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U.S. Constitution
See other U.S. Constitution Articles

Title: Family of man shot, killed by police sue city of Southaven, officers
Source: WREG
URL Source: https://wreg.com/2019/06/20/family- ... ue-city-of-southaven-officers/
Published: Jun 20, 2019
Author: Eryn Taylor and Jessica Gertler
Post Date: 2019-09-28 16:54:06 by nolu chan
Keywords: None
Views: 758
Comments: 15

Family of man shot, killed by police sue city of Southaven, officers

Posted 10:02 am, June 20, 2019, by Eryn Taylor and Jessica Gertler
Updated at 05:13PM, June 20, 2019

SOUTHAVEN, Miss. — The family of Ismael Lopez, the man that was shot and killed by police nearly two years ago, has filed a lawsuit against the city of Southaven, the police chief and the two officers involved in his death.

The family is seeking $8 million in actual and compensatory damages, $12 million for punitive damages and $25,000 for funeral costs.

In July 2017, Southaven officers were sent to Surrey Lane to look for a suspect wanted for an aggravated assault in Tate County. Officers mistakenly went to the wrong home. Lopez reportedly opened the door to find two officers there and tried to run.

Reports indicate that the officers shot through the door, striking and killing Lopez.

Officers told investigators they saw a rifle barrel pointed through the open door. At that point, a dog charged out of the house, and Officer Samuel Maze shot at it. Officer Zachary Durden began yelling for the person inside to drop the weapon, then fired several shots through the door.

According to the lawsuit, Lopez didn't have a gun in his possession and didn't pose an immediate threat to the officers.

"The City of Southaven law enforcement officers utilized excessive force in with respect to Ismael Lopez and acted in deliberate indifference to his health and welfare by escalating the situation in an unnecessary fashion," attorneys said.

They also claimed that the department has a history when it comes to excessive force.

"Defendants City of Southaven and Chief Pirtle have allowed police officers to engage in a pattern of conduct that violates the civil rights of persons residing in the City for years leading up to the death of Ismael Lopez by failing to enforce policies and procedures and by ratifying the unconstitutional conduct of officers by not punishing them and instead allowing them to continue serving as law enforcement officers."

"Municipal policymakers are aware of, condone and facilitate by their inaction, a “code of silence” in the Southaven Police Department, by which officers fail to report misconduct committed by other officers, such as the misconduct in this case."

Attorneys are asking for a jury to hear the case.

Southaven Mayor Darren Musselwhite released a statement on the lawsuit Thursday afternoon, saying the city's officers had been cleared by investigations.

"Last year, a Desoto County Grand Jury reviewed all facts of this incident and made a decision to not indict any of our Southaven Police Officers. In addition, this matter was investigated by the FBI and the U.S. Department of Justice, which also cleared the City of Southaven Police Officers. We are ready to vigorously defend our officers and City in a court of law in this matter," the statement read.

"Since we will try this case in a courtroom and not the media, I advise all that value the truth to be cautious of the partial facts and misinformation that has been circulated by some since this event occurred."

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TopPage UpFull ThreadPage DownBottom/Latest

#1. To: All (#0)

https://www.courtlistener.com/docket/16250171/linares-v-city-of-southaven/

DOCKET REPORT

- - - - - - - - - -

https://www.localmemphis.com/wp-content/uploads/sites/60/2019/06/Lopez-lawsuit.pdf

Linares v City of Southaven, MSND 19-cv-133 (19 Jun 2019)
Doc 1, COMPLAINT

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https://www.courtlistener.com/recap/gov.uscourts.msnd.42512/gov.uscourts.msnd.42512.5.0.pdf

Linares v City of Southaven, MSND 19-cv-133 (14 Aug 2019)
Doc 5, Defendant Zachary Durden's MOTION TO DISMISS Based on Standing or Absence of Jurisdiction

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https://www.courtlistener.com/recap/gov.uscourts.msnd.42512/gov.uscourts.msnd.42512.18.0.pdf

Linares v City of Southaven, MSND 19-cv-133 (4 Sep 2019)
Doc 18, BRIEF in Support of Defendant City of Southaven's Motion to Dismiss Based on Standing or Absence of Jurisdiction

- - - - - - - - - -

https://www.courtlistener.com/recap/gov.uscourts.msnd.42512/gov.uscourts.msnd.42512.24.1.pdf

Linares v City of Southaven, MSND 19-cv-133 (17 Sep 2019)
Doc 24-1, Lopez-Linares Marriage License and Certificate of Marriage

- - - - - - - - - -

https://www.courtlistener.com/recap/gov.uscourts.msnd.42512/gov.uscourts.msnd.42512.30.0_6.pdf

Linares v City of Southaven, MSND 19-cv-133 (24 Sep 2019)
Doc 30, REPLY of Zachery Durden to Plaintiff's Response to Motion to Dismiss Based on Standng or Jurisdiction

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https://www.courtlistener.com/recap/gov.uscourts.msnd.42512/gov.uscourts.msnd.42512.33.0_1.pdf

Linares v City of Southaven, MSND 19-cv-133 (25 Sep 2019)
Doc 33, BRIEF in Support of City of Southaven Response to Motion for Extension of Time to Serve Former Southaven Police Chief Steve Pirtle

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nolu chan  posted on  2019-09-28   16:54:54 ET  Reply   Trace   Private Reply  


#2. To: All (#0)

https://www.ca5.uscourts.gov/opinions/pub/11/11-10086-CR0.wpd.pdf

United States v Portillo-Munoz, 11-10086 (5th Cir, 29 Jun 2011)

REVISED JUNE 29, 2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

United States Court of Appeals
Fifth Circuit FILED
June 13, 2011
Lyle W. Cayce
Clerk

No. 11-10086

UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ARMANDO PORTILLO-MUNOZ
Defendant-Appellant

Appeal from the United States District Court
for the Northern District of Texas

Before GARWOOD, GARZA, and DENNIS, Circuit Judges.

