Post by Jim on Mar 7, 2009 21:29:24 GMT -5
The Fraud
Arresting parents who are child support debtors is an immense fraud. It is a violation of Constitutional Rights, most specifically the Fourth Amendment to the Constitution for the United States of America. Arresting someone for owing a divorce-related child support debt is arresting someone for a "civil" matter. In New Jersey, as in every other state, there are laws that prohibit all law enforcement officers from arresting people in civil matters. Why? Because there is no probable cause that a crime is being committed or has been committed. And, in every case, there is never a sworn affidavit attached to the purported "warrants" that they use to arrest people for child support. There are never any true "warrants" for arresting for child support. They are in fact orders of the court that purport to be made into warrants--all without probable cause or complaining witnesses. Herein lies the abuse.
The Abuse
Every violation of a fundamentally secured right costs the taxpayers in some shape or form. These violations, in arresting child support debtors, is abusive to those arrested and to the taxpayers footing the bills to run the wasteful child support enforcement bureaucracy and the sheriffs going out and jailing people in a civil matter.
There is no probable cause in a civil matter to arrest. One cannot escape that fact. In New Jersey, it is prohibited to arrest women in a civil matter. N.J.S.A. 2A:17-77(a). Pursuant to the Equal Protection Clause of the Fourteenth Amendment of Constitution of the United States, men cannot be arrested in a civil matter either. Yet, they are. And at great taxpayer expense. This happens all over the country. Whether the matter is deemed civil or the particular State somehow fraudulently converts a civil matter into a criminal matter to jail men for owing child support. By fraudulently converting a divorce/child support matter, which is civil, into a criminal matter, always occurs without the man being read his rights at the time the divorce is initiated. Men are forced into giving up financial information, how much they make, where they work, where they live, and all other kinds of disclosures, without ever being told of their rights to remain silent, rights to counsel, rights to a full and fair hearing before a jury of twelve of their peers of the community, etc., at the inception of the divorce proceedings.
Men are routinely arrested for child support. Since over 95% of all child custody awards go to women and the concomittant number of child support obligations go to men, there is a blatant gender discrimination in this country.
Based on this and the fact there was no probable cause to arrest in a civil matter, and that women cannot be arrested in New Jersey on civil process, a police officer loses qualified immunity to a claim that a facially neutral policy is executed in a discriminatory manner only if a reasonable police officer would know that the policy has a discriminatory impact on men, that bias against men was a motivating factor behind the adoption of the policy, and that there is no important public interest served by adoption of the policy. For a similar argument, see Hynson v. City of Chester, Legal Dep't., 864 F.2d 1026, 1032 (3rd Cir. 1988). If police officers are to be sued for these constitutional violations of persons owing child support, then taxpayers are going to bear the brunt of this.
However, "probable cause" to arrest requires a showing that both a crime has been, or is being committed, and that the person sought to be arrested committed the offense. U.S.C.A. Const.Amend. 4. In child support enforcement matters, no probable cause can exist, because the entire matter arose out of a civil context.
It is asserted that by definition, probable cause can only exist in relation to criminal conduct. It follows that civil disputes cannot give rise to probable cause. See, Illinois v. Gates, 462 U.S. 213 (1983)(Test for police officer's sufficient basis for probable cause--did the officer have a sufficient basis to make a "practical, common sense" decision that a "fair probability of crime existed,"--once the officer's actions fail to satisfy this test, it may appear that no reasonably objective officer could have believed that probable cause existed to make an arrest); Allen v. City of Portland, 73 F.3d 232 (9th Cir. 1995), the Ninth Circuit Court of Appeals (citing cases from the U.S. Supreme Court, Fifth, Seventh, Eighth and Ninth Circuits) held that "by definition, probable cause to arrest can only exist in relation to criminal conduct; civil disputes cannot give rise to probable cause; Paff v. Kaltenbach, 204 F.3d 425, 435 (3rd Cir. 2000) (Fourth Amendment prohibits law enforcement officers from arresting citizens without probable cause(citations omitted)); New Jersey District Court cases and other nearby district courts, Santiago v. City of Vineland, 107 F.Supp.2d 512, 561-62, 564 (D.N.J. 2000); Hill v. Algor, 85 F.Supp.2d 391, 397-98 (D.N.J. 2000)(arrest made without probable cause violates the Fourth Amendment); Rzayeva v. Foster, 134 F.Supp.2d 239, 248-49 (D.Conn. 2001)(holding involuntary civil confinement is a "massive curtailment of liberty", is tantamount to the infringement of being arrested and can be made only upon probable cause, citing Vitek v. Jones, 445 U.S. 480, 491, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980); Schneider v. Simonini, 749 A.2d 336, 163 N.J. 336, 361-65 (2000)(detailed explanation of probable cause standard in New Jersey).
