Sunday, August 27, 2006

People of the Lie

Is God a Psychotherapist?
M. Scott Peck's People of the Lie explores the dimensions of human and satanic evil.
by Ben Patterson | posted 09/28/2005 02:15 p.m.


... Peck's thesis is simple: There really is such a thing as human evil, and it has certain definable characteristics. What is evil? ... According to Peck, it is the persistent and accumulative refusal of the evil person to face the truth about himself. He may admit publicly that, of course, he is a sinner just like everyone else. But deep down inside he does not believe it. So rather than face up to his own sin he is constantly scapegoating: laying it on other people, making his faults theirs. Evil people are masters of disguise, morally. They are constantly dodging their conscience. In other words, evil people are liars. Hence the title of the book.

... Peck observes that rarely will evil people turn up in psychotherapy. This is because psychotherapy is what he calls the "light-shedding process par excellence." Evil, by definition, avoids the light. So the persons who end up in the therapist's office are not usually the truly evil ones, but the victims of someone else's evil.

... Where and how does the Devil figure in all this? Peck is not sure. He writes, "Perhaps it will forever be impossible to totally discern exactly where the human Shadow leaves off and the Prince of Darkness begins." His tentative conclusion is that the Devil has very little to do with evil in everyday life. Most of us do not have to be recruited to do his work; we recruit ourselves.

Copyright © 2005 Christianity Today. Click for reprint information.


.... Peck goes on to delineate the face of evil, to show what evil looks like. His contention is that evil does not often look like what we expect; those who are most evil will often appear most “together” or wholesome at first glance. ... He states: “In addition to the abrogation of responsibility that characterizes all personality disorder, this one would specifically be distinguished by: (a) consistent destructive, scapegoating behavior, which may often be quite subtle. (b) Excessive, albeit usually covert, intolerance to criticism and other forms of narcissistic injury. (c) Pronounced concern with a pubic image and self-image of respectability, contributing to a stability of life-style but also to pretentiousness and denial of hateful feelings or vengeful motives. (d) Intellectual deviousness, with an increased likelihood of a mild schizophreniclike disturbance of thinking at times of stress.


The malignant narcissist is more than immoral, she is evil. In his book, People of the Lie, Peck proposed to the psychological profession a new diagnostic category of the “evil personality disorder” (EPD) as a sub-type of NPD. As he put it, “The evil are ‘the people of the lie,’ deceiving others as they also build layer upon layer of self-deception.” And when the narcissist intentionally hurts another, she has crossed the line from being an NPD to being an EPD. In Peck’s words, “evil individuals will flee self-examination and guilt by blaming and attempting to destroy whatever or whoever highlights their deficiencies.”


Saturday, August 26, 2006

The HeeBee JeeBee Test and Sociopathic Clients

NOTE: I frequently use my blog as a sort of scrapbook where I paste items I find of particular interest. I found this item to be particularly interesting and re-posted it here. Apparently, a lot of you have too since the "hit statistics" on this page tell me that this is the single most read article on my blog and that it continues to receive a large number of hits months after it was posted. This article is the work of an attorney named Norm Pattis who maintains a truly fascinating blog called Crime and Federalism which can be found at:


Civil rights and criminal law, federalism, and Section 1983

« Morning Jitters | Main | An Occupational Test »
November 21, 2005
The Hee-Bee Jee-Bee Test

I am going to lower my guard this evening and give away a million, no make that a billion, dollars worth of legal advice. The topic? A new standard for lawyers to use when selecting clients. Call it the Hee-Bee Jee-Bee Test.

What is that?

I am talking about the client who simply gives you the creeps. You know the type. The injured, angry, pissed off, ornery cuss of client who has been waiting, hoping, praying for a lifetime for someone to commit a tort, any tort will do, against them. Armed with this tort, this anger addicted fiend of a plaintiff will demand the scortching of any Earth within one thousand miles of their rubbed raw hang nail. If you don't entertain every morbid fantasy they advance, expect a grievance to the bar and endless angry letters and complaints. This client has been waiting forever for something to blame their failures on. Pity the poor defendant who crosses their path. And pity the lawyer who champions their case. These clients, my friends, will suck the life out of you.

Don't tell me you don't know what I am talking about. Each year the bar belches forth a new class of lawyers; we add them faster than they die off. Lawyers need cases or controversies to survive. As the number of lawyers grows, plaintiffs' lawyers reach ever deeper into the cesspool of human need to find clients. Is it any wonder that the courts are filled to overflowing with litigation that would better be treated with Prozac, Thorazine or some other radical therapy?

A lawyer's best friend is not an advertisement; it is his or her credit line -- the necessary vehicle to survive the periodic lull in cases of merit. Lawyers without credit lines make mistakes. They dive at cases presented by histrionic monsters, sociopathic ghouls and clients who have waited a lifetime for some cause, some controvery, that would make the entire world stop for a moment to note just how special, injured and aggrieved they are. Lawyers mistakenly dive at such clients because a payroll must be met, a bill must be paid. Buy such a client and watch your life swallowed by the sort of howling ghosts suitable only for Dante's Inferno.