GARWOOD, Circuit Judge:

FACTS AND PROCEEDINGS BELOW

On July 10, 2010, the Castro County, Texas, Sheriff's department was notified that a person at the Rodeo Arena in Dimmit, Texas, was “spinning around” on a red motorcycle with a gun in his waistband. A Dimmit Police Officer arrived at the scene and found a .22 caliber handgun in the center console of a four-wheeler driven by defendant-appellant Armando Portillo- Munoz. Portillo indicated to the officers present that the gun was for killing coyotes. After searching his person, officers found a dollar bill in Portillo's pocket with a white powder substance inside the folds. Portillo was arrested and booked in the Castro County jail for unlawfully carrying a weapon and for possession of a controlled substance. He admitted to being a native and citizen of Mexico illegally present in the United States. According to Portillo's Presentence Report (PSR), he first came to the United States in 2005 but left after six months. Portillo illegally reentered the United States in 2009 and had been present for one year and six months before this incident. At the time of his arrest, he was working as a ranch hand in Dimmit. He stated that he obtained the firearm to protect the chickens at the ranch from coyotes. He had been employed there since January 2010, prior to which he had worked at a dairy farm in Hereford, Texas. His PSR did not report any prior criminal history, arrests, or previous encounters with immigration officials.

Portillo was indicted on August 31, 2010 for one count of Alien, illegally and unlawfully present in the United States, in Possession of a Firearm under 18 U.S.C. § 922(g)(5). His attorneys filed a motion to dismiss, alleging that conviction under the statute would violate the Second Amendment and the Due Process Clause of the Fifth Amendment. The district court denied Portillo's motion to dismiss. Portillo then entered a conditional guilty plea on January 12, 2011. He admitted that he is a citizen and native of Mexico illegally present in the United States and that he knowingly possessed a firearm in or affecting commerce which had been shipped or transported in interstate commerce. The district court sentenced him to ten months imprisonment followed by three years of supervised release. Portillo filed a timely notice of appeal.

DISCUSSION

I.

Second Amendment

Portillo raises two arguments on appeal: that his conviction under 18 U.S.C. § 922(g)(5) for being an illegal alien in possession of a firearm violates the Second Amendment and that his conviction violates the Fifth Amendment's Due Process Clause. We address the Second Amendment argument first.

We review de novo the constitutionality of federal statutes. United States v. Anderson, 559 F.3d 348, 352 (5th Cir. 2009). Portillo clearly reserved the right to appeal the denial of his motion to dismiss on Second Amendment grounds in his conditional guilty plea.

Under the laws of the United States, “[i]t shall be unlawful for any person . . . who, being an alien . . . illegally or unlawfully in the United States . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” 18 U.S.C. § 922(g)(5). There is no question that Portillo's conduct violated this statute. We are only asked to decide if Portillo's conviction under this statute violates the United States Constitution. Whether the protections contained in the Second Amendment extend to aliens illegally present in this country is a matter of first impression in this circuit. Several district courts have previously considered the constitutionality of this statute, but none of our sister circuits have done so.

The text of the Second Amendment reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. const. amend. II. In 2008, the Supreme Court held in District of Columbia v. Heller that the Second Amendment guarantees an individual right to possess and carry weapons. 128 S.Ct. 2783 (2008). The individual laying claim to the Second Amendment's protections in Heller was a United States citizen, so the question of whether an alien, illegal or legal, has a right to bear arms was not presented, and the Court took care to note that it was not purporting to “clarify the entire field” of the Second Amendment. Id. at 2821. However, the Court's language does provide some guidance as to the meaning of the term “the people” as it is used in the Second Amendment. The Court held the Second Amendment “surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Id. Furthermore, the Court noted that “in all six other provisions of the Constitution that mention ‘the people,' the term unambiguously refers to all members of the political community, not an unspecified subset” before going on to say that “[w]e start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.” Id. at 2790-91. The Court's language in Heller invalidates Portillo's attempt to extend the protections of the Second Amendment to illegal aliens. Illegal aliens are not “law-abiding, responsible citizens” or “members of the political community,” and aliens who enter or remain in this country illegally and without authorization are not Americans as that word is commonly understood.

Prior to its decision in Heller, the Supreme Court interpreted the meaning of the phrase “the people” in the context of the Fourth Amendment and indicated that the same analysis would extend to the text of the Second Amendment. In United States v. Verdugo-Urquidez, the Court held that its analysis of the Constitution “suggests that ‘the people' protected by the Fourth Amendment, and by the First and Second Amendments, . . . refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.” 110 S.Ct. 1056, 1061 (1990). Portillo relies on Verdugo-Urquidez and argues that he has sufficient connections with the United States to be included in this definition of “the people,” but neither this court nor the Supreme Court has held that the Fourth Amendment extends to a native and citizen of another nation who entered and remained in the United States illegally.

Moreover, even if there were precedent for the proposition that illegal aliens generally are covered by the Fourth Amendment, we do not find that the use of “the people” in both the Second and the Fourth Amendment mandates a holding that the two amendments cover exactly the same groups of people. The purposes of the Second and the Fourth Amendment are different. The Second Amendment grants an affirmative right to keep and bear arms, while the Fourth Amendment is at its core a protective right against abuses by the government. Attempts to precisely analogize the scope of these two amendments is misguided, and we find it reasonable that an affirmative right would be extended to fewer groups than would a protective right. The Second Circuit laid out compelling reasons for why an illegal alien could not claim that a predecessor statute to section 922(g)(5) violated the Fifth Amendment right to equal protection by saying that “illegal aliens are those who . . . are likely to maintain no permanent address in this country, elude detection through an assumed identity, and — already living outside the law — resort to illegal activities to maintain a livelihood.” United States v. Toner, 728 F.2d 115, 128-29 (2d Cir. 1984). The court went on to approvingly quote the district court's statement that “one seeking to arrange anassassination would be especially eager to hire someone who had little commitment to this nation's political institutions and who could disappear afterwards without a trace ...” Id. at 129 (internal quotation marks omitted).

