Rule of Law, by Ken Paul White (

Rule of Law, by Ken Paul White (

Postby admin » Sun Jan 19, 2014 8:32 am

Rule of Law, by Ken Paul White



Table of Contents

• Forgetting Brandenburg And The Rule of Law: Brett Kimberlin Censorship-Through-Lawfare Update (Jun 5, 2012)
• Rule of Law No Match For Reefer Madness (Oct 20, 2010)
• The Rule of Law is Outrageous (Dec 18, 2008)
• Law, Facts, And Even Minimal Gestures Towards Research All Have Suspicious Muslim Connections (Apr 27, 2013)
• Alabama Blogger Roger Shuler Arrested For Violation of Unconstitutional Injunction (Oct 27, 2013)
• Roger Shuler Convicted of Resisting Arrest, Remains In Custody for Contempt of Prior Restraint Order (Jan 15, 2014)
• The Tomb of the Unknown Document (Oct 28, 2013), by Clark
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Re: Rule of Law, by Ken Paul White (

Postby admin » Sun Jan 19, 2014 8:34 am

Forgetting Brandenburg And The Rule of Law: Brett Kimberlin Censorship-Through-Lawfare Update
Jun 5, 2012
By Ken White.


Last week I wrote about how blogger Aaron Walker was arrested at a hearing on one of Brett Kimberlin's "peace orders" in Maryland. Since then, there have been significant developments to the matter:

1. What happened to Aaron Walker: The day of the arrest, it wasn't clear why Aaron had been arrested — there was speculation that he was arrested on the original peace order, that he was arrested for contempt, that he was arrested on some new peace order, and that he was arrested on Kimberlin's false and manufactured assault allegations. Now it's clearer. It appears that Brett Kimberlin sought a new peace order after Everyone Blog About Brett Kimberlin day and contrived to have Aaron arrested on that when he came to court on May 29th. The order — provided and analyzed by David Hogberg — is shockingly conclusory and vague. Yet even with that vagueness, it's clear that Kimberlin is explicitly seeking to have Aaron prohibited from discussing Kimberlin, and equally clear that a unprincipled and limp judiciary uncritically acquiesced. Kimberlin's filing is also notable for a common theme with his crew: any threats he gets (or that he, a convicted perjurer, claims he got) may be attributed to anyone or everyone who criticized him:

Mr. Walker has tweeted on Twitter about me in alarming and annoying ways over hundreds of times in the past week and urged others to attack me. He has generated hundreds of blog posts directly and indirectly based on false allegations that I framed him for an assault.

Mr. Walker has had many people threaten me directly with death, and told me to stop talking to the police, and not show up in court or I would die.

I've actually read Aaron's blog posts and Twitter comments. None of them urge anyone to "attack" Kimberlin, unless by "attack" you mean "criticize." Moreover, as Lee Stranahan points out, easily available public information shows that Kimberlin lied when he said that Aaron arranged "Blog About Brett Kimberlin Day." A judiciary that was not asleep at the wheel — a judiciary that took its role seriously, particularly when First Amendment rights are at stake — would have demanded to see the particular blog posts and tweets Kimberlin was referencing. But that would have required effort, attention, responsibility, and a vague grasp of the technology that the judges here were ruling upon. Rubber-stamping is much easier.

[Of course, criminal defense attorneys like me will tell you that rubber-stamping is not the exception -- it is the rule.]

2. What passed for a hearing: Audio tape of the Walker/Kimberlin hearing has been released, and folks are beginning to create unofficial transcriptions. Patterico has audio, transcriptions, and commentary here. The tape is both deeply familiar to anyone who practices law (especially criminal law) and deeply depressing. The "hearing" was a farce. It was governed not by the rule of law, but by the rule of Judge C.J. Vaughey, two rules that proved rather starkly incompatible. Nowhere is this as stark as when Judge Vaughey says, rather shockingly explicitly, that he doesn't care what the law is, and that Aaron is responsible for anything that anyone does (or might do) based on Aaron's criticism of Kimberlin:

THE COURT: –You’ve decided to battle, and he comes back. And see, you’re — you — you’re the kind of guy, you don’t want to get into this to settle this, mano y mano. You want to get all these friends who got nothing else to do with their time, in this judge’s opinion, because — my God, I’m a little bit older than you are, and I haven’t got enough time in the day to do all the things I want to do. And I thought by retirement, I would have less to do. I got more! Because everybody knows I’m free! So they all come to me. But you, you are starting a — a conflagration, for lack of a better word, and you’re just letting the thing go recklessly no matter where it goes. I mean, you get some — and I’m going to use word I (ph) — freak somewhere up Oklahoma, got nothing better to do with his time, so he does the nastiest things in the world he can do to this poor gentleman. What right has that guy got to do it?

WALKER: He has no right to do that, Your Honor.

THE COURT: Well, he’s — you incited him.

WALKER: But, your honor, I did not incite him within the Brandenburg standard though.

THE COURT: Forget Bradenburg [sic]. Let’s go by Vaughey right now, and common sense out in the world. But you know, where I grew up in Brooklyn, when that stuff was pulled, it was settled real quickly.

WALKER: I’m not sure what that means, your honor.

THE COURT: –Very quickly. And I’m not going to talk about those ways, but boy, it ended fast. I even can tell you, when I grew up in my community, you wanted to date an Italian girl, you had to get the Italian boy’s permission. But that was the old neighborhoods back in the city. And it was really fair. When someone did something up there to you, your sister, your girlfriend, you got some friends to take them for a ride in the back of the truck.

WALKER: Well, Your Honor, what–

THE COURT: –That ended it. You guys have got this new mechanical stuff out here, the electronic stuff, that you can just ruin somebody without doing anything. But you started it.

Brandenbug, as I mentioned in my earlier post, is the United States Supreme Court case that articulates the relevant standard: speech may only be banned on the theory that it is incitement when it is intended to create, and likely to create, a clear and present danger of imminent lawless action. But Honey Vaughey don't give a shit. In his courtroom, he is the law, and he's suspicious of all this new-fangled stuff, and he'll impose any damn standard he wants. And so he forbade an American citizen from writing about a public figure — a convicted domestic terrorist — for the next six months based on that convicted perjurer's vague and undocumented claims that he had suffered threats from unidentified people.

It appears that Judge Vaughey has had a respectable career. Moreover, I am sympathetic to the notion that everyone, including judges, makes mistakes. But I believe that Judge Vaughey's behavior — whether it is based on hostility to free expression and modern technology or merely mundane black-robe fever — is so extreme that it should be his legacy. Judge Vaughey ought to be remembered henceforth as a lawless Luddite indifferent at best, and scornful at worst, to the most fundamental rights Americans possess.

3. This will not stand: People aren't accepting Judge Vaughey's ruling meekly. It will be fought. It will be overcome. First Amendment demigod Eugene Volokh is assisting. I'm doing what modest things I can to round up more help. People are organizing, writing more, defying Kimberlin and his clan.

4. Aaron is not the only target of lawfare by the Kimberlin crew. The Examiner reports that a lawyer named Kevin Zeese — possibly the political activist of the same name — is now threatening Ali A. Akbar of the National Bloggers Club on behalf of "Velvet Underground Revolution," a charity associated with Kimberlin. Zeese's threats will sound familiar to people who follow this blog and read about legal threats calculated to chill speech:

According to Zeese, the information that has been provided by a number of conservative blogs regarding Kimberlin is false, but he would not elaborate what information, specifically, was incorrect.