So herewith a new test for evaluating clients. Call it the Hee-Bee Jee-Bee Test. What are the Hee-Bee Jee-Bees? Simply this: A sense that this client is trouble, their need infinite, their anger boundless. The client is of a sort that expects the President of the United States to answer their letter. They write to their Governor requesting relief. They request that a Congressman filibuster the nation to a standstill to assuage their pain. In sum, they expect the world to stop simply because they are angry. Such a client knows no boundaries. Avoid them like the plague. Better debt than pissing into the infinite maw of sociopathic need.

The law, for all its shortcomings, is an an exacting discipline. Proximate cause teaches us the limitations of foreseeability. Doctrine limits expectations. The angry client sees not any limitation to their hopes and claims. Try explaining the concept of compensatory damages to a mama's boy persuaded that he's entitled to millions for a garden variety tort. C'mon, fess up, plaintiff's bar, we have handled scores of these files, each sucking us dry.

I am a plaintiff's lawyer. I am a succsessful plaintiff's lawyer. But, perhaps this is too much to assert -- I am an honest plaintiff's lawyer. I favor as a matter of policy liberal rules requiring a plaintiff to pay sanctions for a claim brough without merit. A plaintiff who imposes unneeded expense on a defendant should reimburse the defendant.

Herewith some simple suggestions:

1. Liberalize the use of independent medical examinations for plaintiffs claiming emotional distress. Let's see whether the defendant's conduct caused injury, or whether the plaintiff was a walking wound wainting to inflict itself on the first person he or she could tag with a suit.

2. Expand Rule 11 type sanctions on lawyers. Make lawyers accountable for the cases they bring. If a lawyer discovers a claim lacks merit, why should the lawyer advance it at the defendant's expense?

3. Make it easier for lawyers to withdraw when they discover that the client's claims lack merit. Many lawyers now fight bad cases to the end as a matter of defensive lawyering. Why shouldn't a lawyer be permitted to withdraw once he realizes his client is playing with something less than a full deck?

We are our client's advocates, but we are also officers of the court. I say take greater pains in avoiding clients whose personal "issues" far transcend the case or controversy they implore you to take. Why? It is wasteful of your time and talents to serve the irrational anger of the sociopath. Some of the most expensive mistakes I ever made came after accepting a retainer from a client who gave me the Hee-Bee Jee-Bees -- that gnawing sense that the person sitting across from me was a resident of a foreign world governed by anger and paranoia.

It is better to be in debt to a bank than to owe your time and skill to a client who whould better be served by a psychiatrist.

Thursday, August 24, 2006

Opala Case Going to SCOTUS

Judge pursues discrimination suit

By John Greiner
The Oklahoman

Oklahoma Supreme Court Justice Marian Opala is taking his age discrimination legal battle against his fellow justices to the U.S. Supreme Court, his attorneys said in a prepared statement Wednesday.

Last month the 10th U.S. Court of Appeals dismissed Opala's lawsuit against the other justices. The lawsuit grew out of a rule change that Opala said kept him from becoming chief justice in 2005.

The rule change occurred Nov. 4, 2004, and Opala filed a lawsuit in federal court against the other eight justices in January 2005.

The rule change allowed Chief Justice Joseph Watt to serve a second, two-year term. Opala, who has served as chief justice before, was scheduled to be chief justice again under a longstanding rule that was replaced by a new rule.

In past years, some justices have served more than one term but not a consecutive term.

The law firm of Ward & Glass issued a news release stating, "our sole concern is for Justice Opala's loss of opportunity as well as for Oklahoma's institutional interest in having an order of the court leadership succession that is unclouded by failure to conform to the requirements of the federal constitution."

Opala referred questions to his attorney, Stan Ward, who was unavailable for comment.

The statement from the law firm said, "In this quest for correction no money damages are sought."

The U.S. Supreme Court will be asked to review the 10th Circuit ruling, the law firm said.


I have heard but cannot prove that His Honor was active in the Polish Resistance movement during WWII, escaped to England and then volunteered to be parachuted back in. I have also heard that he was befriended by an Oklahoma soldier who helped him come to Oklahoma after the war. But, regardless of the rumors, Justice Marion Opala is one of those rare men of the law who understands the dangers of an overreaching burueacracy, especially when it come to the law and lawyers and is not afraid to say so from the bench. For example:

Opala, J., dissenting.