Additionally, the Supreme Court has long held that Congress has the authority to make laws governing the conduct of aliens that would be unconstitutional if made to apply to citizens. In Matthews v. Diaz, the appellees were lawful resident aliens challenging a federal law that limited eligibility to Medicare Part B to aliens who had been admitted for permanent residence and had also resided in the United States for at least five years. 96 S.Ct. 1883 (1976). The Supreme Court upheld both conditions as constitutional against a challenge under the Due Process Clause. The Court pointed out in its opinion that the crucial question was whether discrimination among different types of aliens was permissible, as contrasted with discrimination between aliens and citizens and held that “[n]either the overnight visitor, the unfriendly agent of a hostile foreign power, the resident diplomat, nor the illegal entrant, can advance even a colorable constitutional claim to a share in the bounty that a conscientious sovereign makes available to its own citizens and some of its guests.” Id. at 1891 (emphasis in original). The Court went on to say that “[i]n the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens.” Id.

The Court, in several cases striking down state laws restricting otherwise lawful activities in which aliens could engage, has emphasized that the rights thus protected were those of aliens who were lawful inhabitants of the states in question. In 1915, the Supreme Court held in Truax v. Raich that the complainant, a native of Austria admitted for residency in the United States, was entitled to equal protection under the 14th Amendment because he was “lawfully an inhabitant of Arizona.” 36 S.Ct. 7, 9 (1915). See also id. at 10 (states cannot “deny to lawful inhabitants . . . the ordinary means of earning a livelihood.”). See also Kwong Hai Chew v. Colding, 73 S.Ct. 472, 477 & n.5 (1953); Torao Takahashi v. Fish and Game Comm'n, 68 S.Ct. 1138, 1142, 1143 (1948). This court noted in Lynch v. Cannatella that “the Constitution does not forbid all differences in governmental treatment between citizens and aliens, or between aliens who have been legally admitted to the United States and those who are present illegally.” 810 F.2d 1363, 1373 (5th Cir. 1987).

The courts have made clear that the Constitution does not prohibit Congress from making laws that distinguish between citizens and aliens and between lawful and illegal aliens. We find that analysis persuasive in interpreting the text of the Second Amendment. Whatever else the term means or includes, the phrase “the people” in the Second Amendment of the Constitution does not include aliens illegally in the United States such as Portillo, and we hold that section 922(g)(5) is constitutional under the Second Amendment.

II.

Due Process Violation

Portillo argues that 18 U.S.C. § 922(g)(5) violates his Fifth Amendment due process rights, both on its face and as applied. We hold that Portillo waived the right to challenge the constitutionality of the statute on Fifth Amendment grounds. Portillo's conditional guilty plea explicitly says that Portillo is entitled to appeal the denial of his motion to dismiss “only as it relates to whether the statute in question 18 U.S.C. § 922(g)(5), violates the defendant's Second Amendment right to keep and bear arms and to self-defense.” At Portillo's rearraignment hearing, the court again said that Portillo was reserving his right to appeal the order denying his motion to dismiss “as it relates to the statute in question, that is, 18 U.S.C. § 922(g)(5), in which you contend that the statute violates your Second Amendment right to keep and bear arms and to self defense.” We hold that the text of the conditional guilty plea only reserves Portillo's right to appeal on the grounds that the statute violates the Second Amendment, thus we do not reach the merits of whether Portillo's due process rights were violated.

CONCLUSION

For the foregoing reasons, we AFFIRM the district court's denial of Portillo's motion to dismiss.

AFFIRMED

nolu chan  posted on  2019-09-28   16:55:32 ET  Reply   Trace   Private Reply  


#3. To: nolu chan (#2)

we do not find that the use of “the people” in both the Second and the Fourth Amendment mandates a holding that the two amendments cover exactly the same groups of people.

Well, they do. Had the Founders intended differently they would have said so.

"The Second Amendment grants an affirmative right to keep and bear arms"

Bull Shit. The Second Amendment grants no right. It protects the existing right from infringement.

misterwhite  posted on  2019-09-28   17:25:32 ET  Reply   Trace   Private Reply  


#4. To: All (#0)

https://www.courtlistener.com/recap/gov.uscourts.msnd.42512/gov.uscourts.msnd.42512.18.0.pdf

Linares v City of Southaven, MSND 19-cv-133 (4 Sep 2019)
Doc 18, BRIEF in Support of Defendant City of Southaven's Motion to Dismiss Based on Standing or Absence of Jurisdiction

At 3-4:

Exhibit 1 hereto evidences the currently discovered history of Ismael Lopez contained in the Mississippi Bureau of Investigation Report or MBI Report. Exhibit 1 evidences that at the time of his death that Ismael Lopez was a citizen of Mexico. Motion Exhibit 1 at document pp. 39-40. He was a state and federal fugitive from justice due to multiple prior orders of deportation as an illegal alien and excludable alien and due to a conviction for a violent felony in Washington State with a related parole or probation sentence which he seemingly violated. See Motion Exhibit 1 pp. 6, 8, 11-18 for felony conviction in the State of Washington of “assault -2 domestic violence” with status guilty and well as guilty for driving under the influence. Exhibit1 p. 16 reflects an arrest on August 31, 2001 by I.N.S. on charges of illegal entry into the United States and excludable alien with disposition on October 30, 2001 of “deported to Mexico.” Lopez was arrested by ICE /ERO Memphis on March 3, 2013 for charges of illegal re-entry into the United States and alien removal under Section 212 and 237 with disposition “deported to Mexico” on April 2, 2013. Exhibit 1 p. 16. Ismael Lopez was arrested three days after his second documented deportation on April 5, 2013 by Border Patrol in “Sector Laredo” and charged with illegal entry and alien inadmissibility under Section 212. This resulted in reinstatement of a prior deportation order. Three known deportation orders for Ismael Lopez were in force at the time of his death on American soil in Southaven, Mississippi. On information, Plaintiff Linares is also illegally present in the United States, has and had no documentation at any relevant times showing her

