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5 April A.D. 2010 In the story below, note the reference(s) to the Constitution. There ARE limits on search, and those limits DO come with "constitutional" labels. But, it matters tremendously that we realize that those limits exist because the Supreme Court says so, not because the "Constitution" says so. The limit here is one of a warrantless search. Warrantless searches happen all the time, but there must be consent. Consent has to be voluntary; it can't be coerced or compelled. The focus here is on coercion, and it's an excellent point to raise. The executive authority was embarrassed as all hell being kept outside for 40 minutes by these people! The most important lesson of all is that one: stand your ground. As we learn more and more how "consensual" "all" "authority" used against us is, we'll develop more and more confidence to stand our ground. Another excellent point raised is what constitutes probable cause. The key thought on that point is highlighted in blue. Is the problem the "out-of-date" nature of the tip, or the fact that it's anonymous? Even a current tip that anonymous is not adequate probable cause. The "out-of-date" part also eliminates the "exigent circumstance" exception that can allow a warrantless entry/search. Where a couple is "licensed" to make babies for STATE OF ________ (there is no other reason to get a "marriage license" than to engage in the line of commerce of making babies for STATE OF ________), STATE has an (ownership) interest in the children. However, the purpose of this visit by the executive authority wasn't based on behavioral issues of parent/child. It was based on safety issues of the premises. And, there were no witnesses; just an anonymous tip. Consider the ramifications of carte blanche entry by anyone or anything (at any time) on an alleged anonymous tip about a safety problem with the premises. Every home with kids would be subject to ad hoc entry/search just because some "authority" or other wanted to do that entry/search, and how difficult is it to hypothecate an anonymous tip?! In this exact same line of thought, consider the ramifications of entry/search/seizure of "minors" consuming alcohol inside the house. Remember the case out of Tennessee where the Iraq War veteran, 20 years old, was drinking a beer with his Dad in the house with the police showed up at the wrong house in the middle of the night? They didn't consent to entry. The "cover" for that blatant error by the "executive authority" (i.e., police) was to arrest the Iraq War veteran for underage consumption of alcohol. If it were lawful to charge minors with underage consumption of alcohol inside a residence, especially their own, then, again, every home with a kid it in is subject to instant search under the disguise of "possible underage consumption by a minor." There are limits on search. Even where STATE has a commercial interest in the matter, i.e., the couple is "licensed" to make babies for STATE OF ________, there are limits on search. Criminal acts are an ancient basis for commercial (civil) suits. What the trial judge has told those defendants is that he sees criminal conduct here by these defendants, because that's about the only thing that trumps "immunity." Denial of immunity is an immediately reviewable issue. If there is an appeal, we'll see how these limits on search hold up. Harmon L. Taylor Legal Reality Dallas, Texas Subscribe / unsubscribe : [email protected] -------- Original Message --------
http://www.wnd.com/index.php?fa=PAGE.view&pageId=135893 Judge says threats to confiscate children may be coercion Homeschool family's case against sheriff's office, social services advanced Posted: April 04, 2010 6:00 pm Eastern By Bob Unruh © 2010 WorldNetDaily An Arizona homeschool family's constitutional lawsuit against authorities – including sheriff's deputies, social service workers and even an assistant attorney general – has been advanced by a judge who ruled that a threat to take the family's children into custody could have been perceived as coercion. It was the second straight strike against authorities who went to the home of John and Tiffany Loudermilk in 2006. WND has previously reported on the case, including when a judge ruled social workers must respect the U.S. Constitution regarding privacy and parental rights. The court decisions have focused on arguments by deputies and social workers, who contend they shouldn't be held liable for their actions. Earlier, the court ruled that social workers, accompanied by Maricopa County deputy sheriffs, made unsupported threats to place a family's children in custody and arrest the parents if they were not allowed to make what ended up being an allegedly illegal search of the family's home. U.S. District Judge Earl H. Carroll at that point ordered that a lawsuit by the family against the social workers and sheriff would be allowed to continue, because the social workers' concerns were