¶1 Today’s ruling – that certain respondent’s communications with his client violated Rule 8.4(e)1 – offends the free speech guarantee of Art.2 § 22, Okl. Const.2 Respondent may not be disciplined for utterances that so clearly fall within the rubric of protected political speech.3 For an analysis of the balance between attorneys’ speech and First Amendment rights see The First Amendment and Attorney Discipline for Criticism of the Judiciary: Let the Lawyer Beware, 15 N.Ky.L.Rev. 129 (1988). Section 22, whose [29 P.3d 557] language has an even broader sweep than that of the First Amendment,4 absolutely shields the expressions which form the basis of this proceeding.

¶2 I do not suggest that a lawyer may not be disciplined for soliciting, accepting or requesting a bribe. I would gladly join the court if these were indeed the facts in this case. It is one thing for a lawyer to state (or imply) to a client that he has the ability to influence a district attorney and then offer to do so; it is quite another for a lawyer not to rule out that a district attorney (or any other government official) might be subject to improper influences. There is no affirmative proof here that respondent ever intended to participate in any illegal conduct – a view which both the PRT panel and this court share. Respondent’s failure firmly to reject the possibility of government corruption is undoubtedly protected by national and state free-speech guarantees. As a comment on the operation of governmental affairs, the matter plainly lies at the heart of political speech.5

¶3 By accepting a license to practice law, Bar members are required no more than to conduct themselves in a manner that is consistent with lawful behavior and be compatible with orderly administration of judicial process;6 they are neither expected nor required to relinquish fundamental constitutional freedoms. The court’s pronouncement imposes upon a licensed Oklahoma legal practitioner the affirmative duty to stand "four square" for the purity of criminal law enforcement process and to whitewash it even when a doubt may exist. The lawyer is forced affirmatively to assert that all is well with the prosecutorial service; he is free neither to suspect nor to be apprehensive that, in fact, things are not so well. Implicit in the expected affirmations is the disturbing notion that lawyers must serve as enthusiastic cheerleaders for the government. I view § 22 as commanding the government to maintain the very same neutrality that the U.S. Supreme Court has found to be embodied in the First Amendment’s protection of free expression.7 Had respondent been vocally denying the possibility of any corruption in the prosecutor’s office, no disciplinary action would likely have followed and this case would not have been called to our attention.

¶4 By counseling the court that respondent’s comments are indeed shielded, I do not mean to condone his failure affirmatively to state that he would not participate in any improper action. What I emphatically and firmly advance is that professional discipline should not be invoked to chill free speech. Today’s opinion places a higher burden on a practitioner than any licensed legal professional may be required to bear in the constitutional order of our free society.

¶5 Lawyers are not government mouthpieces to be programmed for incantation of an absolution mantra that will sanctify officialdom in power.8 The court’s pronouncement reduces them to the very same status they were forced to endure in the most repressive totalitarian regimes of yesteryear’s Europe. I cannot countenance a decisional [29 P.3d 558] course that turns the Bar into mindless champions for government-dictated orthodoxy.

Opala Dissenting, STATE ex. rel. OKLAHOMA BAR ASS'N v. ERICKSON, 2001 OK 66

Saturday, August 19, 2006

Whatever Happened To Old ___ ?

People have a tendency to view litigation, especially precedent setting litigation, melodramatically. It's all black and white. The good guys are all perfect and the bad guys are all scum. Just exactly who is who depends on which side you're rooting for. However, in the real world, people are people and frequently, they are the same after a monumental trial and decision as they were before it. In two of our most well known Supreme Court cases this fact is born out by later events. Ernesto Miranda, to whom we owe the "Miranda Warning" died in a bar fight a few years later. Clarence Earl Gideon to whom we owe the now established tradition of court appointed counsel for the indigent, died a drunk just as he had lived.



In 1970, after Miranda had served one third of his sentence, he became eligible for parole. He was refused parole four times but was finally paroled in December 1972. In the meantime, Mary Smith, her husband and child had moved away from Phoenix. Twila Hoffman had also moved away.

If Ernest Miranda ever had any ambition, he lost it all in jail. Once he was out on parole, he became a sort of police groupie, hanging around the police station and the court house and acting like a celebrity mascot. At one point, he even sold autographed Miranda warning cards for $1.50 each.

Eventually, he violated parole and was returned to prison for illegal possession of firearms and possession of amphetamines.


It is now January 31, 1976. Ernest Miranda is out of jail and has stopped by La Amapola, a bar in the Deuce section of Phoenix. He is playing poker with two Mexican illegal aliens. All three have been drinking. A remark is made about cheating and a fight breaks out. Miranda beats up one of the aliens and then goes into the men's room to wash the blood off his face and hands.

One of the aliens gives the other one his knife, a mean looking instrument with a six inch hooked blade used for cutting lettuce. He says, "Finish it with this." Miranda comes out of the men's room and is stabbed. When the ambulance arrives at Good Samaritan Hospital, Ernest A. Miranda is dead at the age of 34.