He was also unwilling to state what threats had been made, and was unwilling to provide any documentation when pressed.

"Get your facts straight," he said repeatedly.

When asked what, specifically, Akbar had done to spur the alleged threats, Zeese again responded by saying people should "get their facts straight."

As I have said repeatedly in the context of many different threats, ambiguity in a legal threat is a hallmark of empty thuggery and bad-faith censorious aims.

Should Mr. Zeese escalate to filing suit — or should his bumptious threats continue — I'll offer Mr. Akbar what I've offered all sorts of bloggers of all political persuasions: I will try to find you pro bono counsel and assist you myself to the extent I can.

[I'm feeling chuffed about the potential value of my own help today; we won another SLAPP motion for a client. Booyah.]

Kimberlin allies have also posted a picture of the home of Akbar's mother, apparently on the justification that one of Mr. Akbar's organizations uses that address in one of its filings. In context, given the connection to a convicted bomber, it's rather clearly intended to terrorize Akbar and his family.

5. Akbar is not the only additional victim. I'm trying to help another blogger faced with particularly despicable lawfare, apparently by Kimberlin allies. I put up the Popehat signal here. I've gotten some responses, but I'm still looking for federal criminal practitioners in the Middle Districts of Florida and Tennessee.

6. I asked people to transcend partisanship on this issue. Some are. Some aren't. There's still a disappointing tendency on the right to frame this as "see why the Left is full of evil people." There's still on the Left either too much silence or too much "lol it's just wingnut hysteria." That's regrettable. But I'm warmed by that support that has come from both sides. Keep it up. Support someone whose views you hate.
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Re: Rule of Law, by Ken Paul White (

Postby admin » Sun Jan 19, 2014 8:37 am

Rule of Law No Match For Reefer Madness
Oct 20, 2010
By Ken White.

Law, Politics & Current Events

Los Angeles County Sheriff Lee Baca channels Judge Dredd:


See, Baca really, really doesn't like California's Proposition 19, which if approved by voters in November would decriminalize a substantial amount of marijuana use here. Sheriff Baca knows that, rule of law aside, there can be no ground given in the Great War On Drugs, which we will be winning any day now, really. Sheriff Baca knows that he has a protected right to arrest people for smoking vegetation. Sheriff Baca knows that his budget, his power, his prestige, his position depend on the Great War on Drugs.

So Sheriff Baca and his merry men are not going to stop arresting Californians for marijuana use just because it's been decriminalized through lawful process. No, not a chance.

Los Angeles County Sheriff Lee Baca said Friday his deputies’ marijuana enforcement would not change even if Proposition 19, which would legalize the drug in California, passes Nov. 2.

“Proposition 19 is not going to pass, even if it passes,” Baca said in a news conference Friday at sheriff's headquarters in Monterey Park.

Baca, whose department polices three-fourths of the county, was bolstered Friday by an announcement from the Obama administration that federal officials would continue to “vigorously enforce” marijuana laws in California, even if state voters pass the measure.

Baca said the proposition was superseded by federal law and if passed, would be found unconstitutional.

The proposition that California voters cannot constitutionally decriminalize marijuana use because of the Supremacy Clause is a curious one. Certainly there is a good argument that under current Supreme Court precedent federal laws against marijuana use survive a state's decriminalization, given that federal courts routinely say that Congress can stick its nose into just about any goddamned thing it wants. But Baca seems to be suggesting that if the federal government makes an act a crime, then it must perforce also be against state law. I'm not sure where he finds the authority for that. Perhaps we could ask a doctor with a flashlight. Or perhaps Baca simply means that his officers will enforce federal law. The feds of this administration don't seem to like that when it comes to immigration law, but they may be amenable to state enforcement of drug law. [After all, the feds cannot possibly enforce the federal prohibition on small amounts of marijuana on anything more than a you-got-struck-by-lightening level. In recent memory, the local office guidelines for which marijuana cases were big enough to be prosecuted required 500 kilos or 1000 plants.]

But we're asking too much of Baca. He's not a lawyer. He's just a guy with a badge, and a budget, seeking to keep his deputies employed.


And the rule of law is just a principle. Baca would hardly be the first person to ignore, or trample, a principle because Marijuana is Bad. Why, look at DePaul University. It's supposed to be a university, devoted to open discussion of ideas. But it refuses to recognize Students for Cannabis Policy Reform, student group devoted to debate and education about marijuana laws, because Marijuana Is Bad, End of Discussion. Now maybe DePaul would look less ridiculous if this was an organization devoted to defying marijuana laws in public. But they want to debate whether the law of the land is just. And to the administrators of DePaul, that subject is inherently harmful to students, because marijuana is unhealthy and impairs studies and frankly makes some people assholes, admit it. Of course, DePaul (as the link shows) hardly has an impressive record of commitment to freedom of expression. So maybe we shouldn't be surprised.

Frankly I'm not even a little tempted to try marijuana if Proposition 19 passes. So I'll have to find some other way to spit in the faces of the Lee Bacas and DePauls of the world.
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Re: Rule of Law, by Ken Paul White (

Postby admin » Sun Jan 19, 2014 8:38 am

The Rule of Law is Outrageous
Dec 18, 2008
By Ken White.

Life, Politics & Current Events

Bernard Madoff apparently stole huge amounts of money in a Ponzi scheme that will have dramatic impact on many individuals and entities, and may even be of sufficient scope to have a perceptible impact on the economy at large. Today United States District Court Judge Gabriel Gorenstein reversed a magistrate judge's order detaining him before trial without bail, and set bail:

Federal District Judge Gabriel Gorenstein said Madoff, 70, must wear electronic monitoring, observe a 7 p.m-to-9 a.m. curfew and restrict his travel as conditions of his $10 million bail. He and wife Ruth were told to surrender their passports, and they put up their apartment, as well as homes in Montauk, Long Island, and Palm Beach, Fla., to guarantee the bail.

At The Corner, from which outrage occasionally emerges, I saw this:

A Despicable Decision [Larry Kudlow]

It was Federal District Judge Gabriel Gorenstein who released big-time, $50 billion scam-artist/fraud/crook Bernard Madoff. He is the one who did it. This ruling allows Madoff to stay out of jail, even though he couldn’t meet the original bail conditions that he provide four co-signers to his $10 million bond.

Write Judge Gorenstein. E-mail him. Call his office. (Contact info here.) Let him know what a terrible injustice he has done to every law-abiding citizen in this country, not to speak of the victims of this incredible fraud.

It is an outrage to me that Madoff is sitting back home in his $7 million Park Avenue pad after what he did to this country. What a joke. It is a complete and utter outrage.

Absent from Mr. Kudlow's outrage is any analysis of whether Judge Gorenstein's bail order comported with the rule of law.

