Subcommittee on Administrative Oversight And The Courts Standards To Be Used In Adjudicating Private Claims Bills. The right to petition for redress of grievances is guaranteed by the first amendment to the Constitution. When called upon to decide whether relief should be granted persons seeking redress of grievances, the subcommittee is guided by principles of equity and justice. http://www.gpo.gov/fdsys/pkg/CPRT-107SPRT85736/html/CPRT-107SPRT85736.htm. Although there does not appear to be case law on point in the Ninth Circuit, the Tenth Circuit Court of Appeals has held, in the context [*17] of a First Amendment retaliation claim, "that 'filing a criminal complaint with law enforcement officials constitutes an exercise of the First Amendment right' to petition the government for the redress of grievances." Monte L. Low, Plaintiff, V. City Of Sacramento, Defendant. No. 2:10-Cv-01624 Jam Kjn Ps United States District Court For The Eastern District Of California 2010 U.S. Dist. Lexis 98328 September 16, 2010, Decided September 17, 2010, Filed.  We note preliminarily that an individual's constitutional right of access to the courts is well settled. See Chambers v. Baltimore & Ohio Railroad, 207 U.S. 142, 28 S.Ct. 34, 52 L.Ed. 143 (1907) (deriving such right, in context of analyzing state wrongful death statute, from article four privileges and immunities clause and fourteenth amendment); Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (fourteenth amendment due process clause assures citizens access to courts to present allegations that fundamental constitutional rights have been violated); California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972) (first amendment rights of association encompass right of access to agencies and courts to be heard on applications for operating rights sought by competitors). A deprivation of the constitutional right of access to the courts clearly is actionable under section 1983. See, e.g., Abdul-Akbar v. Watson, 901 F.2d 329 (3d Cir.) (holding that district court's denial of prisoner's sixth amendment right of meaningful access to the courts was actionable under section 1983).

 

§ 1983 will be applied liberally to achieve its goal of protecting official violations of federally protected rights. Dennis v. Higgins, 498 U.S. 439 (1991). To deprive a whole class of the community of this right, to refuse their evidence and their sworn complaints, is to brand them with a badge of slavery; is to expose them to wanton insults and fiendish assaults; is to leave their lives, their families, and their property unprotected by law. It gives unrestricted license and impunity to vindictive outlaws and felons to rush upon these helpless people and kill and slay them at will, as was done in this case. Blyew v. United States, 80 U.S. 581, 598-99 (1871) (Bradley, J., dissenting). See Pollard, The Evolution of Parliament 329-331 (1964). By 1669 the House of Commons had resolved that "it is an inherent right of every commoner of England to prepare and present Petitions to the house of commons in case of grievance," and "That no court whatsoever hath power to judge or censure any Petition presented . . . ." 4 Parl. Hist. Eng. 432-433 (1669). The Bill of Rights of 1689 provided "That it is the right of the subjects to petition the king and all commitments and prosecutions for such petitioning are illegal." Adams & Stephens, Select Documents of English Constitutional History 464. The right to petition for a redress of grievances was early asserted in the Colonies.

 

The American Declaration of Independence lists the English King's "injuries and usurpations," including among them his undermining of the legitimate processes of colonial government, and only then notes, “In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people. The colonists held that tyranny marked a society in which the rulers ignored "a free People." The meaning of petitions and the process of reception made it the capstone grievance in the Declaration and ultimately underlay the inclusion of the Right to Petition as the capstone Right in the First Amendment. Southern Congressmen, acting in behalf of slavery interests, were responsible for the adoption of a “gag order” on further petitions, which, in effect, changed the construction of the Constitution without an Article V Amendment. As a result, the right of petition was collapsed into the right of free speech and expression – an unconstitutional definitional narrowing, which went unchallenged in the courts and persists to this day.