The two illegal aliens flee but are captured. The killer is taken into the police interrogation room. There, a police officer intones, "You have the right to remain silent..." The irony of the situation is lost on the suspect. He remains silent and is released on bail. He disappears and to this day he has not been apprehended.

The only legacy that Miranda leaves to anyone is his legacy to law enforcement: The Miranda Rules. If the events of March 3, 1963 had never occurred, Miranda would have died unknown and unlamented. Instead his name is known to people who cannot name the Chief Justice of the United States, the director of the F.B.I or even the governor of their own state.

Somewhere in this story of a wasted life there is a moral....


Life Goes On

In Gideon's Trumpet, Anthony Lewis portrayed Gideon as a heroic, albeit flawed, figure. He was cast even more heroically in the 1980 film version of the book, with
Henry Fonda playing the lead.

But neither the book nor the movie gave the full story of Clarence Gideon's life. After his acquittal, he resumed his place in a well-worn rut. He married yet again and drifted from one Florida beer joint to the next. He died in Fort Lauderdale on January 18, 1972, at age 61. His kin back in Missouri reluctantly accepted Gideon's body and laid him to rest in an unmarked grave.

Donors later added a simple granite headstone with this engraved script: "Each era finds an improvement in law for the benefit of mankind."

The year Gideon died, the Supreme Court expanded its ruling in his case to include free counsel for anyone arrested who might spend even one day in jail if convicted, including those charged with misdemeanor crimes.

Thursday, August 17, 2006

Do You Really Need A Living Trust?

This is an article from the Fort Worth Star Telegram. While Texas certainly has a more progressive probate code than Oklahoma, Oklahoma has reformed its probate code somewhat over the past several years. Oklahoma has simplied probate procedures somewhat, especially for small estates, and probate is no longer the nightmare it once was. Many, but not all, of the issues raised in this article may be applicable in Oklahoma as well, particularly for people with modest income and assets:


Most Texans have no need for living trusts

The Savvy Consumer

Texas may very well be the only state in the union where most people do not need a living trust.

Local estate attorneys, retirement planners, the state bar and even the attorney general all say Texas has a model probate system that is inexpensive and time-efficient. Because of that, only in a handful of cases do people need living trusts.

R. Blair Norman, one of 58 attorneys in Tarrant County board certified in estate planning and probate law, said he recommends living trusts only to about 10 percent of his client base.

"If you have a well-drafted will appointing an independent executor, probate is very simple and inexpensive," said Norman, who teaches a six-week continuing-education course on estate and probate at Texas Christian University twice a year. "Most of the time, what I see is a person buys a living trust, never funds it and then the heirs have to go through probate anyway."

A living trust is a legal arrangement that allows another person to assist, if needed, in managing your assets while you are alive and in distributing your assets after you die. Property and assets transferred to the trust are not subject to the probate process when you die.

Although avoiding probate is an issue in virtually every other state in the U.S., it is not a problem in most Texas cases as long as the deceased had a will, said Steve Blankenship, a certified financial planner with Heritage Financial Planning in Grapevine.

"For any state outside of Texas, you generally need a living trust," he said. "Here it's a lot of hassle for not a lot of benefit."

The simplified Texas probate system requires the executor of a will to have one court hearing, file a list of assets called an inventory and file a notice to creditors, without any further court oversight, Norman said.

"We're darn independent in Texas and always have been," he said. "The idea of a judge telling us what to do doesn't sit well here. Independent administration basically allows the executor to do the things they need to do without court supervision."

The explosion of living trusts nationally -- Suze Orman and other celebrity financial advisers recommend them -- spills over into Texas, however. On top of that, the selling of living trusts has turned into a way for promoters to prey upon the elderly.

"Too often, the sale is made without regard for whether a living trust really is in the client's best interest," said Texas Attorney General Greg Abbott in an alert to senior citizens. "The fact is, for a majority of seniors, a living trust is not preferable to a will and a durable power of attorney."

Living trusts can be sold in kits costing anywhere from $500 to $5,000, sold by promoters who use free meals and high-pressure sales tactics laced with inaccurate or misleading information. Another tactic: The promoters sell the kits for a lower price and use them as a hook to sell annuities and other investments to seniors.

Usually an attorney drafts the living trust, but in many cases salespeople selling the trust kits are the only ones who actually see the client. Often an attorney working with the salesperson drafts the trust on the basis of instructions from the salesperson without ever meeting the client or following through by placing their assets in the trust, Norman said.

When assets are inappropriately placed in a living trust, that creates a complication for heirs, he said. Ownership of some assets -- IRAs and 401(k)s, for instance -- should never be changed into a living trust. Life insurance should have named beneficiaries and therefore not be subject to the probate process. Other assets, such as title to a house or vehicle or banking accounts, can have multiple names for joint ownership.