In fact, it does.
Bail decisions for people charged in federal court are governed by the Bail Reform Act of 1984. That statute is codified at 18 U.S.C. section 3141 et seq. The Bail Reform act requires federal courts to release criminal defendants on his or her own recognizance — or an unsecured appearance bond (basically, their own signature promising to appear, secured by their promise to pay money if they do not) unless the court finds that won't ensure that the person will appear and won't be a danger to the community. 18 U.S.C. section 3142(b) provides, in relevant part:

The judicial officer shall order the pretrial release of the person on personal recognizance, or upon execution of an unsecured appearance bond in an amount specified by the court, subject to the condition that the person not commit a Federal, State, or local crime during the period of release and subject to the condition that the person cooperate in the collection of a DNA sample from the person if the collection of such a sample is authorized pursuant to section 3 of the DNA Analysis Backlog Elimination Act of 2000 (42 U.S.C. 14135a), unless the judicial officer determines that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community.

Otherwise, the court must release the defendant on a bond with conditions, unless the court finds that no combination of conditions (like bail amount, posting property, house arrest with electronic monitoring, surrender of passports, etc.) will ensure that the defendant will appear for trial and will not pose a danger to the community. Only then — if flight risk and danger cannot be addressed by conditions of release — may the judge detain the defendant before trial:

If, after a hearing pursuant to the provisions of subsection (f) of this section, the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community, such judicial officer shall order the detention of the person before trial.

Now, it may be possible to criticize Judge Gorenstein's decision on the grounds that no combination of conditions can possibly assure that Madoff will show up for trial. I didn't see the evidence offered a the hearing, or read the Pretrial Services report, so I don't know. One might even argue that Madoff will be a continuing financial danger to the community, and that danger can't be addressed by conditions — though given the publicity about his scam, this seems unlikely. Those would be rational, law-based arguments.

But the argument that his release is outrageous because his crime is so heinous is an argument based on emotion, not law. The nature of the offense charged and the weight of the evidence are factors under 18 U.S.C. section 3142(g) in determining whether conditions can assure a defendant's appearance, but they are not the only factors.

Don't like it? Think that the law ought to permit detention of people accused of horrible crimes without reference to flight risk or danger to the community? Take it up with Congress. By releasing Madoff on strict conditions based on a flight risk analysis, the judge is applying the rule of law. Calling for people to telephone and email the judge to vent outrage based on a visceral disagreement with the release is the equivalent of encouraging people to vent their rage because the accused is being given a jury trial, or because the sentence permitted by the statute is not long enough, or because the elements of the crime as defined by the statute are insufficiently "tough." It's a permissible call for people to exercise their free speech rights, but it is also a naked appeal to anger at the expense of the rule of law. It's regrettable.
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Re: Rule of Law, by Ken Paul White (

Postby admin » Sun Jan 19, 2014 8:45 am

Law, Facts, And Even Minimal Gestures Towards Research All Have Suspicious Muslim Connections
Apr 27, 2013
By Ken White.


In the wake of the terrorist attack on the Boston Marathon and the identification, arrest, and charging of Dzhokhar Tsarnaev, I've been feeling very self-conscious. That's because lots of people are talking about federal criminal law and criminal procedure, subjects with which I am somewhat familiar. When they do, I ask myself: when I very frequently talk about things I haven't bothered to learn about, do I sound like that? God help me.

Today: nutty and deliberately ignorant conspiracy theories about Tsarnaev's first court appearance.

As I mentioned early in the week, Tsarnaev made his initial appearance from his hospital bed on April 22, 2013, the first court day after his arrest. At that hearing, United States Magistrate Judge Marianne B. Bowler said this to him:

You have a right under the Constitution of the United States to remain silent. Any statement made by you may be used against you in court, and you have the right not to have your own words used against you.

In other words, Magistrate Judge Bowler informed Tsarnaev of his Fifth Amendment rights.

(The transcript suggests she did so incorrectly and confusingly — the last clause just isn't right unless you modify it to say "you have the right not to be compelled to say things against yourself," because the government certainly can use your words against you if those words aren't compelled. That may mean that the court reporter got it wrong, or that Judge Bowler had the sort of slip of the tongue any of us can have speaking extemporaneously.)

Judge Bowler reading Tsarnaev his rights has caused great consternation in some circles. It has been reported that he initially answered questions but stopped talking after read his rights. Outrageous! Critics want to know: why was he allowed to make a court appearance? Why did the judge read him his rights? More critically, what motive did the judge have to do so?

The jittery and uncombed are eager to rush in to answer that question.

First, I give you the one-vowel-short-of-aptly-named Pat Dollard, whose headline shrieks "SHOCK: JUDGE WHO ENDED INTERROGATION OF BOSTON BOMBER WITHOUT DOJ KNOWLEDGE LINKED TO MUSLIM BROTHERHOOD":

UPDATE: Judge Bowler lists herself as “a dedicated international traveler” on her bio in Business Week. Where does she travel to in such a dedicated fashion? Who does she see there, and what does she do, so regularly as to be self-described as “dedicated”. And, perhaps, “dedicated” to anything in particular? Did she take on a radical Muslim boyfriend in her travels?

International travel is, indeed, suspicious. An international travel is likely to encounter foreigners, some of whom are not even white.

Or take Daniel Greenfield of Frontpage Mag, who has this on "Boston Bomber Magistrate’s Middle Eastern Connections":

As FOX News reported and Robert Spencer noted, Dzhokhar Tsarnaev stopped talking once he was prematurely read his Miranda rights. That helps the authorities establish the lone wolf narrative. Whatever else we might have learned from him is probably lost.

. . . .

While Islamic infiltration of our political system is well known, the infiltration of our legal system is less well known, but operates within similar parameters with foreign contacts being made. There is no way of knowing how much Bowler has been influenced by her connections with the legal and political systems of the Muslim world, but it is telling that her international judicial relations appear to begin and end with the Muslim world.

The very fact that there is no way to know how much Bowler was influenced by Muslims show exactly how shadowy and mysterious Muslims are!

Now, here's why these people are full of shit.

Magistrate Judge Bowler was required by federal law to tell Tsarnaev of his right to remain silent. Rule 5 of the Federal Rules of Criminal Procedure, governing initial appearances, says this:

(d) Procedure in a Felony Case.

(1) Advice. If the defendant is charged with a felony, the judge must inform the defendant of the following:

(A) the complaint against the defendant, and any affidavit filed with it;

(B) the defendant's right to retain counsel or to request that counsel be appointed if the defendant cannot obtain counsel;

(C) the circumstances, if any, under which the defendant may secure pretrial release;

(D) any right to a preliminary hearing; and

(E) the defendant's right not to make a statement, and that any statement made may be used against the defendant.

And how did Magistrate Judge Bowler wind up holding an initial appearance? The U.S. Attorney's Office — the federal prosecutors, an arm of the U.S. Department of Justice — filed the criminal complaint on Sunday, April 21, 2013, initiating the criminal case. The docket for the case to date is here. Filing a complaint against a person in custody starts the federal criminal process moving, leading naturally to a first appearance. If the feds hadn't filed the complaint, there's no way Judge Bowler could have held a hearing with Tsarnaev without someone filing a habeas corpus petition. Judges can't initiate such federal criminal proceedings on their own.

The Patient Zero for this plague of derangement is Fox News' Megyn Kelly:.

The FBI filed a federal criminal complaint against the 19-year-old on Sunday, and federal District Court Judge Marianne Bowler [emphasis added] arrived at the hospital where he is being treated to preside over his initial hearing Monday, when she read him his Miranda rights.