 

See “A Short History of the Right To Petition Government for the Redress of Grievances,” by Stephen A. Higginson, 96 Yale L.J. 142 (1986); “The Bill of Rights as a Constitution,” by Akhil Reed Amar, 100 Yale L.J. 1131 (1991); and “The Vestigial Constitution: The History And Significance Of The Right To Petition,” by Gregory A. Mark, 66 Fordham L. Rev. 2153 (1998). “Petitioning was at the core of the constitutional law and politics of the early United States. That was why it was included in the First Amendment, not as an afterthought, but rather as its capstone… petitioning embodied important norms of political participation in imperfectly representative political institutions…. Petitioning was the most important form of political speech …For individuals and groups, it was a mechanism for redress of wrongs that transcended the stringencies of the courts and could force the government's attention on the claims of the governed when no other mechanism could.” Gregory A. Mark, The Vestigial

 

Constitution: The History And Significance Of The Right To Petition, 66 Fordham L. Rev. 2153, 2157 (1998). (plaintiff’s emphasis).The founder’s intent of the First Amendment petition clause included a governmental duty to consider petitioners' grievances. In its early years, Congress attempted to pass favorably or unfavorably on every petition. See HINDS, PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES § 3361 (1907).

 

There can be no doubt that the petitioning of government was understood to be an inherent Right. That the Framers meant to imply a corresponding governmental duty of a fair hearing seems clear given the history of petitioning in the colonies and the colonists' outrage at England's refusal to listen to their grievances. "In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury." The Declaration of Independence para. 30 (U.S. 1776); see also 1 JOURNALS OF CONGRESS 67-92 (1775) (petition to King); id. at 117-18 (resolution protesting Parliament's interference with right of petition); 2 JOURNALS OF CONGRESS 158-62 (1777) (petition to King).“The original character of the right to petition may impose an untenable restraint on the autonomy and agenda setting power of the federal legislature. But until this conclusion is made, court opinions will appear to rest not on the Framers' intent, but on deference to the resolve of antebellum Congresses to defeat a right which threatened the institution of slavery.” Higginson, 96 Yale L.J. 142, 166.

 

Before a First Amendment right may be curtailed under the guise of a law, such as “willful failure to file” or promotion of an illegal tax shelter,” any evil that may be collateral to the exercise of the right, must be isolated and defined in a "narrowly drawn" statute (Cantwell v. 43 Connecticut, 310 U.S. 296, 307) lest the power to control excesses of conduct be used to suppress the constitutional right itself. See Stromberg v. California, 283 U.S. 359, 369; Herndon v. Lowry, 301 U.S. 242, 258-259; Edwards v. South Carolina, 372 U.S. 229, 238; N. A. A. C. P. v. Button, 371 U.S. 415, 433.

 

The right to petition for the redress of grievances has an ancient history and is not limited to writing a letter or sending a telegram to a congressman; it is not confined to appearing before the local city council, or writing letters to the President or Governor or Mayor. See N. A. A. C. P. v. Button, 371 U.S. 415, 429-431. 18 USCS § 241 guarantees safety and protection of persons in the exercise of Rights dependent on the Constitution. Bergman v United States (1983, WD Mich) 565 F Supp 1353, 37FR Serv 2d 442, supp op (1984, WD Mich) 579 F Supp 911, later proceeding (1986, WD Mich) 648 F Supp 351, 6 FR Serv 3d 803, later proceeding (1988, CA6 Mich) 844 F2d 353, 10 FR Serv 3d 625. The purpose of 18 USC 241 is to protect rights and privileges of citizens under the Constitution and laws of United States. Williams v United States (1950, CA5 Fla) 179 F2d 644, affd (1951) 341 US 70, 95 L Ed 758, 71 S Ct 581 (ovrld by United States v Price (1966) 383 US 787, 16 L Ed 2d 267, 86 S Ct 1152) as stated in United States v McDermott (1990, CA2 NY) 918 F2d 319, cert den (1991, US) 114 L Ed 2d 76, 111 S Ct 1681. 18 USCS § 245 removes any doubt as to protection that would be extended against private interference with certain specific rights enumerated in § 245. United States v Pacelli (1974, CANY) 491 F2d 1108, cert den (1974) 419 US 826, 42 L Ed 2d 49, 95 S Ct 43 and appeal after remand (1975, CA2 NY) 521 F2d 135, cert den (1976) 424 US 911, 47 L Ed 2d 314, 96 S Ct 1106.

 

Conspiring to deprive citizens of their civil rights in violation of 18 USCS § 241 is a crime of violence within the meaning of 18 USCS § 924(c), since it creates substantial risk of violence. United States v Greer (1991, CA5 Tex) 939 F2d 1076, 36 Fed Rules Evid Serv 168, reh, en banc, gr (1991, CA5 Tex) 948 F2d 934 and reinstated, in part, on reh, en banc (1992, CA5 Tex) 968 F2d 433, reh den (1992, CA5) 1992 US App LEXIS 23160 and cert den (1993, US) 122 L Ed 2d 764, 113 S Ct 1390. The Court reasoned that a state government official will be deemed to be “stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct.”[ Ex Parte Young, 209 U.S. 123, 160 (1908)] Although the official’s action is a state action for purposes of the Fourteenth Amendment, the action is not an action of the state under Eleventh Amendment. Thus, the state’s Eleventh Amendment immunity is maintained while at the same time allowing a suit against the state official to enforce the Fourteenth Amendment guarantees.