"Some of our clients have spent a lot of money on living trusts before they come to us," said Burke Rosenthal with Rosenthal Retirement Planning in Fort Worth, adding that fewer than 5 percent of his clients have living trusts. "In a lot of cases, they were never funded."

Financial planners and attorneys also note that living trusts must be updated whenever new assets are acquired. Any acquired asset that isn't placed into an established living trust will require the estate to go through probate anyway.

Wayne Frank Paul, a Grapevine attorney, said sellers often imply that living trusts have tax advantages. But any tax strategies you place in a living trust can be put into a well-drafted will that contains tax-planning provisions, he said. There are no tax advantages specific to a living trust.

"We see that all the time," he said. "They imply that with a living trust you will save on estate and gift taxes."

Although most people do not require a living trust, there are times when it is appropriate. Here are some of the major reasons to get a living trust:

You have property out of state. This will force you into probate court in other states that are not as progressive as Texas probate courts.

You are facing a debilitating disease like Alzheimer's that will make you unable to continue to handle your finances.

You are certain your will is going to be contested.

You want your estate holdings to remain private. Probate court documents listing assets are available to the public.

Norman suggests sitting down with an attorney to discuss the pros and cons of a living trust.

"Get education about your options, get a second opinion if you like, and then make your decision based on your individual circumstances and estate-planning goals," he said.


Myths about living trusts

Sellers of living trusts often imply that they are in your best interest, but in Texas they offer few advantages. Here are some of the myths:

You can save on taxes only with a living trust. False. Up to $2 million in assets from an estate can transfer tax-free until 2009, when the amount goes up to $3.5 million. Also, a regular will can include any tax strategies, such as A-B trusts. You do not have to have a living trust for such tax vehicles.

Probate is costly and takes years. False. Living trust sellers may tell you that attorneys take 10 percent or more of the estate to handle a probate, but most attorneys in Texas work on hourly fees, and the number of assets does not affect the overall cost. Also, the Texas Probate Code requires just one court hearing and the filing of an inventory, if there is a will.

A living trust will help you qualify for public assistance benefits such as Medicaid benefits for a nursing home, or help you avoid creditors. Both of these statements are false.

A living trust is the only way to avoid probate. False. Multiple-party accounts at banks and joint tenancy with rights of survivorship are two ways to have assets avoid probate.

Everyone should have a living trust. False. The costs associated with putting together, funding and administering a living trust can outweigh any benefits.

SOURCE: State Bar Association of Texas


These organizations offer information on living trusts:

For a free copy of "Living Trust Scams and the Senior Consumer" by the State Bar Association of Texas, call 800-204-2222 ext. 2610 or go to and look under "News & Publications," then "Pamphlets."

For a free copy of "Living Trust Offers: How to Make Sure They're Trustworthy" by the Federal Trade Commission, call 877-FTC-HELP or go to

For a free copy of "Product Report: Wills & Living Trusts" from AARP, call 800-424-3410 or go to
Teresa McUsic's column appears Mondays and Fridays in the Business section. 817-460-5514 or

Sunday, August 06, 2006

Dealing With The Unforgiving Client In Your Practice

As attorneys we frequently see people in the extremes of their behavior. Our clients are frequently in a life crisis and the true content of their character, both good and bad, is apparent from their conduct. This is never more true than when it is time to conclude the lawsuit.

Most lawsuits settle and there always comes a moment when it is time for the parties to legally forgive each other by signing a mutual release of all claims. The mutual release is an important part of the process. By agreement of the parties, the release forever ends the legal dispute over that matter. It doesn’t mean they agree on anything other than the fact that neither party can ever bring that matter before the courts again.

Unfortunately, some clients just cannot bring themselves to sign the release. Regardless of the circumstances, no matter what relief they have received, they are unwilling or unable to forgive their opponents and put the matter behind them even when it is in their own best interest. If this client is forced by circumstances to legally settle before they have processed their anger, they may transfer it to the next available target, often their own attorney.

In an excellent little paper titled, Dealing With the Difficult Client, Toronto Barrister Carole Curtis describes the relationship with an angry client in this way:[i]

“This client is unhappy before they retain a lawyer, and will continue to be unhappy. They usually cannot get at the person who is making them unhappy (the other side of the case), in order to tell them about it, but they can get to their own lawyer.”

American Attorney Linda Oligschlaeger was more blunt. She describes these people as the “Looking For Blood Client[ii]

This client is consumed with anger that will certainly stand in the way of any rational or fair result. This type of client wants revenge and the other side to pay with blood and money. Your rational solution will fall on deaf ears. It's nearly impossible to work with someone whose judgment is so clouded with anger. This person's anger can very easily turn on you. If revenge can't be taken out on the other side, you will do.”

So, what are you supposed to do with an unforgiving client? In a word, forgive them. My advice would be to quickly and permanently terminate the professional relationship, offer them the best fee compromise you can consistent with the Rules of Professional Conduct, and then give and get a full and unconditional release of liability. If they refuse to be reconciled with you as they have with their original opponent (which is likely to happen) then the matter is in God’s hands and the courts if necessary.