Page 3 of 27

right to be on American soil, and was encouraging and facilitating Ismael Lopez as an illegal alien in remaining in the United States. On information, Plaintiff Linares, during various times of in-custody questioning indicated she was married to two men at the same time.

Motion Exhibit 1 reflects records from the City of Horn Lake, Mississippi on the arrest of Ismael Rodriguez Lopez when he released his truck to “my mother, Maria Martinez” on 3/6/2013. Both he and “Maria Martinez” signed the top page. Exhibit 1 pp. 35-36. These certified government documents evidence a vehicle release by Ismael Rodriguez Lopez to who he claimed as his mother Maria Martinez after his arrest on March 5, 2013 in Horn Lake, Mississippi on charges of improper tag-altered, suspended driver's license, and vehicle insurance law violations on March 13, 2013.

- - - - - - - - - -

At 4-5:

Exhibit 2 attached hereto and filed in support of this Motion is a certified copy of the entire court file from DeSoto County Chancery Court cause # 18-cv-505 which is the estate court matter from which Plaintiff Autry claims his standing. This reflects the source of Plaintiff's possession of the records attached in Exhibit 1 as the District Attorney for the state entity Judicial District who produced the records to Plaintiff Autry by virtue of a court order. Motion Exhibit 2 at p. 64-65.

Motion Exhibit 2 documents apparent conflicting but sworn statements reflected in said court file of Plaintiff Linares and others relative to lack of standing as well support her suspect credibility. See Motion Exhibit 2 p. 47 and 55 which is a birth certificate from Mexico for the birth of “Rodolfo Avendano Linares” on a specific date in 1995 in Mexico with mother named “Claudia Linares Gonzalez” and father named “Reymundo Avendano Tolentino.” Contrast this document with affidavits of “Claudia Linares-Gonzalez” at Exhibit 2 p. 7 and “Rodolfo Linares” at Exhibit 2 p. 6 signed on March 13, 2018 before the petition sworn to by said affidavits was filed. Both “Claudia Linares-Gonzalez” and “Rodolfo Linares” swear that the “matters and facts” in the Petition filed later on March 22, 2018 are“true and correct as therein stated.” The Petition at Exhibit 2 pp. 3-5 contains at paragraph 3 the names and relationships of purported heirs to decedent Ismael Lopez. This includes as sworn to “Claudia Linares Gonzalez” as “adult” with no date of birth given and relationship of “Wife” and “Rodolfo Linares” as “adult” with no date of birth given and relationship of “son” and “Angel Linares” as “adult” with no date of birth given and relationship of “son.” No service or process or waiver of process or any form of notice to Angel Linares appears in the court file. The apparent motherly report of paternity of Plaintiff Linares to the Mexican authorities at the time of Rodolfo's birth conflicts with what she and Rodolfo reported on March 13, 2018 when they signed the estate affidavits as to Rodolfo's paternity. It is also possible that Plaintiff Linares falsely reported paternity to Rodolfo resulting in his estate affidavit being a misrepresentation to the Court but not potential perjury. Plaintiff Linares appears to have falsely represented to at least one set of government authorities.

The conflicting representations of the affiants in the Estate file with the birth certificate, the swearing out of waivers to service of process to a petition that had not even been filed with the Chancery Court, and the failure to obtain a waiver of process or joinder from Angel void the appointment of Plaintiff Autry and/or render his standing suspect and without legal force.

At 4-5:

Motion Exhibit 3 reflects certified records from the municipal court of Horn Lake, Mississippi supported by an affidavit of custodian of records. These include multiple citations or arrests of Ismael Rodriguez Lopez. His arrest on March 5, 2013 in Horn Lake, Mississippi was on charges of improper tag-altered, suspended driver's license, and vehicle insurance law violations. See Exhibit 3 pp. 14-19 and status as “prisoner.” His trial set for March 13, 2013 matches the date of Exhibit 1 above when Lopez was arrested by ICE /ERO Memphis on March 13, 2013 for charges of illegal re-entry into the United States and alien removal under Section 212 and 237 with disposition “deported to Mexico” on April 2, 2013. A traffic stop in Horn Lake, Mississippi on March 5, 2013 by a local City of Horn Lake police officer about a mile from where Ismael Lopez was residing on July 27, 2017 at 5881 Surrey Lane in Southaven, Mississippi lead to another felony conviction for Ismael Lopez and his soon after deportation to Mexico.

At 5:

Motion Exhibit 4 reflects a Go Fund Me campaign benefit for Ismael Lopez with benefits of “All proceeds go to Jordan Castillo and Family for funeral expenses” with the comment that the parents of Ismael Lopez Rodriguz include his father “Mr. Joel Lopez” and his mother “Concepcion Rodriguez.” There is no mention of the person Ismael Lopez declared his mother “Maria Martinez.” It appears that multiple purported mothers and multiple purported fathers as well as multiple but simultaneous claimed marriages were customs surrounding not only Ismael Lopez but also Plaintiff Linares.