 

The right to petition is one of the fundamental freedoms of all Americans, and is documented in the First Amendment to the Constitution of the United States.   The First Amendment consists of five “freedoms,” which are: Religion, Free Speech, Free Press, Assembly, and Petition.  The Petition section of the first amendment, also commonly referred to as the Petition Clause, states that “People have the right to appeal to government in favor of or against policies that affect them or in which they feel strongly.  This freedom includes the right to gather signatures in support of a cause and to lobby legislative bodies for or against legislation,” (Copley First Amendment Center) (2).  A more simple definition of the right to petition, is “the right to present requests to the government without punishment or reprisal.  This right is guaranteed in the First Amendment to the U.S. Constitution” (History Central, 1).  Looking at the specific definition of the word petition, as it relates to the freedom of petition and the First Amendment, the word can be used to describe “any nonviolent, legal means of encouraging or disapproving government action, whether directed to the judicial, executive or legislative branch.  Lobbying, letter-writing, e-mail campaigns, testifying before tribunals, filing lawsuits, supporting referenda, collecting signatures for ballot initiatives, peaceful protests and picketing: all public articulation of issues, complaints and interests designed to spur government action qualifies under the petition clause…” (Copley First Amendment Center) (1) The right to petition government is a freedom that has been firmly upheld by the Supreme Court of the United States on countless occasions, proving that it is considered an inalienable right by the U.S. Government. By the seventeenth century, monarchical challenge to a petition was defended on the basis that petitioning was an ancient right. See J.E.A. Jolliffe, The Constitutional History of Medieval England: From the English Settlement to 1485, at 405 (4th ed. 1961); see also K. Smellie, Right of Petition, in 12 Encyclopedia of the Social Sciences 98 (1934). In Adderley v. Florida, Supreme Court Justice Douglas wrote: The historical antecedents of the right to petition for the redress of grievances run deep, and strike to the heart of the democratic philosophy. C. 61 of the Magna Carta provided: “That if we or our justiciar, or our bailiffs, or any of our servants shall have done wrong in any way toward any one, or shall have transgressed any of the articles of peace or security; and the wrong shall have been shown to four barons of the aforesaid twenty-five barons, let those four barons come to us or to our justiciar, if we are out of the kingdom, laying before us the transgression, and let them ask that we cause that transgression to be corrected without delay.” Sources of Our Liberties 21 (Perry ed. 1959).

 

The Supreme Court has stated that all of the First Amendment rights are "inseparable" and derive from the same ideals of individual liberty. As a general principle, the court has held that governmental action restricting the First Amendment freedoms must be justified by a clear and present danger to a legitimate public interest, and not merely by the rational basis, which would be sufficient to meet constitutional requirements of due process. For instance, in West Virginia State Bd. of Education v Barnette (1943) 319 US 624, 87 L Ed 1628, 63 S Ct 1178, 147 ALR 674, the court held that the First Amendment freedom of assembly may not be subjected to any and all restrictions which a legislature may have a "rational basis" for adopting, as would be true of the right to due process, but may be restricted only in order to prevent grave and immediate danger to interests which the state may lawfully protect. Similarly, the court in Thomas v Collins (1945) 323 US 516, 89 L Ed 430, 65 S Ct 315, 15 BNA LRRM 777, 9 CCH LC P 51192, reh den 323 US 819, 89 L Ed 650, 65 S Ct 557, held that any attempt to restrict the liberties of speech and assembly must be justified by a clear public interest, threatened not doubtfully or remotely but by a clear and present public danger, actual or intended, and that more of a connection between the remedy provided and the danger to be curbed is required in this context than would be necessary to support legislation against attack on due process grounds. It is therefore in our tradition, the Supreme Court added, to allow the widest room for discussion and the narrowest range for its restriction, particularly when this right is exercised in conjunction with peaceable assembly and petition.