[FBI officials told The Associated Press Wednesday that Tsarnaev acknowledged to investigators his role in the attacks before he was advised of his constitutional rights. He reportedly said he was only recently recruited by his brother to be part of the attack.]

But Fox News' sources say there was confusion about Bowler's timing, with some voicing concerns that investigators were not given enough time to question Dzhokhar under the "public safety exception" invoked by the Justice Department.

Someone with a saintly level of patience could probably teach prominent journalist Megyn Kelly the difference between a District Court Judge and a Magistrate Judge if she wanted to know for, say, the purpose of reporting accurately about the most important federal criminal case of the year. Maybe the same person could teach her how to use the Google to see which one Magistrate Judge Bowler is.

But Kelly is merely a carrier of the derangement. It is to her credit that she acknowledges being told that Rule 5 required Magistrate Judge Bowler to inform Tsarnaev of his rights — and that she acknowledges being told that the "Judge Bowler initiated the hearing too early" theory is bullshit.

Two officials with knowledge of the FBI briefing on Capitol Hill said the FBI was against stopping the investigators' questioning and was stunned that the judge, Justice Department prosecutors and public defenders showed up, feeling valuable intelligence may have been sacrificed as a result.

Yes, federal agents are often against application of the rule of law. But:

But Justice Department spokesman Dean Boyd disputed the claims, saying that the suspect’s initial appearance was scheduled following the filing of the criminal complaint in a manner “consistent” with procedure – and that the agents were aware.

“The Rules of Criminal Procedure require the court to advise the defendant of his right to silence and his right to counsel during the initial appearance. The prosecutors and FBI agents in Boston were advised of the scheduled initial appearance in advance of its occurrence,” Boyd said.

A federal law enforcement official also told Fox News that the courts, not the Justice Department, made the decision on when and where to hold the hearing.

“The (FBI) agents and prosecutors were notified beforehand,” the official said, claiming those agents had already left the room when the judge came in.

So: some federal law enforcement official says that "the courts" made the decision when and where to hold the hearing. That is almost certainly literally true. But it's almost certain that first, the U.S. Attorney's office informed the court that they were ready for a hearing. Again, the feds initiate cases, and they initiate first appearances by showing up at court with someone in custody or asking the court to hold a hearing. Is it physically possible that Judge Bowler could, on her own initiative, scheduled a hearing after the feds initiated the case by filing the complaint? Yes. But it is an extraordinary claim, requiring some sort of evidence. Unnamed "federal law enforcement officials" are not known for their command of federal criminal procedure.

In short: the proposition that Judge Bowler was motivated by some sleeper-cell jihadist agenda to rush to inform Tsarnaev of his rights in order to shut him up is very stupid.

I recognize that federal criminal procedure is not common knowledge. But it's not hard to figure out either. I figured it out and I'm more than a little dim. A brief call to any first-year Deputy Federal Public Defender or Assistant United States Attorney, let alone any experienced federal criminal practitioner, would have cleared up these imbecilities.

But who wants to do actual research before accusing a judge of being a terrorist parisan? The wild-eyed people sniffing every falafel Judge Bowler ever ate are either (1) crazy (2) lazy (3) stupid or (4) dishonestly partisan, or some combination of those.

Update: A reaction from Pat Dollard:


Perhaps Pat Dollard is not able to understand the difference between an interrogation by law enforcement and an appearance in court. Or, more likely, he doesn't care.

Edited Again:

And in the category of "really ought to know better," consider Paul Mirengoff at Powerline:

I have never practiced criminal law (except briefly at the international level) and have not studied it since 1974. Thus, like most Americans, much of what I think I know about criminal procedure comes from watching television and movies.

My viewing experience does not include any instances in which a judge read a criminal defendant his or her Miranda warning in the middle of police interrogation. Thus, I was shocked to learn that this happened in the case of the surviving Tsarnaev terrorist.

. . . .

I can’t help but that suspect that it was the Obama administration that decided Tsarnaev should receive the Miranda warning. After all, wasn’t it the prosecutor who brought the judge to Tsarnaev’s hospital room in the first place? And isn’t it almost certain that the local prosecutor, an assistant U.S. attorney, acted on instructions from the higest level of the Justice Department? Line prosecutors don’t make decisions about how to treat terrorists in high profile cases when there is time to consult the DOJ.

The party line is that the magistrate judge made the decision to Mirandize the terrorist because she deemed her appearance in the hospital as constituting an appearance in court by Tsarnaev. This strkes me as ridiculous, unless the prosecutor characterized the event as the equivalent of a court appearance.

Although Mirengoff might be known for engaging his mouth without engaging his brain, he's not a moron, and not lazy: he's a well-qualified attorney. But his post amounts to saying "please congratulate me for refusing to research and for assuming criminal procedure works like I see on TV." Mirengoff is perfectly capable of researching the Federal Rules of Criminal Procedure and confirming that Rule 5 requires the judge to inform a defendant of their rights. Mirengoff attempt to evade the issue by asking why the judge would "deem her appearance in the hospital as constituting an appearance in court," and calling this ridiculous. It is Mirengoff's response that is both ridiculous and willfully ignorant. If the hearing held in the defendant's room wasn't an initial appearance, what the devil was it? It wasn't a probable cause hearing — the judge had already found probable cause by approving the complaint, and no further probable cause determination was necessary until either an indictment or preliminary hearing. It was run, in every respect, exactly like an initial appearance. Federal courts sometimes conduct initial appearances by video or in a hospital room when the circumstances require, as minimal research would have shown. It's very likely that the U.S. Attorney's Office pushed for an initial appearance in the hospital in order to ward off any future argument that the government failed to take Tsarnaev before the magistrate "without unreasonable delay" as required by Rule 5(1)(A).

If Meingoff is embarrassing, the loathsome and amoral torture-fetishist John Yoo is infuriating:

This is an outright violation of the separation of powers. It is not for federal judges, or worse yet their assistants, to rove around looking for criminal cases in which to act as law enforcement agents. The decision whether to read Miranda lies up to the executive branch.

Like Meingoff, John Yoo is neither stupid nor lazy nor unqualified to research legal issues. At the most charitable interpretation, neither wants to make even the most minimal inquiry about law and true facts when their gut reaction suits their partisan narrative. More likely, they are both deliberately dishonest people.
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Re: Rule of Law, by Ken Paul White (

Postby admin » Sun Jan 19, 2014 8:50 am

Alabama Blogger Roger Shuler Arrested For Violation of Unconstitutional Injunction
Oct 27, 2013
By Ken White.

Law, Politics & Current Events, WTF?

There are a few things you should know about Roger Shuler, who blogs at "Legal Schnauzer."

First, Shuler is creepy and crazy. (I formed that opinion by reading his blog.)

Second, Shuler is a vexatious litigant, a serial pro se abuser of the court system.1 (I formed that opinion by researching records of his litigation history.)

Third, Shuler is currently in jail, arrested for contempt because he violated an unconstitutional preliminary injunction — a classic prior restraint — prohibiting him from defaming the son of a former Alabama governor.

Some people excuse or applaud the third thing because of the first and second things. They shouldn't. The First Amendment protects everyone — even creepy, crazy vexatious litigants. You should demand that the First Amendment protect people like that, because if it doesn't, it won't protect you when you need it.