At 5-6:

Exhibit 5 hereto are records signed by both Rodolfo Linares and officials of the Southaven Police Department for release of a gun with ammunition back to the possession of Rodolfo Linares on April 24, 2015 with the supporting affidavit of a custodian of records. The gun purchaser/owner is reflected as Claudia Linares. Motion Exhibit 5 reflects the driver's license learner's permit of Rodolfo Linares and his specific date of birth in 1995. This date of birth was omitted from the estate petition but is an exact match to the birth certificate at Motion Exhibit 2 at pp. 47 and 55. The names on the driver permit and the birth certificate are also an exact match with each reflecting the name “Rodolfo Avendano Linares.” The full name of “Rodolfo Avendano Linares” appears in numerous citations issued to him by the City of Horn Lake, Mississippi in Motion Exhibit 3 at pp. 20-48. Rodolfo was too young to supply the vital statistics for the Mexican birth certificate yet the matches with the Mississippi issued driver's permit and the Horn Lake records are clear corroborations of veracity of the birth certificate.

Defendant City asserts with credible documentary support that Plaintiff Linares was not legally married to Ismael Lopez, that Plaintiff Linares has no standing to sue, no standing exists for the claims related to Ismael Lopez, that Plaintiff Autry was not properly appointed as Administrator, and/or that Administrator Autry was appointed Administrator by virtue of apparent conflicting sworn affidavits and/or material misrepresentations and/or contrary to the requirements of law thereby voiding his appointment ab initio. Neither Plaintiff has standing. All state law claims are barred by sovereign immunity as applied by and retained by the Mississippi Tort Claims Act including but not limited to lack of any presuit tort notice and/or statutes of limitations. The persons claimed as related to Ismael Lopez in the estate proceeding seemingly were not related by law including by the laws of the State of Mississippi or any other applicable laws. Relationships not carrying the dignity of being legally sanctioned or legally protected provide no heirship rights in Mississippi. They also do not serve as civil rights predicates under the Fourth or Fourteenth Amendments of the United States Constitution.

nolu chan  posted on  2019-09-28   17:29:33 ET  Reply   Trace   Private Reply  


#5. To: All (#0)

https://www.courtlistener.com/recap/gov.uscourts.msnd.42512/gov.uscourts.msnd.42512.18.0.pdf

Linares v City of Southaven, MSND 19-cv-133 (4 Sep 2019)
Doc 18, BRIEF in Support of Defendant City of Southaven's Motion to Dismiss Based on Standing or Absence of Jurisdiction

At 12-13:

Neither Plaintiff in this case has Article III standing or statutory standing. The Article III standing issue relates to the absence of Fourth and Fourteenth Amendment civil rights of Ismael Lopez or of Claudia Lianres or derivatives of same for Plaintiff Autry and so absent for those who now seek to stand in place for Ismael Lopez. Plaintiff Linares is also in the United States in violation of United State law and as a result of her status as an illegal alien in American soil has very limited federal civil rights and no federal Fourth or Fourteenth Amendment civil rights as alleged. In addition and absent a valid marriage to Ismael Lopez or some other legally protected interest then she has no standing and no right to relief. Rhyne v. Henderson County, 973 F. 2d 386, 390 (5th Cir. 1992).

Ismael Lopez was present in the United States at the time of his death as an illegal alien on American soil. That is the beginning point for analysis. In addition, Ismael Lopez was present in the United States at the time of his death by virtue of his then being in violation of federal law and in violation of multiple court orders prohibiting his entry in the United States. These are distinctive and compelling circumstances as to all claims arising from the complained of use of force as to Ismael Lopez in an area of law on immigration in which Congress has been full throated and vociferous. Any Fourth Amendment civil rights that Ismael Lopez even arguably could have gained upon entry to the United States never came to fruition or were lost by virtue of his own acts and omissions. Motion Exhibit 1 supports a long term record of his criminal conduct and illegal entries. Any contacts that could have grown into positive legal contacts were negated by his demonstrated habitual contempt of the laws and court orders of the United States. Ismael Lopez had insufficient connections with the United States of the type, dignity, and caliber required to attain standing for Fourth or Fourteenth Amendment protection. Ismael Lopez was a convicted felon for a crime of violence while in the United States and fugitive from justice in violation of his terms of probation with an outstanding warrant for deportation as well as being a felon in possession and an illegal alien in possession of a firearm at the time he opened his door to the knock of the described Southaven police officers.

The civil rights of Ismael Lopez relative to use of force, if they existed, were subsumed by congressional action into the immigration laws. See example in De La Paz v. Coy, 786 F. 3d 367 (2015). This is evidenced by the code sections Ismael Lopez was charged with shown in Motion Exhibit 1. If he ever had Fourth Amendment or Fourteenth Amendment civil rights, they were lost by his own conduct and misconduct. Ismael Lopez may have been a person on American soil but he was not one of the “We, the People of the United States” entitled to the civil rights invoked in this lawsuit. The Fourth Amendment explicitly states that it's coverage extends to the “right of the people.” This refers to members of the polity of the United States.

Plaintiff Claudia Linares is also an illegal alien on American soil who harbored a convicted felon fugitive and who was in possession of a firearm. Plaintiff Linares remains apparently present in the United States without permission and in violation of the laws of the United States. There is no Article III standing for any of the federal civil rights she claims plus the claimed federal familial claims of Plaintiff Linares do not exist as a matter of law. Plaintiff Linares and Ismael Lopez were not legally husband and wife under the laws of the State of Mississippi or any applicable law. Rhyne v. Henderson County, 973 F. 2d 386, 390 (5th Cir. 1992).