In Schneider, the New Jersey Supreme Court set the standard for probable cause. It shows us that probable cause to arrest "requires a showing that both a crime has been, or is being committed, and that the person sought to be arrested committed the offense". Schneider, 163 N.J. at 363. It was further held that a probable cause determination could only be made if a warrant had a "supporting affidavit, as supplemented by sworn testimony before the issuing judge that is recorded contemporaneously". Id. at 363.
It has been held that under the Fourth Amendment to the Constitution for the United States there are two categories of police seizures: (1) A police officer may seize a citizen for a brief investigatory stop if he/she has reason to believe that he/she is dealing with a dangerous, armed individual, regardless of whether he/she has probable cause to arrest the individual for a crime; (2) a seizure which is a full-scale arrest, must be supported by probable cause. To determine whether a seizure has ripened to a full-scale arrest, the courts must consider the "totality of circumstances".
In order to satisfy the requirements of the Fourth Amendment, an arrest must be supported by probable cause to believe that a crime has been committed. Probable cause can only exist in relation to criminal conduct. It follows that civil disputes/civil matters cannot give rise to probable cause. Over thirty years ago, the United States Supreme Court warned of the danger and the threat to liberty if the requirement of probable cause is not strictly abided by:
"The history of the use, and not infrequent abuse of the power to arrest cautions that a relaxation of the fundamental requirements of probable cause would 'leave law-abiding citizens at the mercy of the officers' whim or caprice.'" Wong Sun v.United States, 371 U.S. 471, 479, 9 L.Ed.2d 441, 83 S.Ct. 407 (1963).
The subject "warrant" is not a legitimate warrant or a legitimate exercise of judicial power. New Jersey statute, N.J.S.A. 40A:14-152, (as well as similar statutes around the country) expressly forbids police officers from arresting people in civil causes:
"...police officers shall have the power to serve and execute process issuing out of the courts having local criminal jurisdiction in the municipality and shall have the powers of a constable in all matters other than in civil causes arising in such courts".
State, county and/or municipal law enforcement officers are only empowered to act for the arrest, detection, investigation, conviction, detention or rehabilitation of persons violating the criminal laws of the State. Pursuant to N.J.S.A. 40A:14-152.2 states:
"As used in this section, "law enforcement officer" means any person who is employed as a permanent full-time member of any State, county or municipal law enforcement agency, department, or division of those governments who is statutorily empowered to act for the detection, investigation, arrest, conviction, detention, or rehabilitation of persons violating the criminal laws of this State and statutorily required to successfully complete a training course approved by, or certified as being substantially equivalent to such an approved course, by the Police Training Commission pursuant to P.L.1961, c. 56 (C.52:17B-66 et seq.). "Law enforcement agency" means any public agency, other than the Department of Law and Public Safety, any police force, department or division within the State of New Jersey, or any county or municipality thereof, which is empowered by statute to act for the detection, investigation, arrest, conviction, detention, or rehabilitation of persons violating the criminal laws of this State." [Bold-face added]
Further, according to N.J.S.A. 2A:17-77(a) females in this State cannot be arrested on civil process. Under the Equal Protection Clause of the Fourteenth Amendment of the Constitution for the United States, males cannot be arrested on civil process either. Yet, the State of New Jersey, through its county and municipal law enforcement personnel, allow for gender biased hate crimes in the arresting of males for owing child support. Males are arrested in 98-99% of all arrests for child support. This statistic has been cited in various newspapers and periodicals throughout the nation during highly publicized statewide child support enforcement raids.
