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 Post Posted: Tue 30 Aug 2005 22:49 
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I learned a long time ago that in law, both civil and criminal, it's all about the wording.

Criminals have been let off merely because the interpretation of the wording when the wording is not immediately clear.

I remember a case in missouri (i believe missouri) where a guy killed his spouse or girlfriend. After he thought he killed her he chopped up her body.

Yes I said "thought"... turns out it was revealed that she didn't die of the initial trauma (I don't remember what that was, he either hit her in the head or strangled her or something) but died as a result of dismemberment.

The law at the time stated that a more serious punishment could be sought even though it was a "crime of passion" (sometimes called 2nd degree) instead of premeditated murder (usually 1st degree in most states) if it was particulary gruesome or heinous.

Unfortunately because he supposedly thought she was dead when he began chopping her up he they could not up the charge because it was said he did not "intend" to kill her in that gruesome fashion.

Some of you old LE's on here may remember that case from the academy days and know a bit more detail...

I recall also a california case where someone stole a plane or something but because the vehicle theft law specifically named types of vehicles and the one he stole was not on the list the case was dismissed at trial by the jury. Like I said it's been awhile but that was the gist.

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 Post Posted: Wed 31 Aug 2005 09:05 
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As always, you're on point again.

Yeah, you anticipated me thinking "thought." Very good.

I have not heard of the chopping case you mentioned, but, if it hasn't already been done, I could imagine a Law & Order episode that is roughly based on that case.

If the jury verdict was in part based on the position that bail related arrests cannot involve force, then I suspect an appeal will be filed and that part of the rational attacked using case cites in support of a bondsman's right to use force under consitutionally waived, private contract analysis already on the books.

Rex


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 Post Posted: Wed 31 Aug 2005 12:48 
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LOL, I do not think I have seen a law and order episode about that yet... I remember hearing about that case over ten years ago as well as the other, same class I think, and it was old then... I was told at the time the law was changed after the fact in both cases to keep out the technicalities in case it happened again. I believe the point of the stories was to illustrate the importance in how a particular law was worded as well as what we said on the stand during testimony.

I am hoping an appeal is made as it does appear this case will cause issues for bondsmen in florida.

Here is a related situation that occured here in Evansville several years ago.

A man robbed a pizza joint in Evansville at gun point. Turns out a former EPD Officer who was now working part-time as a pizza delivery driver worked there (I said FORMER as in NO LONGER). The robber ran out of the store followed by the delivery driver. As the robber was fleeing the driver shot him in the back. (will post article if I can find it.. it was several years ago)

The prosecutors office refused to file charges against the driver and said so in a public statement.

Now Indiana had a law that was in effect at the time (and I think still is) that states a victim shall not be placed in ANY legal jeapordy whatsoever. That is possibly why they did not charge the deliver driver.

However, deadly force was used and other than a weak claim that the driver was in fear that the robber would hurt someone else, it did not appear as if he was justified in doing so.

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 Post Posted: Wed 31 Aug 2005 15:48 
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Don & Rex,

Obviously LE can make an arrest on a warrant, but Florida law specifically precludes a bondsman from hiring ANYONE to pick up his/her skips. Only the bondsman that wrote the bond has power of rearrest. The rearrest may be made before forfeiture or up to 2 years after forfeiture.

That being said, I am concerned with the sentencing. The Judge said his hands were tied because of appelate court rulings ordering sentencing of certain crimes.

Quote:
The law says a person armed with a gun while committing a felony gets 10 years, if they fire a gun they get 20 years and if they hit someone with a bullet they get up to life.


Has the appellate court overruled the law allowing a bondsman to arrest his skips? What felony was he comitting? I understand how shooting someone in the butt would be a felony, but am wondering if there is something else underlying the ruling.

Kathy

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 Post Posted: Wed 31 Aug 2005 16:27 
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The problem also Kathy is that even though Florida law specifically precludes a bondsman from hiring ANYONE to pick up his/her skips, the "supreme law of the land" states otherwise.

The fact is that Tailor Vs. Taintor clearly states "They may exercise their rights in person or by agent." OR BY AGENT.

I will repeat what I said earlier:

"Now keep in mind that Tailor vs. Taintor pretty much was dealing with the exonoration of the bond but also had the effect of more clearly defining existing Constitutional Law regarding the arrest powers of a bails urety. Some people forget this and think that Tailor vs. Taintor is what gives us the authority under federal law... it does not, it merely reinforces the ALREADY EXISTING AUTHORITY. It does NOT create anything new.