At 15-18:

The Fourth Amendment provides, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. Amend, IV. In United States v. Verdugo-Urquidez, 494 U.S. 259, 110 S. Ct. 1056, 108 L. Ed. 2d 222 (1990), the Supreme Court addressed the question of the Fourth Amendment's extraterritorial reach. The claim surrounded a warrantless search of premises of a Mexican national in Mexico by United States DEA Agents authorized by Mexican officials and was reviewed under a Fourth Amendment suppression motion. On appeal the U.S. Supreme Court began it's review of the Circuit Court opinion by focusing on the text of the Fourth Amendment. The Court noted that the Fourth Amendment “extends its reach only to ‘the people,'” which “seems to have been a term of art employed in select parts of the Constitution,” including the “Preamble, Article I, and the First, Second, Fourth, Ninth, and Tenth Amendments.” Id. at 265, 110 S. Ct. 1056. The Court found this “textural exegesis” to suggest that “the people” in the Constitution “refers to a class of persons who are part of the national community or who have otherwise developed sufficient connection with this country to be considered a part of that community.” Id. The Court then examined the history of the drafting of the Fourth Amendment and concluded that “the available historical data shows...that the purpose of the Fourth Amendment was to protect the people of the United States against arbitrary action by their own Government; it was never suggested that the provision was intended to restrain the actions of the Federal Government against aliens outside of the United States territory.” Id. at 266, 110 S. Ct. 1056. The Supreme Court distinguished cases that claimant Verdugo-Urquidez relied on for the suppression request noting that those cases “established only that aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country.” Id. at 271, 110 S. Ct. 1056. The Court criticized and rejected the Court of Appeals ruling that had applied a global application of the Fourth Amendment. The Court then concluded that the “Fourth Amendment has no application.” Id. at 274­75, 110 S. Ct. 1056.

United States v. Verdugo-Urquidez, 494 U.S. 259, 110 S. Ct. 1056, 108 L. Ed. 2d 222 (1990), clarified the Fourth Amendment's application to illegal aliens by use of the sufficient connections test and its related interpretation of the Fourth Amendment text. District of Columbia v. Heller, 554 U.S. 570, 580 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008) favorably cited Verdugo-Urquidez's definition of “the people” and again stated the test is that “aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country.”

The current law is that Ismael Lopez had arguable Fourth Amendment civil rights only when he came within the territory of the United States and developed voluntary substantial connections with this country. Ismael Lopez never established voluntary substantial connections with this country as shown by Motion Exhibit 1 and there is no constitutional claim. The application of the sufficient connections requirement of Verdugo-Urquidez relied on more than just the text of the Fourth Amendment as the opinion cites the history of the Fourth Amendment at 266, 110 S. Ct. 1056, prior precedent at 268-73, 110 S. Ct. 1056, and practical consequences at 273-75, 110 S. Ct. 1056.

Aliens in the United States may acquire Fourth Amendment protection. See for example Martinez-Aguero v. Gonzalez, 459 F. 3d 618, 625 (5th Cir. 2006) holding that an alien's regular and lawful entry of the United States pursuant to a valid border-crossing card, reentry based on verbal statements by an American official, and acquiescence in the U.S. system of immigration constituted voluntary acceptance of societal obligations rising to the level of “substantial connections” sufficient to invoke the Fourth Amendment. In contrast the status of Ismael Lopez was more like that of a deported alien standing at the border of the United States and Mexico but still in Mexico as he had no permission to enter and multiple Court orders that barred entry. See for example the discussion of the crimes prosecuted against an illegal alien for illegally entering the United States after having been previously deported in Santacruz-Ramirez v. United States, 2016 WL 8218236 (S.D. Texas 12/29/2016). Any criminal use of force on Ismael Lopez was prohibited by criminal laws but that issue was answered as alleged by Plaintiff in the Complaint when a Grand Jury elected not to indict any person for the subject use of force event.

The conclusion that no blanket Fourth Amendment rights exist for “undocumented aliens” is compelling. See refusal to extend Fourth Amendment protection in De La Paz v. Coy, 786 F. 3d 367 (2015). Relief for civil rights violations was noted available only in the context of the INA. See the definition of “the people” in the context of the Second Amendment holding that an illegal alien in the United States has no Second Amendment Constitutional right. United States v. Portillo-Munoz, 643 F. 3d 437, 440 (5th Cir. 2011). The Fifth Circuit clearly stated in United States v. Portillo- Munoz, 643 F. 3d 437, at 440 that “Portillo relies on Verdugo-Urquidez and argues that he has sufficient connections with the United States to be included in this definition of “the people,” but neither this court nor the Supreme Court has held that the Fourth Amendment extends to a native and citizen of another nation who entered and remained in the United States illegally.” Lawfully admitted aliens are “other persons” for purposes of 42 U.S.C. § 1983. Graham v. Richardson, 403 U.S. 365, 91 S. Ct. 1848, 29 L. Ed. 2d 534 (1971). No such blanket right exists for the claims in the Complaint. Neither Linares nor Lopez are or were one of “the people” within Fourth Amendment purview.

nolu chan  posted on  2019-09-28   17:54:34 ET  Reply   Trace   Private Reply  


#6. To: nolu chan (#0) (Edited)

Officers told investigators they saw a rifle barrel pointed through the open door. At that point, a dog charged out of the house, and Officer Samuel Maze shot at it. Officer Zachary Durden began yelling for the person inside to drop the weapon, then fired several shots through the door.

It's not the red flag that shooting someone in the back would be but it is bad practice to shoot through a door. You don't know who else could be hit by the bullets; it's reckless disregard for safety if you don't know who is present in the building.

I think ICE should show up and deport this woman. She can try to continue her lawsuit from Mexico. If she and her dead maybe-husband weren't here illegally to begin with, those two cops wouldn't have shot him.

We shouldn't allow illegal aliens to sue like this. Deport them the minute they file a lawsuit. American courts are for American citizens and companies/corporations with legal standing. Illegal aliens don't qualify. I would still allow resident aliens (green card) or work/tourism/student visa holders to sue, as long as they were in the country legally at the time of the incident.