The law is clear. Arresting someone in a civil matter is unconstitutional and unlawful, notwithstanding a fraudulent "Order for arrest warrant" issued by purported Judges allegedly acting as Judges. If a person is arrested on less than probable cause, the United States Supreme Court has long recognized that the aggrieved party has a cause of action under 42 U.S.C. ยง1983 for violation of Fourth Amendment rights. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213 (1967). Law Enforcement officers cannot claim "objective reasonableness" in these actions. The law is clearly established regarding arresting and imprisoning a person in a civil debt matter where there is no probable cause:
1. Harlow v. Fitzgerald, 457 U.S. 800, 818 (there can be no objective reasonableness where officials violated clearly established constitutional rights such as--
United States Constitution, Fourth Amendment (including Warrants Clause), Fifth Amendment (Due Process and Equal Protection), Ninth Amendment (Rights to Privacy and Liberty), Fourteenth Amendment (Due Process and Equal Protection);
N.J. Constitution, Article I, Paragraph 13--Prohibition against Imprisonment for Debt in any action;
Allen v. City of Portland, supra, and other U.S. Courts of Appeals citations (probable cause can only exist in the criminal context; it can never exist in civil matters/ disputes;
Illinois v. Gates, 462 U.S. 213 (1983)(U.S. Supreme Court held test for police officer's sufficient basis for probable cause--did the officer have a sufficient basis to make a "practical, common sense" decision that a "fair probability of crime existed,"--once the officer's actions fail to satisfy this test, it may appear that no reasonably objective officer could have believed that probable cause existed to make an arrest);
Rzayeva v. Foster, 134 F.Supp.2d 239, 248-49 (D.Conn. 2001)(holding involuntary civil confinement is a "massive curtailment of liberty", is tantamount to the infringement of being arrested and can be made only upon probable cause, citing Vitek v. Jones, 445 U.S. 480, 491, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980)];
The "child support warrants" that are used to arrest for child support debtors, are unconstitutional warrants as they do not meet the criteria necessary to pass muster under the Warrants Clause of the Fourth Amendment: (1) It is derived out of a civil matter and, therefore, no probable cause exists for arrest; (2) there are no attached affidavits sworn to under oath by any complaining witnesses. Again, men are never indicted, charged, arraigned, tried or convicted. They are summarily jailed in a civil matter without probable cause. This bodes badly for the taxpayers, notwithstanding they are paying for people to be housed in jails for never committing any real crime, but also, if falsely arrested and falsely imprisoned people start suing the government entities for damages for violations of their secured rights.
The Supreme Court ruled in Malley v. Briggs, 475 U.S. 335, 344 (1986), that the mere fact that a judge or magistrate issues an arrest warrant does not automatically insulate the officer from liability for an unconstitutional arrest. "Only where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable...will the shield of immunity be lost". Malley at 344-45.
Where officers in fact know that they are holding an innocent person, even where they have a facially valid warrant for his arrest, plaintiff has a cause of action for false arrest. Gay v. Wall, 761 F.2d 175 (4th Cir. 1985).
Furthermore, the law is unclear on civil and criminal contempt. In fact, it is a mess. "The judicial contempt power has had a long but sordid history". Richard C. Brautigam, Constitutional Challenges to the Contempt Power, 60 Geo. L.J. 1513 (1972). In fact the contempt power of the court should be abolished as a biased procedure and tool of government oppression. R. Goldfarb, The Contempt Power 1-2 (1963). The act of holding someone in contempt for owing a civilly-related child support debt is an anathema to the history of our Nation.
The New Jersey Supreme Court, in N.J. Dept. of Health v. Roselle, 34 N.J. 331 (1961) eradicated the distinction between civil and criminal contempt and held that all contempts are essentially one in the same. Therefore, if both civil relief (collection of a commercial debt) and criminal punishments (arrest and imprisonment for debt) are imposed in the same proceeding, the "criminal feature of the order is dominant and fixes its character for review". Hicks v. Feiock, 485 U.S. 624, 108 S.Ct. 1423, 99 L.Ed.2d (1988); Nye v. United States, 61 S.Ct. 810, 813 (1941). Civil contempts or violations of court orders/violations of litigants rights, are civil in name only, entailing what are in reality criminal punishments. U.S. v. Rylander, 460 U.S. 752, 757 (1983); Uphaus v. Wyman, 360 U.S. 72 (1959).
The New Jersey Appellate Division held in Lusardi v. Curtis Point Property Owners Assoc., 138 N.J. Super. 44, 50 (App.Div. 1975) that there are grave doubts whether a defendant's rights can be adequately protected in a "double-barrelled proceeding" where charges of both contempt and deprivation of private rights are tried in a common proceeding.
Under U.S. v. Rylander ignorance of the order or the inability to comply with the order, or as in this case, to pay, would be a complete defense to any contempt sanction, violation of a court order or violation of litigant's rights. In such cases the risk of erroneous deprivation for civil contempt/violation of litigant's rights, from the lack of a neutral factfinder, may be substantial. Under these circumstances, criminal procedural protections such as the right to be notified, right to a pre-deprivation hearing (or in this case, pre-deprivation ability to pay hearing), right to proof beyond a reasonable doubt, right to counsel are both necessary and appropriate to protect the due process rights of parties and prevent the arbitrary and oppressive exercise of judicial power. International Union, United Mine Workers of America v. Bagwell, 114 S.Ct. 2552, 2561, 129 L.Ed.2d 642 (1994).