Although dissenting on the ruling regarding the liability of the sureties (he was actualy in favor of exonoration for the sureties in this case) Mr. Justice FIELD (with whom concurred Mr. Justice CLIFFORD and Mr. Justice MILLER), commented:

"The Constitution of the United States declares its own supremacy, and that of the laws made in pursuance of it, and of treaties contracted under the authority of the United States. As the supreme law of the land they are, of course, to be enforced and obeyed, however much they may interfere with the law or constitution of any State. "

I am hoping an appeal on these grounds is made. Remember, and I can not stress this enough. Tailor VS. Taintor is NOT what gives us the authority, it merely clarifies something already CONSTITUTIONALY granted. In addition Surety powers were FURTHER CLARIFIED in Tailor vs. Taintor thus eliminating the need for another supreme court ruling. The FACT is that the states are begining to disregard the rulings and are in violation of the "supreme law of the land" no matter that the states claim that the "supreme law of the land" may "interfere with the law or constitution of" their State.

This fact was upheld in the ruling by the Supreme Court for Medical Marijuana. Many may not think this ruling is important due to the subject matter, but it is now NATIONAL PRECEDENT, just as is Tailor Vs. Taintor. The fact is that the Supreme Court OVERRULED state law claiming Interstate Commerce! In fact it is even greater than just a precedent... it is now part of the "supreme law of the land"!

Let's not neglect Roe Vs. Wade. The principal is the same, if this trend continues then states will no longer have to obey the "supreme law of the land" thus making their rulings pointless and that portion of government needless.

In fact, if I was an organization that was "pro-life" I would point out the failure of the states to follow other supreme court rulings without consequence and push for states to, once again, enact their own laws, disregarding the supreme court rulings. It definately sets precedence and the foundation for the argument that the Supreme Court has no power and should be dismantled.

If I was the governor of any state that disagreed with supreme court rulings or federal law and wanted my state to enact their own laws I would just pass my own laws and disregard the High Court's rulings. Heck, it's not like it means anything. The US Government would have to send in the Army to stop individual states from doing that.

One has to get these surety cases to the FEDERAL level. An appeal based on the Supreme Court rulings need to be made in this case.

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"Be without fear in the face of your enemies. Be brave and upright that God may love thee. Speak the truth always, even if it leads to your death. Safeguard the helpless and do no wrong. That is your oath."
- Kingdom of Heaven


Last edited by thebishopp on Wed 31 Aug 2005 16:43, edited 2 times in total.

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 Post Posted: Wed 31 Aug 2005 21:05 
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I was going to remain silent on this issue because of the well versed replies by some of you but, I would like to make 1 point on this, however I will stray from the original topic to make my point.

For years I was a Plant Manager in a chemical plant and was responsible for E.P.A., D.O.T. and OSHA compliance regarding HAZMAT (Hazardous Materials) which we had a lot of. The laws that regulated what I was working with (very nasty chemicals) became very hard to understand. I had to deal with the Federal Government and the laws they had established under E.P.A., D.O.T. and OSHA which were all very strict but, in some cases were conflicting with the State Law where the plant operated. It took a long time to get the answers I needed to be in compliance with the Federal and State regulations. It broke down like this which should bring me back on point.

When the Federal Government sets laws that govern us and what we do this usually becomes the standard with which we are to abide by however, if the State sets a law that is more stringent than the Federal Law then it becomes the law with which you must abide by, in that State. A case in point (Rex should relate to this) California has stricter E.P.A. laws than the Federal Government has set so, the people of California must abide by the E.P.A. standards set by that state. You can not have a normal barbecue grill in Califronia like I can here in Arkansas or most other states.

So back to the BEA world: Is Florida's law regulating what this bondsman did more stringent than what has been layed out by the Federal Government? I am not sure but, does a ruling by the Supreme court that is 130+ years old supercede what Florida has done in this case? I am not sure again, I was just trying to make a point. I learned a long time ago what I think is right is not always right when it comes to the State versus the Federal Government. I always thought that the Federal Law or Rulings were right versus the State but, It cost the company I worked for $40,000 to find out that the State had the right to make the Law more strict.

As always this is just my opinion. :)


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 Post Posted: Wed 31 Aug 2005 22:12 
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In most cases this would be correct... kind of like the old military saying when speaking about the standards and regulations. "One can add to but not take away from."

But in this case we are not speaking of federal REGULATIONS. That really is what the EPA "laws" are. They are federal regulations not based on the constitution. If someone were to contest those regulations/laws and get a US Supreme Court Ruling saying that law was UNCONSTITUTIONAL then that law would be struck down. The Federal Govt. is supposed to comply as well as if it were a State law that was struck down. In the case of your company, if they had appealed to the Supreme Court on the basis of the law being unconstitution, and had the supreme court decided that it was a case worth hearing, and then ruled in your companies favor, your company would not have to have paid the fine. The problem being is that your company did not appear to have a argueable stance that the State EPA regulations violated the Constitution of the US.