 

See Wesley N. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning 35-38 (Walter W. Cook ed., Greenwood Press 1978) (1919); see also Sheldon Nahmod, Constitutional Damages and Corrective Justice: A Different View, 76 Va. L. Rev. 997, 1011 (1990) (“‘The plaintiff’s [constitutional] right to be free of wrongful [unconstitutional] interferences with his person and property is correlative to the [constitutional]duty on the defendant to abstain from such [unconstitutional] interferences.’”) (quoting Ernest J. Weinrib, Causation and Wrongdoing, 63 Chi.-Kent L. Rev. 407, 430 (1987)) (alterations in original).

 

The worst forms of government misconduct—acts that are clearly unreasonable, malicious or reckless—are beyond the scope of a state official’s authority because no state would ever explicitly authorize such behavior courts to establish constitutional rights that protect individuals from governmental injury and regulate the government’s power to inflict harm. The current concept of individual harm is an integral part of many constitutional rights. Rather than having a wholly negative effect on the reach of constitutional rights, the constitutional tort remedy contributes to a broader process of rights definition where abstract constitutional provisions are translated into terms relevant to the injuries of individuals.  In a number of cases, constitutional tort actions have helped define rights that protect individuals from injury while regulating the government’s power to inflict injury. In analyzing some examples of such cases, we find that the constitutional tort action has influenced the shape of constitutional rights in three overlapping ways: (1) by prompting courts to translate broadly worded constitutional provisions into particular individual rights; (2) by defining certain constitutional rights in a different way than state common law; and (3) by incorporating the extent and magnitude of individual injury into the substance of constitutional rights.  Municipal Court Bulletin Letter No. 68, p. 2, September 29, 1961.Although the clerks and deputy clerks are appointed by the governing authorities, as are most of the municipal court judges, 3 there is no question that the branch of government to which a clerk or deputy clerk is [***8] responsible is the judiciary. Cf.

 

"The assertion of federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice." Davis v. Wechsler, 263 US 22, at 24. "Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them." Miranda v. Arizona, 384 US 436, 491. We have made clear in Price that, when § 241 speaks of "any right or privilege secured . . . by the Constitution or laws of the United States," it means precisely that. United States v. Guest - 383 U.S. 745 (1966). The key federal criminal statute makes it unlawful for anyone acting with government authority to deprive or conspire to deprive another person of any right protected by the Constitution or laws of the United States (18 U.S.C. § 241). Another statute, commonly referred to as the misconduct provision, makes it unlawful for state or local police to engage in a pattern or practice of conduct that deprives persons of their rights (42 U.S.C. 14141 [2000]). Official misconduct is unacceptable under any circumstances and violates a citizen’s civil rights.

 

18 U.S.C. § 241, making it a felony to conspire to interfere with a citizen in the free exercise or enjoyment of any right secured or protected by the Constitution or laws of the United States. 18 U.S.C. 241 states: “If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District 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. Conspiring to deprive citizens of their civil rights in violation of 18 USCS § 241 is a crime of violence within the meaning of 18 USCS § 924(c), since it creates substantial risk of violence. United States v Greer (1991, CA5 Tex) 939 F2d 1076, 36 Fed Rules Evid Serv 168, reh, en banc, gr (1991, CA5 Tex) 948 F2d 934 and reinstated, in part, on reh, en banc (1992, CA5 Tex) 968 F2d 433, reh den (1992, CA5) 1992 US App LEXIS 23160 and cert den (1993, US) 122 L Ed 2d 764, 113 S Ct 1390. 18 USCS § 241 guarantees safety and protection of persons in the exercise of Rights dependent on the Constitution. Bergman v United States (1983, WD Mich) 565 F Supp 1353, 37FR Serv 2d 442, supp op (1984, WD Mich) 579 F Supp 911, later proceeding (1986, WD Mich) 648 F Supp 351, 6 FR Serv 3d 803, later proceeding (1988, CA6 Mich) 844 F2d 353, 10 FR Serv 3d 625. The purpose of 18 USC 241 is to protect rights and privileges of citizens under the Constitution and laws of United States. Williams v United States (1950, CA5 Fla) 179 F2d 644, affd (1951) 341 US 70, 95 L Ed 758, 71 S Ct 581 (ovrld by United States v Price (1966) 383 US 787, 16 L Ed 2d 267, 86 S Ct 1152) as stated in United States v McDermott (1990, CA2 NY) 918 F2d 319, cert den (1991, US) 114 L Ed 2d 76, 111 S Ct 1681. "To act under color' of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents." Pp. 383 U. S. 794-795. Page 383 U. S. 788. The wording of § 241 suggests no limitation of its coverage to exclude Fourteenth Amendment rights. "The language of § 241 is plain and unlimited. . . . [I]ts language embraces all of the rights and privileges secured to citizens by all of the Constitution and all of the laws of the United States." P. 383 U. S. 800. The legislative history of § 241 supports the view that it was intended to encompass Fourteenth Amendment rights within its protection. Pp. 383 U. S. 800-806.[1] See United States v. Guest - 383 U.S. 745 (1966). The allegation in the indictment of state involvement in the conspiracy charged under § 241 was sufficient to charge a violation of rights protected by the Fourteenth Amendment. Pp. 383 U. S. 753-757. (a) Section 241 includes within its coverage Fourteenth Amendment rights whether arising under the Equal Protection. Page 383 U. S. 746. Clause, as in this case, or under the Due Process Clause, as in United States v. Price, post, p. 383 U. S. 787. P. 383 U. S. 753. (b) As construed to protect Fourteenth Amendment rights § 241 is not unconstitutionally vague, since, by virtue of its being a conspiracy statute it operates only against an offender acting with specific intent to infringe the right in question (Screws v. United States, 325 U. S. 91) and the right to equal use of public facilities described in the indictment has been made definite by decisions of this Court. Pp. 383 U. S. 753-754. (c) The State's involvement need be neither exclusive nor direct in order to create rights under the Equal Protection Clause. P. 383 U. S. 755-756.[2]