based on "an anonymous tip that the … Loudermilk children were being neglected and that plaintiffs' home was uninhabitable." However, the judge said that under federal law, an anonymous tip, "without more, does not constitute probable cause." The Loudermilk's are members of the Home School Legal Defense Association, a Virginia-based organization leading their defense. "Social workers and sheriff's deputies had come to the home … demanding entry based on a six-week-old anonymous tip that the newly constructed home was unsafe for children," the organization said. Now in a ruling this week, the judge in the case denied a state motion for summary judgment, stating, "The disputed questions of fact on these [consent] issues ... preclude summary judgment." The ruling means a jury must decide whether the Loudermilks were coerced into allowing social workers and deputies into their home. The lawsuit dates to March 3, 2006, and the state was trying, according to the HSLDA, to convince the judge that the social workers and deputies were immune from litigation because the family "voluntarily" allowed the investigators into the home. The HSLDA said, however, that "assertion ... ignores the fact the social worker had said the Loudermilk children would be removed for 72 hours if the parents did not permit entry." "We are grateful that the judge is taking this matter seriously and making sure that a family's right to be together is protected," said Darren Jones, staff attorney with HSLDA. "The Loudermilks are doing a service to all families by their willingness to stand up against unjustified state intervention, not just at the initial contact, but for the four years this case has been going on." A 2008 analysis of the arguments by HSLDA noted the confrontation between social service agency staff members and the family developed when authorities went to the family's home and demanded entry. Their reason was a six-week-old anonymous tip that the brand new home was unsafe for children. The HSDLA analysis then said, "After an escalating confrontation at the front door that lasted 40 minutes, the social workers, backed by no fewer than four deputies, threatened to take the Loudermilks' children into custody and place them in foster care if the Loudermilks continued to deny them entry into their home. An assistant attorney general repeated this threat to HSLDA Attorney Thomas Schmidt, who was assisting the Loudermilks by phone during the confrontation. "Under this duress, Mr. and Mrs. Loudermilk allowed the social workers and sheriff's deputies inside. Within five minutes, the social workers determined that the anonymous tip was false and left," the analysis said. The family's subsequent lawsuit filed by the HSLDA alleged violations of the Fourth and 14th Amendments. The lawsuit names Maricopa County Sheriff Joe Arpaio, deputies Joshua Ray, Joseph Sousa, Richard Gagnon and Michael Danner, social workers Rhonda Cash and Jenna Cramer, and Assistant Attorney General Julie Rhodes. The judge, in handing authorities their previous courtroom loss, noted that the social workers misrepresented that they had a court order for an inspection of the home. He also noted the deputies were uncooperative, refusing to provide their cell phone number so the HSLDA attorney could talk to them. The judge ruled then verbal threats generally are not actionable in a federal civil rights proceeding, but in this case, "courts have held that a threat constitutes an actionable constitutional violation in certain circumstances, including 'when the threat is so brutal or wantonly cruel as to shock the conscience.'" Related offers: "Christianity and the American Commonwealth" "The Marketing of Evil: How Radicals, Elitists, and Pseudo-Experts Sell Us Corruption Disguised as Freedom" "Back Fired," by William J. Federer, shows how the faith that gave birth to tolerance is no longer tolerated! 'Shooting Back' tells of lives saved from attackers "LAW-LESS: Why many Americans fear attorneys and judges more than terrorists" Hillary stars in 'Help! Mom! There are Liberals Under My Bed' "The Harsh Truth About Public Schools" "Fish Out of Water: Surviving and Thriving as a Christian on a Secular Campus" Related stories: Court rules social workers must follow law State backs off attack on homeschool mom Mom accused of neglect for teaching own kids American missionaries targeted for deportation Court gives Melissa back to family Western homeschoolers need political asylum from democracy 3 families face fines, frozen accounts 5 'well-educated' kids put in state custody Related commentary: Constitutional amendment for homeschoolers? Bob Unruh is a news editor for WorldNetDaily.com. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ In accordance with Title 17 U.S.C. Section 107, any copyrighted work in this message is distributed under fair use without profit or payment for non-profit research and educational purposes only. 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