The caselaw history on this subject is extensive. It would be absurd to distinguish criminal and civil incarceration. From the perspective of the person incarcerated, the jail is just as bleak no matter what label used. In addition, the line between civil and criminal contempt, or violations of litigant's rights or violations of a court order, is a fine one, and is rarely as clear as the state would have us believe. If the party does not have the present ability to pay, or if he has paid and is unlawfully jailed for it, he does not have the "keys to his jail". What is nominally a civil contempt proceeding (or in aid of litigants rights enforcement proceeding) is in fact nothing more than a criminal proceeding, with the defendant being punished and not coerced. It is the fact of the incarceration and not the label placed upon the proceeding which determines if someone was unlawfully arrested and imprisoned.
Given the way government goes after child support debtors to fill its coffers, by maximizing federal reimbursement incentive funding, for costs expended and amounts collected, this presents not only a conflict of interest, but fraudulent and treasonous government abuse of power and government oppression.
Every U.S. Court of Appeals that has addressed this issue, has held that child support is a common, commercial (and civil) debt subject to all debt collection procedures under the Fair Debt Collection Practices Act. See, U.S. v. Lewko, 269 F.3d 64, 68-69 (1st Cir. 2001)(citations omitted) and U.S. v. Parker, 108 F.3d 28, 31 (3rd Cir. 1997). Based on this fact, imprisonment based upon a debt is prohibited absent clear evidence of fraud, under every states' constitutions prohibiting Imprisonment for Debt.
New Jersey Constitution, Article I, Paragraph 13:
"No person shall be imprisoned for debt in ANY action, or on any judgment founded upon contract, unless in cases of fraud".
The Supreme Court of New Jersey takes this point one step further in State v. Madewell, 63 N.J. 506, 512 (1973):
"Statutes or ordinances, designed as debt collecting devices under the guise of penal laws, contravene the constitutional prohibition against imprisonment for debt. Thus, the legislature may not circumvent the prohibition by rendering criminal a simple breach of contract, the nonpayment of debt, or the failure to use one's own money for a purpose other than for payment of debts. However, statutes against false pretenses, frauds, cheats, and the like, are sustained as against the constitutional objection that such statutes impose imprisonment for debt, on the theory that one who violates the act is punished for the crime he has committed, although civilly the acts may also constitute a breach of contract or the nonpayment of a debt. (16 C.J.S., Constitutional Law, Section 204(4), p.1011)." [bold, underline and italics added]
Pursuant to the September 1998 amendment to N.J. Court Rule, R. 1:10-3, 2002 Gann Edition, Comment: "The evident purpose of this amendment is to make clear that enforcement by incarceration was never intended to create a so-called debtor's prison."
No family court in New Jersey or any other state can be unbiased because they have a financial conflict of interest in the outcomes of child support awards, collections and enforcement of same. That conflict of interest involves the Federal reimbursement and incentive funding to the State for the enforcement and collection of support in order to maximize the funding they receive from the Federal government to fill their treasuries and to supplement judicial and state employee pension plans. The more child support awarded, collected and enforced upon, the more federal funding the State receives. It behooves State Family Court Judges to award as much as possible, notwithstanding the true costs of raising children. This fictitious awarding of child support obligations based on a fraudulent child support guideline designed by judges, and those who are child support advocates and bureaucrats, creates a fraudulent presumption and conflict of interest. Once this funding is paid to the State, based on overinflated child support awards and collections, it is then forwarded to the general treasury and subsequently into the pension plans of judges, sheriffs and sheriff's deputies, law enforcement officers, politicians and other public servants.
To simplify: If the State Family Courts couldn't tell me how much support I needed for my family and children during the marriage, how can they tell me how much to support them after my divorce? If the State Courts are admitting they are a party to my divorce, then they also are responsible for the support of my family, and are also liable for violations of nonpayment to my family. This is an equal protection violation and a violation of absolute liberty rights protected under the Ninth Amendment. This is an equal protection violation and due process violation to use extortion practices and kidnapping for profit and gain to get financial incentives from the state and federal government.