The Supreme Court steps in when it feels that a situation is of a Constitutional Nature or of Special Importance. The rulings are supposed to be considered the "supreme law of the land" and are supposed to be obeyed by all members of the union.

Let's look at Roe Vs. Wade. If this was not true then states could pass laws making abortion illegal. That is why all this hallabaloo about the newest apointment to the supreme court. The fellow is "pro-life" and so many "pro-choice" groups are afraid he will atempt to change the court ruling. I can guarantee you that if his appointment is approved then a "pro-life" group will appeal Roe vs. Wade in an attempt to get that ruling reversed.

In 1973, in the landmark case of Roe vs. Wade, the United States Supreme Court ruled that the Fourteenth Amendment to the United States Constitution provided a fundamental right for women to obtain abortions. The decision was by no means unanimous. Two of the justices, White and Rehnquist, dissented.

There are many states and people who disagreed with that decision but they do not have the right to enact laws to prevent abortion. Now they could add things like mandatory counseling but they can do nothing which prevents it as the ruling is that the Constitution guarantees that right.

Now, if in Tailor vs. Taintor, the Court had not made such a clear statement, one not left up to interpretation, then the States would have a better argument in instituting laws which ran contrary to that ruling.

I repeat the statement "The Constitution of the United States declares its own supremacy, and that of the laws made in pursuance of it, and of treaties contracted under the authority of the United States. As the supreme law of the land they are, of course, to be enforced and obeyed, however much they may interfere with the law or constitution of any State. "

It is my understanding, and some those here more versed in Surety law would know more, that the right to Bail was written into the U.S. Constitution. The Eighth Amendment to the Constitution prohibited the setting of excessive bail, and the Judiciary Act of 1789, which established the U.S. judicial court system, defined the terms for bailable offenses.

Now in Taylor vs. Taintor the powers of the Surety and his agent were Clarified. Now if it said in Taylor vs. Taintor all that stuff about a surety and his agents right but then said after all that, that States could ban them if they wanted or limit their powers then the states could do so. However, you may notice that no such statement was made, and in fact, not much was left to interpretation when it came to the statement regarding a surety and his agent's powers.

Current case law agrees that states may put licensing requirements onto sureties and their agents but they can not take away the powers granted to the surety and his agent by the Constitution and the Supreme Court. You see the Eight Amendment gives the right of bail and Tailor Vs. Taintor clarifies the rights and powers of the Surety and his Agents in order that people can GET bail, a constitutionaly guaranteed right once they become Sureties and their Agents.

To clarify, a State only has the power to regulate the ability to BECOME a Surety and his Agent ie; licensing, training, etc. Once that requirement has been met, the US CONSTITUTION guarantees their powers based upon the Eighth Amendment and Tailor Vs. Taintor.

I think that about covers it, I may have left something out or not explained something fully.

oh yes... here is the Original Supreme Court Jurisdiction:

(a) The Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States.
(b) The Supreme Court shall have original but not exclusive jurisdiction of:
(1) All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties;
(2) All controversies between the United States and a State;
(3) All actions or proceedings by a State against the citizens of another State or against aliens.

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"Be without fear in the face of your enemies. Be brave and upright that God may love thee. Speak the truth always, even if it leads to your death. Safeguard the helpless and do no wrong. That is your oath."
- Kingdom of Heaven


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 Post Posted: Thu 01 Sep 2005 08:51 
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Geez Don. If I didn't know any better, I'd swear you had one MY cups of coffee :wink: Incidentally, I'm down to one of those ultra-black cups daily due to suddens spurts of non-stop monologues.

In your case, your analysis was on point and, believe it or not, a mere synopsis of what you could have done.

To reinforce your point, I'm waiting for one suitable case (where the skip doesn't get caught so quickly) to attack a forfeiture based on the impossibility of performance along the lines of what your eluding to.

Very few people will be able to discern what in the world I'm talking about, but there are learned pros, like yourself, who may have an interest in what I'm going to attempt when that case hits.

Great job by the way.

Rex


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 Post Posted: Thu 01 Sep 2005 09:26 
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Great post Don! That brings up a question. Why has noboby fought the states of Oregon, Illinois, Wisconsin and Kentucky? They have laws that are more restrictive than what the Supreme Court says we can do. I am sure that if someone had the money they could challenge those states. I would like to see your posting on this since you have been so instructive on this topic so far.


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 Post Posted: Thu 01 Sep 2005 11:03 
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Robert,


Hey now! You must have received a sub-consious (s/p?) signal regarding my last reply on this topic.

I agree that the no-hunt states can make things difficult, but, you see, that also makes things "impossible."

Rex


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