[i] Dealing With The Difficult Client, Carole Curtis, B.A., LL.B., Barristers & Solicitors, 260 Richmond St. W., Suite 506, TORONTO, Ont. M5V 1W5

[ii] It Pays to Be Picky (When It Comes to Clients), Linda Oligschlaeger Membership Services Director of The Missouri Bar.

  • See also: "It's All Your Fault!" - Working With High Conflict Personalities

    by William A. Eddy, LCSW, JD

  • Thursday, August 03, 2006

    The Blunt End of American Foreign Policy

    This afternoon, I spoke briefly to my oldest and dearest friend. He was in San Diego at the Marine Corp Recruit Depot. Tommorow morning, he will watch his son graduate from boot camp.

    My friend is justifiably proud. His son has accomplished something that can never be taken away from him. In the morning, when he puts on his dress blues for the first time and marches across the drill field, he will be a Marine. No matter what else happens to him, where he goes or what he does, he will be a member of one of our nations most elite fraternities. From what we have heard, his son will be the honor graduate of his company and will be allowed to start the difficult path leading to acceptance in Force Recon.

    My friend is scared to death. He served in Marine Corp aviation during the Viet Nam conflict. While, like myself, he did not see combat, his association with those that did left indelible marks. Combat Arms is not a test that anyone would willingly choose for their son. It has to be chosen and my friend's son has done just that.

    In a few months, this boy, eighteen years old, will be the blunt end of American foreign policy. He will likely go to Iraq, take life and risk having his own taken. He will trust his life to his fellow Marines and take their lives in his hands when they trust him. He will see horrors that no one of any age ever should and gain a confidence that lesser men will never comprehend. When he returns at twenty or twenty one he will not be a boy. He will never be a boy again. He will never be young again. He will be a veteran that few Americans will ever be able to understand, appreciate or sufficently thank for their service.

    I will pray for this Marine every day of my life until he returns.


    Wednesday, August 02, 2006

    DelGiorno Full of Beans Defending Been

    Radio personality Michael DelGiorno declared today that the illegal immigration problem in Tulsa is George Bush’s fault rather than Chief Dave Been’s. His argument is a sophistry. He attempts to prove the truth of a known falsehood by combining it with a true statement.

    Let’s start with the true statement. George Bush has failed miserably to control the borders and deal with illegal immigration. But, the second statement needs to be carefully analyzed. Chief Been has made material representations of law to the public. Binding legal precedent holds that local and state law enforcement agencies DO have the authority to enforce federal immigration laws. Despite George Bush’s failure to enforce these laws, they are still the law of the land. Been refuses to enforce them. Consequently, DelGiorno is really saying that if George Bush refuses to enforce the law Chief Been should also be excused from it.

    I am deeply disappointed in DelGiorno. Logically, his argument is precisely the same as that of the left wing nut cases who blame the potholed pavement in their towns on the President of the United States instead of their local Mayor and Councilman. Granted, the President might have vetoed the road bill but that doesn’t keep the local road crew from showing up with a few scoops of asphalt to repair the roads. And, that is precisely what local citizens are asking Chief Been to do, make the appropriate local response to a local problem.

    One of the primary principles of American politics has always been to do what you can where you can about a problem while you continue petitioning the federal government to do its job properly. If you don’t, the feds rightly assume that you don’t really have a problem. And that is precisely what has happened in Tulsa thanks to Chief Been’s don’t ask don’t tell policy on illegal immigration.


    Tuesday, August 01, 2006

    Been Full of Beans on Immigration Law Enforcement

    In today's Tulsa World Tulsa Police Chief Dave Been states that his officers have no authority to enforce federal immigration laws. You have to wonder who is giving the Chief his legal advice. The Tenth Circuit Court of Appeals disagrees:

    [29] We noted just recently that state law enforcement officers within the Tenth Circuit "have the general authority to investigate and make arrests for violations of federal immigration laws," and that federal law as currently written does nothing "to displace . . . state or local authority to arrest individuals violating federal immigration laws." United States v. Vasquez-Alvarez, 176 F.3d 1294, 296, 1299 n.4, 1300 (10th Cir. 1999). Rather, we observed that federal law "evinces a clear invitation from Congress for state and local agencies to participate in the process of enforcing federal immigration laws." Id. at 1300.

    [30] Fifteen years earlier in United States v. Salinas-Calderon, 728 F.2d 1298, 1301-02 & n.3 (10th Cir. 1984), we likewise noted state law enforcement officers' "general investigatory authority to inquire into possible immigration violations." In Salinas-Calderon, we specifically held that a Kansas state trooper had probable cause to make a warrantless arrest of an undocumented alien, "and the fact that [the trooper] did not know with certainty that there was a violation of the immigration laws is not controlling." Id. at 1302; see also id. (an arresting officer need not "hold a subjective belief that he has a basis for making the arrest").