The 2001 Cooperative Agreement between the New Jersey Division of Family Development (DFD) and the County Sheriffs' Offices
The 2001 Cooperative Agreement between the New Jersey Division of Family Development and the various County Sheriff's Offices, refers to "Definitions". The terms of "Arrest Services" and "Arrest" are defined.
"Arrest Services" -- will include all reasonable attempts to apprehend the individual identified in the bench warrant and produce the individual before a judge or other specified officer of the court.
"Arrest" -- will refer to the physical act of taking into custody the individual identified in the bench warrant. Such term shall not apply to voluntary surrender to the court or in instances where warrants are vacated.
According to the "Purpose" Section of the Cooperative Agreement:
The purpose of this Agreement is for the DFD to establish a procedure with the Sheriff's Office for arrest services in those IV-D cases where a bench warrant pertaining to child support and paternity matters has been issued by a court of competent jurisdiction.
As per the bench warrant, the Sheriff's Officer will take the Non-custodial parents into custody for the purpose of establishing paternity and support obligations including health insurance coverage and for payment of arrearages owed.
As can be seen by the Cooperative Agreement, it is nothing more than a debt collection device, using law enforcement personnel in the capacity of debt collection agents with guns. No probable cause can be found and no sworn affidavit or affirmation is used as bench warrants are issued directly from the bench in these civil matters. The use of bench warrants presumably is a method to "streamline" arresting people in a summary proceeding for child support and circumventing the First, Fourth, Fifth, Sixth, Seventh, Ninth, Thirteenth (Anti-Peonage Amendment) and Fourteenth Amendments to the United States Constitution and the New Jersey Constitution, Article I, Paragraph 7 (Prohibition Against Unlawful Searches and Seizures) and Article I, Paragraph 13 (Imprisonment for Debt prohibition).
The New Jersey Appellate Division held in Lusardi v. Curtis Point Property Owners Assoc., 138 N.J. Super. 44, 50 (App.Div. 1975) that there are grave doubts whether a defendant's rights can be adequately protected in a "double-barrelled proceeding" where charges of both contempt and deprivation of private rights are tried in a common proceeding.
Also, based on this and the fact there is no probable cause to arrest in a civil matter, and that women cannot be arrested in New Jersey on civil process, a law enforcement officer loses qualified immunity to a claim that a facially neutral policy is executed in a discriminatory manner only if a reasonable officer would know that the policy has a discriminatory impact on men, that bias against men was a motivating factor behind the adoption of the policy, and that there is no important public interest served by adoption of the policy. See, Hynson v. City of Chester, Legal Dep't., 864 F.2d 1026, 1032 (3rd Cir. 1988) on the discrimination argument.
As part of the Duties and Functions of the Sheriff's Office, the Cooperative Agreement states that: "All pertinent information shall be submitted to authorized personnel and entered onto the State Criminal Information Center (SCIC) system." Since the matter emanates from a civil matter, how does one get put into the "CRIMINAL" information system without having ever committed a crime?
The Cooperative Agreement goes on and states:
"As per the procedure outlined in Attachment B of this Agreement, the Sheriff's Office shall submit detailed reports pertaining to arrest services on a quarterly basis in order to obtain payment for services. Payment for services shall be based on the collection performance standards specified in Attachment B."
As part of the Duties and Functions of the Sheriff's Office, and Part III Performance Standards, the Sheriff's Office will participate in two (2) statewide coordinated raids per year. These raids involve the arrest of non-custodial parents in which men make up 98-99 percent of the "arrestees". This is "gender profiling", "gender biased discrimination" and a "gender biased hate crime" in that it violates the Equal Protection Clause of the Fourteenth Amendment.
Based on the foregoing, the child support enforcement bureaucracy is an abject failure, a massive waste of taxpayer's hard-earned monies (in the billions of dollars), perpetrates government abuse and government oppression against innocent citizens, creates an unconstitutional class of outlaws which are comprised of almost entirely of male parents, and perpetrates fraud to collect child support debts at the point of a gun, in order to maximize profits for the states and its support enforcement bureaucracies.
The taxpayers in this country would be best served if the government stopped its fraudulent, abusive and oppressive anti-male/anti-family practices that it uses to create child support obligors and child support debtors under communist-Soviet style child support guidelines, eliminated the entire child support enforcement bureaucracy, and took the billions of dollars saved from eliminating the bureaucracy and sent it in the form of child support checks to the recipients in the same manner it sends out Social Security checks.
Submitted by,
Bruce Eden, Civil Rights Director
DADS (Dads Against Discrimination)--New Jersey & New York Chapters