Shuler writes about Republican politicians in Alabama. It may be my ideological bias, but I assume that's fertile ground for posts about substantive issues — the legacy issues of the civil rights struggle, the abusive elements of the criminal justice system, and so forth. But recently Shuler seems mostly interested in writing about politicians' marital infidelity instead. Perhaps he's trying out for a job with a cable news network.

Shuler set his sights on Robert J. Riley, Jr. Riley is the son of the former Republican governor of Alabama. So he's connected. Shuler seems to believe that Riley is being groomed for office himself; it may be true, though Shuler's word is not a good reason to believe it. A few years ago Shuler wrote about Riley paying a fine in a campaign finance investigation. More recently, Shuler accused Riley of having an extramarital affair with a lobbyist, and made various sordid claims about their relationship. Again, Shuler saying it is not a good reason to believe it's true; if anything, the accusation is discredited by coming from Shuler.

Riley sued Shuler for defamation. That much is unremarkable. Defamation isn't protected by the First Amendment when it constitutes false and unprivileged statements of fact.

But Riley went further. He got Alabama Circuit Judge Claude D. Neilson to issue a preliminary injunction — that is, an order issued before there's been a trial — prohibiting Shuler from saying certain things about Riley:

Based on the foregoing, Respondents are ordered to cease and desist immediately from publishing (including oral publication to any third party), posting online, or allowing to be posted online any defamatory statement about Petitioners, including, but not limited to, any statement that Petitioners had an extramarital affair, that Petitioner Riley fathered a child out of wedlock with Petitioner Duke or anyone else, that Ms. Duke had an abortion, that Petitioner Riley paid or was in any way involved in paying to Ms. Duke or anyone else any monetary funds from any source related to said alleged extramarital affair or abortion, that any such funds were paid by Petitioner Riley or anyone acting on his behalf in exchange for Ms. Duke having an abortion or were in any way related to an affair or an abortion and/or as part of an effort to conceal an abortion, and that Petitioner Duke received any such funds. The Respondents are ordered to take all efforts to ensure that the subject information is taken off any and all websites that they enable, host, own and/or operate and that said information is not allowed to be posted or in any way published pending further Order of this Court. These efforts shall include, but not be limited to, taking the subject information off of the website known as "Legal Schnauzer," taking the subject information off all Twitter accounts that any Respondent maintains, and removing the subject information from all video-sharing and video-posting websites including, but not limited to, Youtube.

That order — forbidding Roger Shuler from saying something before he says it — is called prior restraint, and it is widely acknowledged to be a violation of First Amendment rights in all but the most extreme circumstances.

Roger Shuler continued to utter his accusations about Riley despite the injunction. Riley asked the court to hold Shuler in contempt. Shuler was arrested on October 23. His booking photo suggests he was beaten during the arrest. Though there are differing accounts, it appears that he was arrested for contempt for violating the unconstitutional injunction.

The Prior Restraint

The order underlying Shuler's arrest is unconstitutional.

There is a strong and venerable rule in American law against pretrial injunctions prohibiting defamation. It comes from two sources: equity and the First Amendment.


Injunctions are an equitable remedy, with their origins in courts of equity. Courts of equity applied discretion in an attempt to achieve just results, as opposed to courts of law bound to rules set forth in statutes. Courts of equity and law have been combined since the 19th century, but equitable traditions remain. An injunction is an equitable tradition because it is only supposed to be imposed when legal remedies — like monetary damages — are unavailable or inadequate. American courts have long held that equity will not enjoin defamation — that courts may not issue an injunction to prohibit someone from committing libel or slander because the victim can always sue for damages.

This is not some mere Yankee affectation. The courts of Alabama — where Judge Neilson issued his injunction — have long recognized the principle. "Nor can an injunction be granted to restrain the publication of a libel." Montgomery & W.P.R. Co. v. Walton, 14 Ala. 207 (1848). As one Alabama federal court explained a century ago:

Neither a court of equity, nor any other department of government, can set up a censorship in advance over such matters, and prevent a person from exercising this constitutional right. He has the right to publish, if he chooses to take the consequences. After he has spoken or written falsely, the criminal law can punish him, and the civil courts amerce him in damages. That such redress may not be adequate in all cases, and in some cannot be, is quite apparent; but the remedies named are all that the Constitution permits any court to employ against slanders upon a man’s credit and business standing. The court cannot go outside of the Constitution, or hold that to be an inadequate remedy which the Constitution has declared to be the sole remedy. The wrongs and injury, which often occur from lack of preventive means to suppress slander, are parts of the price which the people, by their organic law, have declared it is better to pay, than to encounter the evils which might result if the courts were allowed to take the alleged slanderer or libeler by the throat, in advance.Citizens’ Light, Heat & Power Co. v. Montgomery Light & Water, 171 F. 553 (1909)2

So: preliminary injunctions against defamation have long been strongly disfavored in equity.

First Amendment Law

Preliminary injunctions against defamation are even more strongly disfavored under the First Amendment. Here's how United Sates Supreme Court Justice Harry Blackmun put it in staying an injunction that a lower court had imposed forbidding CBS from running undercover footage of a beef processing plant in CBS, Inc. v. Davis, 510 U.S. 1315 (1994):

For many years it has been clearly established that “any prior restraint on expression comes to this Court with a ‘heavy presumption’ against its constitutional validity.” Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1578, 29 L.Ed.2d 1 (1971), quoting Carroll v. Princess Anne, 393 U.S. 175, 181, 89 S.Ct. 347, 351, 21 L.Ed.2d 325 (1968). “Where … a direct prior restraint is imposed upon the reporting of news by the media, each passing day may constitute a separate and cognizable infringement of the First Amendment.” Nebraska Press Assn. v. Stuart, 423 U.S. 1319, 1329, 96 S.Ct. 237, 254, 46 L.Ed.2d 199 (1975) (BLACKMUN, J., in chambers). As the Court recognized in Nebraska Press Assn. v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 2802, 49 L.Ed.2d 683 (1976), prior restraints are particularly disfavored:

“A criminal penalty or a judgment in a defamation case is subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted…. A prior restraint, by contrast, … has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication ‘chills’ speech, prior restraint ‘freezes’ it at least for the time.”

Although the prohibition against prior restraints is by no means absolute, the gagging of publication has been considered acceptable only in “exceptional cases.” Near v. Minnesota, 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed. 1357 (1931). Even where questions of allegedly urgent national security, see New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971), or competing constitutional interests, Nebraska Press Assn., 427 U.S., at 559, 96 S.Ct., at 2802, are concerned, we have imposed this “most extraordinary remed[y]” only where the evil that would result from the reportage is both great and certain and cannot be mitigated by less intrusive measures. Id., at 562, 96 S.Ct., at 2804.

See also Nebraska Press Assn. v. Stuart, 427 U. S. 539, 559 (1976) ("[P]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights").

Many courts have drawn a distinction between post-trial orders prohibiting speech that a jury has found to be defamatory and pre-trial orders forbidding speech on which there has been no trial. Narrowly drawn post-trial injunctions may comply with the First Amendment; pre-trial injunctions do not in any but the most extraordinary circumstances.