Tooconservative  posted on  2019-09-28   21:00:32 ET  Reply   Trace   Private Reply  


#7. To: Tooconservative (#6)

It's not the red flag that shooting someone in the back would be but it is bad practice to shoot through a door. You don't know who else could be hit by the bullets; it's reckless disregard for safety if you don't know who is present in the building.

I believe the argument here is not whether they acted improperly or illegally, but whether the illegal alien questionable wife or questionable son have a right to sue in federal court on the basis set forth. The federal court may, or may not, find jurisdiction. It may find that it is a state matter.

It is doubtful that a father-son relationship or husband-wife relationship lawfully existed. If not, the complainants have no right to sue on behalf of the decedent. This is a separate legal issue on jurisdiction.

I do not know what happened, but I know the case was presented to a grand jury which returned no true bill, and a DOJ investigation did not find cause to prosecute. A plaintiff's Complaint is not exactly a fact driven investigative news report. That never mentions that the subject was an illegal alien, had three deportation orders, or a violent felony conviction.

nolu chan  posted on  2019-09-28   23:47:50 ET  Reply   Trace   Private Reply  


#8. To: nolu chan (#7)

That never mentions that the subject was an illegal alien, had three deportation orders, or a violent felony conviction.

He had been lawfully ordered out of the country. He should have been forcibly removed on the first one. He should have obeyed the law even without being forcibly deported.

He died ultimately because he refused to obey our laws.

Even so, I don't like cops or anyone else, even Joe Biden, just shooting wildly through doors without any idea who is behind them. I disapprove of shooting through doors no matter the legal status of the people behind the door.

As you can see, I follow two tracks of thought on this case but my sympathy disappears after that first deportation order against an illegal. Not to mention the violent felony.

Tooconservative  posted on  2019-09-29   0:04:57 ET  Reply   Trace   Private Reply  


#9. To: Tooconservative (#8)

Even so, I don't like cops or anyone else, even Joe Biden, just shooting wildly through doors without any idea who is behind them.

I disagree with shooting through doors (or otherwise) when one does not know what one is shooting at. That will always be wrong, but not necessarily violate the federal Constitution or justify a federal civil rights action.

nolu chan  posted on  2019-09-29   11:02:09 ET  Reply   Trace   Private Reply  


#10. To: Tooconservative, nolu chan (#8)

Even so, I don't like cops or anyone else, even Joe Biden, just shooting wildly through doors without any idea who is behind them. I disapprove of shooting through doors no matter the legal status of the people behind the door.

The cops were at the wrong house to begin with don't forget.

Government is in the last resort the employment of armed men, of policemen, gendarmes, soldiers, prison guards, and hangmen.
The essential feature of government is the enforcement of its decrees by beating, killing, and imprisoning.
Those who are asking for more government interference are asking ultimately for more compulsion and less freedom.

Deckard  posted on  2019-09-29   11:13:08 ET  Reply   Trace   Private Reply  


#11. To: Deckard (#10)

The cops were at the wrong house to begin with don't forget.

And that affects the federal constitutional rights of Ismael Lopez or Claudia Linares how? Is somebody claiming a violation of constitutional rights by going to the wrong house? Is a mistake of State cops a Federal offense?

nolu chan  posted on  2019-09-29   13:12:00 ET  Reply   Trace   Private Reply  


#12. To: Deckard (#10)

The cops were at the wrong house to begin with don't forget.

I'm not sure this is acceptable routine police procedure to enter a hostile residence. They had no idea who they might hit with their bullets; this was complete disregard for all other occupants of the building (who had to be assumed to be bystanders). Any time the police are putting the public in harm's way by driving very fast in heavy traffic pursuing a defiant speeder or shooting blindly into an occupied house through the doors, you are moving beyond a concern with public safety and are arguably making the method the cops used to enter the residence a far greater hazard to others than the need to apprehend the suspect, who was apparently a minor criminal. And they were at the wrong address anyway.

This cops-can't-find-an-address-and-go-in-guns-blazing scenario happens multiple times a year. Shouldn't we just fire all the cops involved in a wrong-address bust? Aren't they too incompetent to be given badges and guns if they can't find an address and verify it is the correct address? Was the address even correct on the original search warrant? Did they have an arrest warrant? Some of the reporting we have so far on the case leaves some open questions. I'm sure there is more material and evidence that we aren't told about in these blurbs published on various blogs and content farms.

I do notice the generic claim we see in a lot of police abuse cases about the local police having acquired a reputation for brutality and justified homicides during false arrests and so on. In some instances, there is a public record of reckless police harming innocent citizens during traffic stops, during searches, during the service of arrest warrants, during high-speed chases, etc. So the local city attorney and town council may opt to settle and insist on NDAs for all their PD's past abuses. But that doesn't entirely silence the issue. If a local PD becomes known for high-profile abuse scandals from local press and social media, the city faces a much more potentially hostile group of jurors in any civil lawsuit against the city. So that may incline the city's legal advisers to settle rather than risk a jury trial with the attendant publicity.

There is a vast amount of legal strategy and civil liability at stake in public lawsuits of this type. Even with municipal insurance, no city wants to be on the losing end. If they can save money by settling rather than avoiding an ugly court fight that could open up the history of local PD safety failures, they just have more incentive to settle. And so that is what happens so often. Give them $50K or $100K to end the news coverage and make it all go away. It's only the taxpayers' money after all.

Tooconservative  posted on  2019-09-29   14:24:23 ET  Reply   Trace   Private Reply  


#13. To: nolu chan (#11) (Edited)

And that affects the federal constitutional rights of Ismael Lopez or Claudia Linares how?

