , which rested on the war power of Congress and the
general implied power to maintain the safety of
the Government. See Frohwerk v. United States, 249 U.S. 204, 39 S.Ct. 249,
63 L.Ed. 561; Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed.
470. And we do not doubt that Congress may directly protect its citizens in
their right to assemble peaceably and petition the federal government for
redress, just as it may protect persons from unlawful violence while in
federal custody, under what are called the implied powers of Congress.
Federal elections might probably be directly protected by Congress
although no question of race, color, or previous condition of servitude
under the Fifteenth Amendment be present. But in the cases supposed
Congress would interfere directly only because of the necessity to maintain
a federal right in its integrity. Because the federal
government is a republican one in which the will of the people ought to
prevail, and because that will ought to be expressive of an informed public
opinion, the freedom of speaking and printing on subjects relating to that
government, its elections, its laws, its operations and its officers is
vital to it. Assuming that for this reason Congress, if it finds it
necessary, can legislate to maintain such freedom in that field, it does
not follow that Congress can legislate generally to preserve such freedom
in discussing religious affairs, or social or artistic matters, or matters
of purely State concern. Again, by Art. 4, Sect. 4, of the Constitution the
United States shall guarantee to every State a republican form of
government. Should a tyranny be set up in a State accompanied by a
suppression of free speech and press, conceivably the Congress might be
called on, temporarily in the execution of this guaranty, to pass a law
securing against individual
violence free speech in such State; but the section before us is not such
a law. The dividing line between the powers of the State and federal
governments in preserving these great general rights of persons, and the
difference between the rights and privileges of a citizen of the State and
of the United States, was clearly recognized in United States v.
Cruikshank, 92 U.S. 542, 552, 23 L.Ed. 588, when the section under
discussion first came before the Supreme Court. It was there stated that
the right of assembly to petition Congress would be "an attribute of
national citizenship, and, as such, under the protection of, and guaranteed
by, the United States", and "if it had been alleged * * * that the object
of the defendants was to prevent a meeting for such a purpose, the case
would have been within the statute, and within the scope of the sovereignty of the
United States." But since the indictment only alleged generally that the
meeting was "for a lawful purpose", no crime was charged, because the
protection of the right of assembly in general was in the power of the
State. The other counts alleged conspiracies generally to deprive of the
equal protection of the law, and of life and liberty without due process
of law, and the Fourteenth Amendment was held not to extend federal power
as to those matters beyond the controlling of State action. On the
authority of the Cruikshank case the counts in the present indictment,
which do not disclose what the speaking and printing conspired against
related to, charge no offense, because the right to freely speak and print
about matters in general is not "secured by the Constitution and laws of
the United States." The other counts which state the speaking and printing
related wholly to matters with which the City and County of Mobile were
concerned, and with which the
United States had no concern, expressly disclose the matter to have been
beyond the authority of Congress, and not a right or privilege protected
by the section. The demurrers to the indictment ought therefore to have
been sustained. The judgment is reversed, the conviction set aside, and the
cause remanded with direction to sustain the demurrers. Page 152 Page 178