    [31] Defendants' argument that Utah state law did not authorize Trooper Wright to detain them for suspected violation of federal immigration law misses the mark. We have never held that before a state law enforcement officer may arrest a suspect for violating federal immigration law, state law must affirmatively authorize the officer to do so. But see Gonzales v. City of Peoria, 722 F.2d 468, 475 (9th Cir. 1983) (suggesting state law must affirmatively grant local authorities the power to arrest for a federal immigration law violation). Instead, relying on Salinas-Calderon, we inferred in Vasquez-Alvarez, that state and local police officers had implicit authority within their respective jurisdictions "to investigate and make arrests for violations of federal law, including immigration laws." 1295; *fn7 <#D*fn7> see also United States v. Janik, 723 F.2d 537, 548 (7th .Cir. 1983) (recognizing state law enforcement officers' implicit authority to arrest suspects for federal offenses); United States v. Bowdach, 561 F.2d 1160, 1167-68 (5th Cir. 1977) (interpreting 18 U.S.C. § 3041 to empower state law enforcement officers to arrest suspects for federal offenses). This, of course, presumes no state or local law to the contrary. See Jay T. Jorgensen, The Practical Power of State and Local Governments to Enforce Federal Immigration Laws 1997 B.Y.U.L. Rev. 899, 910 n.65. *fn8 <#D*fn8>

    [32] Because probable cause to arrest Defendants for violations of state and federal law existed at the time of their consent to search the vehicle, Defendants' claim that they were illegally detained at the time of their consent necessarily fails. Accordingly the district court's order granting Defendants' motion to suppress on the basis of an illegal detention is reversed. This cause is remanded to the district court for further proceedings not inconsistent with this opinion. [33]


    United States v. Santana-Garcia, 264 F.3d 1188 (10th Cir. 09/05/2001)

    Been's statement is especially troubling in that not only is it dead wrong, but it also substitutes left wing politics for established jurisprudence, establishing a defacto local law enforcement policy in direct contradiction to the law of the land. In a recent law review article titled The Essential Force Multiplier, The Inherent Authority of Local Police to Make Immigration Arrests, 69 Alb. Law Rev. 179, Dr. Kris W. Kobach Professor of Law, University of Missouri (Kansas City) School of Law flatly states:

    "It is well established that the authority of state police to make arrests for violations of federal law is not limited to situations in which state officers are exercising power delegated by the federal government to the states. Rather, it is a general and inherent [*200] authority based on the fact that the states retain their sovereignty in the U.S. constitutional framework. The states' arrest authority is derived from the basic power of one sovereign to assist another sovereign. This is the same inherent authority that is exercised whenever a state law enforcement officer witnesses a federal crime being committed and makes an arrest. That officer is not acting pursuant to delegated federal power. Rather, he is exercising the inherent power of his state to assist another sovereign.

    "There is abundant case law on this point. Even though Congress has never authorized state police officers to make arrest for federal offenses without an arrest warrant, such arrests occur routinely. Further, the Supreme Court has recognized that state law controls the validity of such an arrest. As the Court concluded in United States v. Di Re, "No act of Congress lays down a general federal rule for arrest without warrant for federal offenses. None purports to supersede state law. And none applies to this arrest which, while for a federal offense, was made by a state officer accompanied by federal officers who had no power of arrest. Therefore the New York statute provides the
    standard by which this arrest must stand or fall. 129

    "The Court's conclusion rests on the assumption that state officers possess the inherent authority to make warrantless arrests of individuals who have committed federal offenses. The same assumption guided the Supreme Court in Miller v. United States, a case concerning an arrest for federal offenses by an officer of the District of Columbia. 130 No delegation of federal arrest authority was necessary; "by like reasoning the validity of the arrest ... [was] to be determined by reference to the law of the District of Columbia." 131 As the Seventh Circuit explained in United States v. Janik, "[state] officers have implicit authority to make federal arrests." 132 Accordingly, they may initiate an arrest on the basis of probable cause to believe that an individual has committed a federal offense. 133

    "The Ninth and Tenth Circuits have reached the same conclusion in the immigration context specifically. In Gonzales v. City of [*201] Peoria, the Ninth Circuit opined with respect to immigration arrests that "the general rule is that local police are not precluded from enforcing federal statutes." 134 The Tenth Circuit has reviewed this question on several occasions, concluding squarely in 1984 that "[a] state trooper has general investigatory authority to inquire into possible immigration violations." 135 As the Tenth Circuit characterized this arrest power in 1999, there is a "preexisting general authority of state or local police officers to investigate and make arrests for violations of federal law, including immigration laws." 136 And again in 2001, the Tenth Circuit reiterated that "state and local police officers [have] implicit authority within their respective jurisdictions "to investigate and make arrests for violations of federal law, including immigration laws.'" 137 None of these Tenth Circuit holdings drew any distinction between criminal violations of the INA and civil provisions that render an alien deportable. Indeed, in all of the cases, the officers involved inquired generally into possible immigration violations, often arresting without certainty as to whether the aliens' immigration violations were of a civil or criminal nature. 138 Rather, the court described an inherent arrest authority that extends generally to all immigration violations."