Judge Neilson's Excuse

So how did Judge Neilson excuse granting Riley's motion for a preliminary injunction before any trial of the matter? Very badly.

Judge Neilson — who may have executed a proposed order from Riley's attorneys3 — utterly failed to cite or distinguish any of the wall of authority discussing how preliminary injunctions are strongly disfavored in both equity and First Amendment law. Judge Neilson didn't cite the "only in the most extraordinary circumstances" rule, let alone apply it. He only cited two Alabama cases — one 1947 case about defamation of a business that had no First Amendment analysis, and one appeal of a criminal harassment conviction that doesn't even mention prior restraint or injunctions. In a footnote, Judge Neilson cited a melange of state and federal cases from California, Ohio, Michigan, and Illinois with no explanation or analysis. Those cases actually undermine his authority to issue the injunction, because they support the proposition that an injunction against defamation is almost always inappropriate before a finding on the merits at trial or if the plaintiff wins a summary judgment motion. It appears that the drafter of this order simply scoured the nation for the handful of outlier cases saying something positive about injunctions against defamation — plus the tiny number of cases approving them pretrial — while completely ignoring the authority (including from the United States Supreme Court) that such injunctions are inappropriate.

Moreover, the injunction has a key problem that courts have repeatedly identified: it doesn't just prohibit Shuler from saying a list of specified things, but also forbids "any defamatory statement about Petitioners, including, but not limited to" the specified statements. Courts strike down such language because it leaves a defendant like Shuler to guess at what he is or isn't allowed to say. Such vague language chills speech because it requires the injunction's target to risk jail over his belief about what is or isn't defamatory.

I read the injunction trying to find something "extraordinary" or "exceptional" about this case that could justify prior restraint. I failed. Judge Neilson attempts to rely on cases about defamation of trade by saying that Riley is in a high-profile business as an attorney, but does not explain how that is "extraordinary" as required by the Supreme Court. Almost everyone who bothers to sue for defamation is in some sort of business that might be harmed; this is not a limiting principle. Judge Neilson also indulges in a bit of scaremongering, suggesting that the injunction is necessary because Shuler has said the affair led to an abortion:

Some people in Alabama have very strong opinions about the ethics of abortion, and false statements about the Petitioners and abortion could subject Petitioners to ire, a physical altercation, or serious bodily harm.

As Aaron Walker suggests in his blog post about this, that argument is utterly ludicrous. Moreover, Riley and Judge Neilson cite no authority for the proposition that it's an "exceptional circumstance" just because the court can speculate that someone might believe the libel and as a result break the law to attack the victim for allegedly doing something protected by the United States Constitution.4

It's difficult to see what justifies this order — unless it's the fact that Robert J. Riley, Jr. is the son of a former governor and well-connected in the Alabama Republican party. It's very rare for judges to approve pretrial injunctions against defamation in the face of the overwhelming law against it, but when it happens it tends to benefit the rich, connected, and powerful. It's called the rule of law: they rule, that's the law.

There is one other factor that may have influenced the judge: that Roger Shuler is creepy, crazy, and a vexatious litigant. In this case Shuler has engaged in the sort of litigation conduct that would enrage any judge, and that might cloud good judgment. Shuler is one of those litigants who seems to think that if he can successfully evade service of process he'll never have to face the case. So he refuses to answer the door when Sheriff's deputies come to his house to serve papers. Judges don't like that. (Just ask our friend Charles Carreon, who got hit with a $46,000 attorney fee bill in part because he evaded service like Shuler has.) Eventually, the Sheriff served papers on Shuler by running a traffic stop on him for a purported moving violating and serving the papers on him in his car by the side of the road.

Yeah, you read that right. Sheriffs serve legal process on people all the time. It's part of their job. But how often, for how many litigants, do you suppose the Sheriff runs a traffic stop to achieve service?

Two Unpleasant Points Of Law

I'm going to tell you about two points of law right now. You're not going to like them.

First: maybe you're outraged because the Sheriff violated Shuler's Fourth Amendment rights by pulling him over to serve him with legal papers on behalf of the son of the former governor of Alabama. If you want to be outraged, it should be because under current law it's probably not a violation of his Fourth Amendment rights.

You can thank the Great War on Drugs for that. 18 years ago the Supreme Court, in one of its innumerable drug cases, ruled that a cop can run a traffic stop on you on a pretext. That is to say, if cops want to question you, or sniff around your car in hopes of developing probable cause to search it, they can follow you until they think you've broken a traffic law, and stop you for it, even if they would normally never bother with that particular traffic infraction. So: is it outrageous that a deputy would follow Roger Shuler until he (allegedly) broke some traffic law, and then stop him and use that opportunity to serve papers on him? Hell yes. Is it legal? Unfortunately, it probably is.

Second: Roger Shuler may be in serious trouble for violating Judge Neilson's injunction even if it is unconstitutional.

You may be thinking "it's not a crime to violate an unconstitutional order." Regrettably, that's not always the case. Some jurisdictions follow the "collateral bar rule" which provides, in brief, that the remedy for an unconstitutional order is an appeal, and that it's not a defense to a contempt charge to say the order was unconstitutional. Alabama has a shameful role in promoting that rule. In 1963, another Alabama circuit judge issued an injunction against civil rights protestors to prevent them from sit-ins, demonstrations, and protests. Civil rights protestors defied them, and were held in contempt. The United States Supreme Court itself agreed that the injunction appeared problematical, but upheld the Alabama doctrine that the protestors had waived any constitutional challenge to the injunction by violating it instead of making any attempt to challenge it.

Yeah. That's awful, isn't it? And it means that Shuler will have, at a minimum, a very difficult time defending the contempt charge by attacking the constitutionality of the injunction.

So What?

Why should you care that Roger Shuler — a crazy, creepy, vexatious litigant who may well have defamed Mr. Riley out of political spite — has been arrested for defying an injunction?

You should care because the injunction was absurdly unconstitutional, and apparently derived through raw political power. You should care because such abuses will never be confined to those few people we can all agree are creepy, crazy, and vexatious. You should care because every time they are successful such abuses become easier and more common. You should care because each such case is another line in a footnote in the next prior restraint order by the next Judge Neilson urged by the next Riley, prohibiting someone else on pain of jail from speaking. You should care because each such case emboldens and encourages plaintiffs to seek prior restraint against criticism. You should care because in our legal system no man is an island, and each man's censorship diminishes our collective right to speak, because we are all involved in the legal norms that protect freedom.

I hope that Roger Shuler's case will attract attention and some competent counsel. Orders such as Judge Neilson's should not issue without consequence — whether that consequence is reversal or infamy. Mr. Riley should get his day in court, and should — if he can convince a jury that Roger Shuler defamed him — collect appropriate relief. But we should not stand by while he obtains prior restraint that weakens all of our rights.