You forget the government's assertion in court that the "wife" in this case was a "bigamous paramour". To put it nicely. IOW, this woman was willing in pretend to be his mother or his wife or whatever in any given legal scrape he was in, largely related to his outstanding deportation order. nolu documented the government's case.

Motion Exhibit 1 reflects records from the City of Horn Lake, Mississippi on the arrest of Ismael Rodriguez Lopez when he released his truck to “my mother, Maria Martinez” on 3/6/2013. Both he and “Maria Martinez” signed the top page. Exhibit 1 pp. 35-36. These certified government documents evidence a vehicle release by Ismael Rodriguez Lopez to who he claimed as his mother Maria Martinez after his arrest on March 5, 2013 in Horn Lake, Mississippi on charges of improper tag-altered, suspended driver's license, and vehicle insurance law violations on March 13, 2013.

. . .

Defendant City asserts with credible documentary support that Plaintiff Linares was not legally married to Ismael Lopez, that Plaintiff Linares has no standing to sue, no standing exists for the claims related to Ismael Lopez, that Plaintiff Autry was not properly appointed as Administrator, and/or that Administrator Autry was appointed Administrator by virtue of apparent conflicting sworn affidavits and/or material misrepresentations and/or contrary to the requirements of law thereby voiding his appointment ab initio. Neither Plaintiff has standing. All state law claims are barred by sovereign immunity as applied by and retained by the Mississippi Tort Claims Act including but not limited to lack of any presuit tort notice and/or statutes of limitations. The persons claimed as related to Ismael Lopez in the estate proceeding seemingly were not related by law including by the laws of the State of Mississippi or any other applicable laws. Relationships not carrying the dignity of being legally sanctioned or legally protected provide no heirship rights in Mississippi. They also do not serve as civil rights predicates under the Fourth or Fourteenth Amendments of the United States Constitution.

I think I side with the city. While continuing to oppose police just shooting through doors without knowing what's on the other side. But in this case, I think I would have to find for the city. The attempt to pass so many fake legal documents and birth certificates, the constant lying to the courts about their identity (and getting caught doing it), the refusal to just obey the three deportation orders, etc.

These were lawless people, they weren't a family in any normal sense, and they defied lawful deportation orders. Then the cops say they saw a gun barrel pointing at them and they shot up the door, hitting the illegal alien and habitual criminal.

Maybe some of us don't like shooting through doors much but it is still hard to find a way to blame the city.

As a thought exercise, can you tell me of any other country that you know of that would allow such lawless identity theft, passing false documents to government offices, resisting multiple lawful deportation orders? No country puts up with that.

He was a criminal engaged in routine criminal activity. She wasn't his wife. The young man was not his son. There simply is no standing for them to sue, no way to even reach the point where you start to judge the police conduct in the case.

Tooconservative  posted on  2019-09-29   14:40:23 ET  Reply   Trace   Private Reply  


#14. To: Tooconservative (#13)

You forget the government's assertion in court that the "wife" in this case was a "bigamous paramour". To put it nicely. IOW, this woman was willing in pretend to be his mother or his wife or whatever in any given legal scrape he was in, largely related to his outstanding deportation order. nolu documented the government's case.

I am nolu. I provided a link to the Docket Report and the Complaint. The respondent's documents address the claims and issues raised by the complainants.

The couple not being legally married is irrelevant to whether the mistake of going to the wrong house constitutes a federal offense.

Whether the conduct at the house constituted a federal offense is not determined by what house they went to, nor by the marital status of the people who came to the door.

The marital status (or the man being an illegal alien) may determine whether the woman has a right to sue on behalf of the dead man. She cannot sue on behalf of the dead man if she is not kin, even if it was, in fact, wrongful death. She cannot sue for violation of the dead man's rights unless he had those rights.

Whether the 4th or 14th Amendment rights inhere to an alien would seem to depend upon voluntary acceptance of societal obligations rising to the level of “substantial connections” with the United States. On such a legal standard, I believe a court could do as it pleases. The 5th Circuit in Texas and the 9th Circuit in California could reach polar opposite conclusions. Immigration cases primarily affecting Texas and Arizona are filed in California for a reason.

Matt Agorist provides this idiotic claim: Now, according to a document filed by the City of Southaven Tuesday, the city is attempting to justify the murder and dismiss the lawsuit by claiming Lopez has no rights because he was an undocumented immigrant.

Lopez has no rights (present tense) because he is dead. There is no evidence of a murder, but Matt Agorist never lets facts get in the way.

Of course, the "document" did not claim that Lopez had no rights, it claimed that as an illegal alien, convicted felon, and subject of three deportation orders, with no "substantial connections" to American society, Lopez had no legal claim to possess the rights reserved to "the people" by the 4th and 14th Amendments. It is not a "ludicrous claim," nor an "attempt to chip away at the Constitution."

Suit was filed June 19. There are numerous motions to dismiss for insufficiency of service of process. It is Orlyesque. There are such motions on 17 and 20 Sep. There are motions on 24 and 25 Sep seeking an extension of time to effect service. It resembles birther litigation. Assuming they could win the 4th and 14th Amendment issue, they could fail jurisdiction by failure of timely service.

nolu chan  posted on  2019-09-29   17:21:02 ET  Reply   Trace   Private Reply  


#15. To: nolu chan (#14)

The couple not being legally married is irrelevant to whether the mistake of going to the wrong house constitutes a federal offense.

Whether the conduct at the house constituted a federal offense is not determined by what house they went to, nor by the marital status of the people who came to the door.

I think the criminal identity theft being committed and the bigamy did all play a role in the determination of standing to sue. I don't see that the court was ever able to fully determine the deceased's true identity at all.

The defense seems to have successfully asserted these factors which played a major role in denying the fake family any standing in court.

Tooconservative  posted on  2019-09-29   19:12:22 ET  Reply   Trace   Private Reply  


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