 

18 USC § 242 - Deprivation of rights under color of law: Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens. For the purpose of Section 242, acts under "color of law" include acts not only done by federal, state, or local officials within the their lawful authority, but also acts done beyond the bounds of that official's lawful authority, if the acts are done while the official is purporting to or pretending to act in the performance of his/her official duties.

 

42 USC § 1983 - Civil action for deprivation of rights: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

 

Title 42, U.S.C., Section 14141 makes it unlawful for state or local law enforcement agencies to allow officers to engage in a pattern or practice of conduct that deprives persons of rights protected by the Constitution or U.S. laws. This law, commonly referred to as the Police Misconduct Statute, gives the Department of Justice authority to seek civil remedies in cases where law enforcement agencies have policies or practices that foster a pattern of misconduct by employees. This action is directed against an agency, not against individual officers. The types of issues which may initiate a pattern and practice investigation include: Lack of supervision/monitoring of officers’ actions; Lack of justification or reporting by officers on incidents involving the use of force; Lack of, or improper training of, officers; and Citizen complaint processes that treat complainants as adversaries.

 

The Crime Victims' Rights Act of 2004, 18 U.S.C. § 3771 provides that officers and employees of the Department of Justice shall make their best efforts to see that crime victims are notified of, and accorded, the following rights:

• The right to be reasonably protected from the accused.

• The right to reasonable, accurate, and timely notice of any public court proceeding, or any parole proceeding, involving the crime or of any release or escape of the accused.

• The right not to be excluded from any such public court proceeding, unless the court, afer receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding.

• The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding.

• The reasonable right to confer with the attorney for the Government in the case.

• The right to full and timely restitution as provided by law.

• The right to proceedings free from unreasonable delay.

• The right to be treated with fairness and with respect for the victim’s dignity and privacy.

 

18 USC § 3041 - Power of courts and magistrates

 

For any offense against the United States, the offender may, by any justice or judge of the United States, or by any United States magistrate judge, or by any chancellor, judge of a supreme or superior court, chief or first judge of the common pleas, mayor of a city, justice of the peace, or other magistrate, of any state where the offender may be found, and at the expense of the United States, be arrested and imprisoned or released as provided in chapter 207 of this title, as the case may be, for trial before such court of the United States as by law has cognizance of the offense. Copies of the process shall be returned as speedily as may be into the office of the clerk of such court, together with the recognizances of the witnesses for their appearances to testify in the case.

A United States judge or magistrate judge shall proceed under this section according to rules promulgated by the Supreme Court of the United States. Any state judge or magistrate acting hereunder may proceed according to the usual mode of procedure of his state but his acts and orders shall have no effect beyond determining, pursuant to the provisions of section 3142 of this title, whether to detain or conditionally release the prisoner prior to trial or to discharge him from arrest.