By the way, though Roger Shuler wraps himself in the First Amendment and bemoans how defamation suits against him are intended to chill speech, he's a fair-weather friend of free speech. When vexatious litigant and unrepentant domestic terrorist Brett Kimberlin abused the legal system to silence his political opponents, Shuler reacts with amusement and applause — because Kimberlin hates the people Shuler hates and mouths the words Shuler wants to hear. But he wants you to be outraged that political opponents are abusing the court system to silence him. In short, Shuler is a hypocritical asshole. That's okay. In addition to protecting crazy, creepy, vexatious people, the First Amendment also protects hypocritical assholes. Good thing for most of us, really.5


When I started to research this post, I planned to issue a plea to Shuler's political opposites to care about the prior restraint against him. But Aaron Walker has made the point more eloquently than I possibly could by writing a post about some of the problems with the preliminary injunction. Walker is the subject of censorious litigation by Brett Kimberlin, which Roger Shuler has applauded. Yet Walker challenges and questions the preliminary injunction against Shuler, because Walker cares about free speech. That's what support of key American ideals looks like.

Edited to add: Someone has started a legal defense fund for Mr. Shuler. Though I have doubts, based on how Mr. Shuler operates, that he has a factual basis for his accusations, I think that defamation cases should be resolved with both sides represented by competent counsel; one-sided affairs tend to yield results that erode free speech.



1. Roger Shuler's past is not the focus of this post, so I will be brief in describing my research. I examined Shuler's court records from the United States District Court for the Northern District of Alabama alone — I did not examine state court records or any other district. I discovered the following: (1) Shuler was embroiled in a bitter state court litigation against a neighbor. When he didn't like the rulings of the judge in that case, he sued the judge pro se in federal court. He lost, of course. Suing the judge because you don't like the judge's rulings is a reliable hallmark of crazy and abusive litigants. (2) Shuler then tried to move the state case against his neighbor to federal court, despite the federal court's lack of jurisdiction over it, on the bogus grounds that it was related to his case against the judge. He lost, because his theory was frivolous. (3) Shuler sued the University of Alabama, several of its officials, and the Birmingham Police Department pro se in federal court. Shuler — who used the complaint as a vehicle to attack his neighbor and his neighbor's lawyer, and the results of his neighbor's lawsuit — claimed that UA fired him because of his blogging, because of a political conspiracy, and because he's a man. He claimed that the police unlawfully accepted an invalid criminal complaint against him. He lost in the trial court and on appeal. (4) Shuler's neighbor won $1,525 is the lawsuit against Shuler. Shuler didn't pay, so Shuler's neighbor got a writ of attachment and arranged for a sale of Shuler's house. That's what happens when you don't pay judgments. Shuler responded by filing a pro se complaint in federal court against his neighbor, his neighbor's lawyer, the Sheriff who conducted the sale, and the Alabama State Bar (apparently on the theory that it failed to disbar the neighbor's lawyer upon Shuler's demand). Once again, Shuler lost in the trial and appellate courts. (5) Shuler filed a pro se federal complaint against a debt collection company and, once again, lost in the trial court and the appellate court. (6) Shuler frequently moved to disqualify the federal judges hearing his cases, sometimes multiple times in the same case, on the basis that they had demonstrated bias by ruling against him. See here, here, here, here, and here. This is a reliable tell of a frivolous and vexatious litigant. How frivolous and vexatious? Prenda Law tried it. In short: even without delving into his state court litigation record, the evidence shows that Roger Shuler crazily abuses the court system.

2. Motherfuckers could write back then, yo.

3. Shuler thinks it is sinister that Riley's lawyers write the proposed orders that the judge signs when he grants their motions. In fact, it is standard practice in state and federal courts across the United States for successful movants to submit proposed orders granting their motions. In many jurisdictions the local rules require the party making a motion to submit a proposed order with it. It's also common for judges to ask litigants to draft proposed orders. You would think that Shuler would have picked up such a mundane aspect of litigation by now. But I only said he's creepy, crazy, and litigious; I didn't say he's any good at it. By the way: freaking out over a party submitting a proposed order to the court is another reliable tell of a crazy vexatious litigant.

4. Under Judge Neilson's reasoning, you could get an injunction to prevent a defendant from accusing you of burning a flag, officiating at a same-sex marriage, or voting for a controversial measure or candidate, as we could speculate that any of those things could drive an unbalanced person to attack you.

5. Since Kimberlin's recent RICO complaint seeking to silence critics, someone using the name "RogerS" has been leaving exceptionally awful federal civil procedure advice for Kimberlin in comments on pro-Kimberlin sites. Now, I'm not saying that Roger Shuler is definitely RogerS. But I can't help noticing that both like Kimberlin and both have an astoundingly awful grasp of federal law. I'm not just saying Roger Shuler is ignorant of federal civil procedure; it's a dry subject, and there's nothing wrong with learning about other things instead. Rather, Shuler seems to have acquired a positive aversion to correct federal civil procedure, possibly by electrical means.
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Re: Rule of Law, by Ken Paul White (

Postby admin » Sun Jan 19, 2014 8:52 am

Roger Shuler Convicted of Resisting Arrest, Remains In Custody for Contempt of Prior Restraint Order
Jan 15, 2014
By Ken White.


I've previously written about Roger Shuler, the Alabama blogger currently in jail for contempt of court based on his defiance of an injunction that is likely an unconstitutional prior restraint of speech. Though I think that Shuler's history shows him to be a vexatious litigant, and though I think his erratic and foolish behavior has contributed substantially to this situation, I find the injunction against him and his incarceration for violating it very troubling. I'm quoted on that point in last weekend's New York Times.

There are some developments of note.

Shuler Has Been Convicted of Resisting Arrest And Sentenced to 90 Days Imprisonment, Suspended

Roger Shuler was charged with "resisting arrest" (sometimes called "contempt of cop") based on alleged conduct during his arrest in October 2013. Yesterday he was convicted of resiting arrest and sentenced to 90 days in jail, suspended, after a bench trial (that is, a trial by judge, not by jury) before Shelby County District Judge Ronald Jackson. I'm not an expert on Alabama criminal procedure, but my rough understanding is that misdemeanors like this are tried by bench trial in the "district courts" of Alabama, and can be appealed to the "circuit court" for a trial by jury, which is a strange way to run a railroad.1

Three things concern me about Shuler's bench trial.

First, he represented himself. It's not clear whether he refused appointed counsel (which he foolishly did before) or whether he was somehow deprived of one. I suspect he refused counsel, which is transcendentally idiotic and self-indulgent. He had a right to appointed counsel. Nothing in his history of pro se litigation suggests he was even minimally competent to defend himself.

Second, the judge denied Shuler a continuance to gather evidence, which Shuler requested because he had been in custody since October:

Jackson denied a request made by Shuler that the case be continued after he claimed that his incarceration prevented him from preparing his defense and obtaining certain discovery material, such as a video recording of the incident and copies of arrest warrants.

Now, representing yourself is likely to lead to this sort of result — you're not prepared for trial. But judges are supposed to take steps to protect the rights of pro se defendants. The arrest — and the alleged unlawful resisting of arrest — is less than three months old, and I find it highly dubious and suspicious that a judge would deny a continuance to give Shuler more time to seek discovery and prepare.

Third, it's not clear from the reporting how the prosecution proved the elements of the offense. I'm not talking about my standard skepticism of police claims that a suspect improperly resisted. I'm talking about proving that the arrest was lawful in the first place.