    Chief Been needs to carefully and quickly re-examine the TPD's policy on immigration law enforcement and make adjustments to bring the TPD into line with the law of the land.


    Chief Been Calls Concerned Citizens "Bigots"

    Local radio station KRMG reports that Tulsa Police Chief Dave Been is calling Tulsa citizens who oppose illegal immigration "bigots." KRMG also reports that a local group, Immigration Reform for Oklahoma Now has called for Been's dismissal. Here is the TPD's policy on illegal immigration as stated by Chief Been in the Tulsa World Sunday, July 30, 2006:

    "Tulsa Police Chief Dave Been said his department will cooperate with ICE in its roundups, but it refuses to get into the business of immigration enforcement. Doing so would make solving day-to-day "local crimes more difficult for officers because of the fear it creates.

    "We do not ask for citizenship status," Been said. "Anytime you do that it flies in the face of community policing."

    "The Tulsa Police Department is committed to providing protection to everyone within its jurisdiction, he said.

    "Last week the Police Department issued a public statement reaffirming its hands-off position on enforcement of federal immigration law. It coincides with the policies of police departments in 58 other cities, according to the Major Cities Chiefs Association.

    "In addition to undermining trust and cooperation, the association says local police lack the resources, training and authority to take on enforcement of federal immigration law.

    Been's statement places Tulsa in the company of places like Berkeley, California and Cambridge, Massachussetts which have designated themselves as "sanctuary cities" that do not enforce Federal immigration laws. Been's policy is
    to the left of Bill Clinton and Janet Reno, who both publicly supported enforcement of Federal immigration laws by state and local authorities.

    In these days of political correctness and hate crime laws, Been's statements are particularly troubling in that they show no respect for differing political opinions and suggest that the city's top law enforcement officer has more concern for non-citizen aliens who are by definition federal offenders than for law abiding citizens of his own community who hold differing political views on an important issue.


    "American institutions rest solely on good citizenship. They were created by people who had a background of self-government. New arrivals should be limited to our capacity to absorb them into the ranks of good citizenship. America must be kept American. For this purpose, it is necessary to continue a policy of restricted immigration. It would lie well to make such immigration of a selective nature with some inspection at the source, and based either on a prior census or upon the record of naturalization. Either method would insure the admission of those with the largest capacity and best intention of becoming citizens. I am convinced that our present economic and social conditions warrant a limitation of those to be admitted. We should find additional safety in a law requiring the immediate registration of all aliens. Those who do not want to be partakers of the American spirit ought not to settle in America." Calvin Coolidge, (First Message to Congress, December 1923)

    "There is no constitutional right to come to America. It is a privilege to be admitted. It is disgraceful, as well as harmful to our personal safety and national health, that we have allowed 9 million people to come here illegally." Cal Thomas, ("Purging the Evil from Among Us" World Jewish Review, Jan. 26, 2002)

    "Illegal hiring undermines the vast and expensive government effort to control the borders. Billions have been spent hiring guards, erecting fences and thwarting smugglers. A continuing supply of jobs on the illegal market will keep the undocumented coming. And the competition certainly hurts American workers and those legally in this country not only by closing off entry level jobs but by holding down wage increases that legal workers might bargain for. Continued defiance of the law merits prosecution. Legal immigration will suffer if the lawbreaking goes unchecked." ("Labor, the Law and Chickens," Washington Post, September 2, 1996)

    "Based on my experience as a prosecutor in Miami, illegal immigration is one of the most critical issues facing this country. As a prosecutor, I felt the burden of it. I think what's important... is for the state and the federal government and for local governments to work together to do everything possible to control illegal immigration in a comprehensive way. This is a serious problem of major concern, and we have got to approach it in a way that is consistent with this nation's tradition as a nation of immigrants, focusing on legal immigration, supporting that in the right way and doing everything possible consistent with the Constitution to control illegal immigration, and we will continue in those efforts." Janet Reno, (Washington Times, Nov. 11, 1994 p.A-15)

    "Let me be clear: I also think it's wrong to condone illegal immigration that flouts our laws, strains our tolerance, taxes our resources. Even a nation of immigrants must have rules and conditions and limits, and when they are disregarded, public support for immigration erodes in ways that are destructive to those who are newly arrived and those who are still waiting patiently to come." Bill Clinton, (Presidential Documents, June 13, 1998)