Under Alabama law resisting arrest is an attempt to prevent a lawful arrest. Resisting an unlawful arrest is not, as I understand Alabama law, a violation of the resisting arrest statute. To make a lawful arrest under Alabama law, a peace officer must have an arrest warrant, or must have probable cause to believe the suspect committed a felony, or must observe the suspect commit a crime. Shuler apparently argued at trial that the arresting officer didn't have a warrant and didn't observe any crime, and that therefore the arrest was not lawful and Shuler could not have committed the crime of resisting arrest. That's what his wife argues now. Regrettably the news coverage of the brief bench trial doesn't clarify how the prosecution proved (if it did) that the arrest was lawful in the first place.

The district judge imposed a suspended 90-day jail sentence, meaning Shuler is now incarcerated only on the contempt of court.

In short the coverage of the trial leaves me where I was before: questioning whether the Alabama court system is treating Shuler according to the rule of law, but also suspecting that Shuler is doing everything he can to undermine his own best interests.

Shuler Remains Incarcerated On The Contempt of Court Charges

Back in November, the Alabama court issued a permanent injunction against Roger Shuler forbidding him from saying certain things about the plaintiffs in his case and requiring him to remove certain posts from his blog. The court did so after a hearing that it characterized as a "permanent injunction hearing." As I explained back in November I believe that permanent injunction is a prior restraint in violation of the First Amendment; the cases permitting such prior restraint against defamation generally only do so after a full trial before the correct finder of fact (which should be a jury), not after some mere "hearing." There's nothing extraordinary about this case that should permit departure from that precedent. So unless Shuler somehow waived a trial by jury or consented to resolution of the defamation claim at a hearing — something that's not outside the realm of possibility given his erratic behavior — the injunction seems unlawful.

Yet Shuler remains in jail for contempt of court based on his refusal to comply with the injunction. How long can he stay there? That's complicated.

There are two types of contempt consequences: punitive and coercive. Punitive contempt sanctions punish contempt; coercive contempt consequences seek to force someone to do something. Here's how the Supreme Court described the difference, and the different requirements:

"Criminal contempt is a crime in the ordinary sense," Bloom v. Illinois, 391 U.S. 194, 201 (1968), and "criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings." Hicks v. Feiock, 485 U.S. 624, 632 (1988). See In re Bradley, 318 U.S. 50 (1943) (double jeopardy); Cooke v. United States, 267 U.S. 517, 537 (1925) (rights to notice of charges, assistance of counsel, summary process, and to present a defense); Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 444 (1911) (privilege against self incrimination, right to proof beyond a reasonable doubt). For "serious" criminal contempts involving imprisonment of more than six months, these protections include the right to jury trial. Bloom, 391 U. S., at 199; see also Taylor v. Hayes, 418 U.S. 488, 495 (1974). In contrast, civil contempt sanctions, or those penalties designed to compel future compliance with a court order, are considered to be coercive and avoidable through obedience, and thus may be imposed in an ordinary civil proceeding upon notice and an opportunity to be heard. Neither a jury trial nor proof beyond a reasonable doubt is required.2

Shuler's contempt incarceration is nominally coercive rather than punitive — the Alabama court is putatively seeking to force him to comply with a (questionably lawful) order by imprisoning him until he obeys. That doesn't mean it is without limits. For instance, a court can't imprison you to coerce you do to something that's beyond your power. As the Supreme Court of Alabama said:

Because incarceration on a finding of civil contempt is a sanction coercive in nature and is designed to compel compliance with the court's orders, when the punishment can no longer have any coercive effect it becomes punitive and may no longer be imposed. . . . Because it is impossible to coerce that which is beyond a person's power to perform, once the confinement ceases to have any coercive impact, continued imprisonment for civil contempt constitutes a violation of due process.

Here, Shuler argued that he couldn't take down the blog posts from jail. That might have been grounds to release him, had he not also apparently proclaimed in court that he would not comply with the court's order, rendering the inability moot.

So how long can he be kept in jail? In that same decision quoted about, the Supreme Court of Alabama noted that someone subject to coercive contempt imprisonment "conceivably could have remained incarcerated indefinitely." In many American jurisdictions that's correct — indefinite coercive incarceration is a tool that has led to calls for reform. In that Alabama case — which involved a mother refusing to disclose the location of a son suspected of arson — the Supreme Court of Alabama suggested that a court should revisit the issue:

In cases such as this, after the contemnor has been incarcerated for a substantial length of time, the trial judge should bring the contemnor before him for another due process hearing in which he can reevaluate the factual basis of his first adjudication. If he is satisfied that his determination was correct, he should again incarcerate her. If he is of the opinion that she is telling the truth, of course, he should release her.

Hopefully the Alabama court will revisit Shuler's incarceration. At this point Shuler's options to get out of jail are to comply with the (probably unconstitutional) order or appeal it. Given Shuler's behavior in court, I'm skeptical that he will be able to mount a successful appeal. Telling the court that it's a joke and (incorrectly) that it lacks jurisdiction over you is generally not a recipe for appellate success.

We should be able to look critically both at Roger Shuler's behavior and of the system's treatment of him. Notwithstanding overly credulous coverage (like like Salon article that seems to accept Shuler's characterizations of his behavior uncritically and ignore the evidence of his actual behavior), Shuler remains his own worst enemy. His evasion of service, blogging about the same, and nutty-pro-se refusal to acknowledge the court all impede effective defense of his rights. But even nuts and cranks deserve due process of law; depriving them of it threatens to weaken everyone's rights. I'm troubled by how Shuler's civil and criminal cases were handled.
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Re: Rule of Law, by Ken Paul White (

Postby admin » Sun Jan 19, 2014 8:58 am

The Tomb of the Unknown Document
Oct 28, 2013
By Clark.


Ken noted that prior restraint is unconstitutional, and yet Judge Neilson has restrained a citizen through an order.

Commenter Chris Rodes replied:

"The constitution? How many divisions does it have?"

Another commenter responded:

All of them. Every service member has taken an oath to support and defend the Constitution of the United States, and to follow the lawful orders of the officers placed over them.

This is missing @Chris' excellent point: The phrase "The Constitution", like the phrase "Rule of Law", is a mantra chanted by young and naive libertarians. If saying those magical words helped, we wouldn't need to say those magical words.

In this actual world of realpolitik and cynicism, we need to acknowledge that the Constitution is a prescriptive document, but a descriptive explanation of how shit goes down is that government employees do what they will, and they keep doing it until someone with a bigger stick stops them.

In this case Judge Neilson threw a man in jail, and no matter how many times we chant "Constitution!", that man will stay in jail until the guards release him. Neilson might order the guards to release him…or the guards might get an order from someone they respect or fear more than Neilson. Maybe the appeals court tells the guards to release the prison. Almost certainly the guards would do so, but in the world of realpolitik, maybe they don't…not until the appeals court tells the state police to send 20 men to the prison and remind the guards to release him. Etc.

@Chris Rhodes's stunningly pithy "The constitution? How many divisions does it have?" reminds us that 22,000 patriotic Poles were murdered in a forest and buried in an unmarked grave, and Stalin died in a warm bed. Why? Because when Stalin issued orders, people obeyed.

When Judge Neilson issued orders, people obeyed. The Constitution was violated, an innocent man was hauled off to jail, and for all we know he's being raped daily.

Where's your Constitution now? Its preserved corpse lies in a helium-filled glass sarcophagus in Blue Square, but its soul is buried in an unmarked grave in a forest.

"How many divisions?" indeed.
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