TRUTH

TRUTH

    27.12.19  

TRUTH. The actual state of things.

2. In contracts, the parties are bound to toll the truth in their dealings, and a deviation from it will generally avoid the contract; Newl. on Contr. 352-3; 2 Burr. 1011; 3 Campb. 285; and even concealment, or suppressio veri, will be considered fraudulent in the contract of insurance. 1 Marsh. on Ins. 464; Peake's N. P. C. 115; 3 Campb. 154, 506.

3. In giving his testimony, a witness is required to tell the truth, the whole truth, and nothing but the truth; for the object in the examination of matters of fact, is to ascertain truth.

4. When a defendant is sued civilly for slander or a libel, he may justify by giving the truth in evidence; but when a criminal prosecution is instituted by the commonwealth for a libel, he cannot generally justify by giving the truth in evidence.

5. The constitutions of several of the United States have made special provisions in favor of giving the truth in evidence in prosecutions for libels, under particular circumstances. In the constitutions of Pennsylvania, Delaware, Tennessee, Kentucky, Ohio, Indiana and Illinois, it is declared, that in publications for libels on men in respect to their public official conduct, the truth may be given in evidence, when the matter published was proper for public information. The constitution of New York declares, that in all prosecutions or indictments for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous, is true, and was published with good motives and for justifiable ends, the party shall be acquitted. By constitutional provision in Mississippi and Missouri, and by legislative enactment in New Jersey, Arkansas, Tennessee, Act of 1805, c. 6: and Vermont, Rev. Stat. tit. 11, c. 25, s. 68; the right to give the truth in evidence has been more extended; it applies to all prosecutions or indictments for libels, without any qualifications annexed in restraint of the privilege. Cooke on Def. 61.

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More than 20,000 Legal Forms

ARTICLES OF IMPEACHMENT

ARTICLES OF IMPEACHMENT

    22.12.19  

ARTICLES OF IMPEACHMENT

An instrument which, in cases of impeachment, (q. v.) is used, and performs the same office which an indictment does, in a common criminal case, is known by this name. These articles do not usually pursue the strict form and accuracy of an indictment., Wood. Lect. 40, p. 605; Foster, 389, 390; Com. Dig. Parliament, L 21. They are sometimes quite general in the form of the allegations, but always contain, or ought to contain, so much certainty, as to enable the party to put himself on the proper defence, and in case of an acquittal, to avail himself of it, as a bar to another impeachment. Additional articles may, perhaps, be exhibited at any stage of the prosecution. Story on the 806; Rawle on the Const. 216.

2. The answer to articles of impeachment is exempted from observing great strictness of form; and it may contain arguments as well as facts. It is usual to give a full and particular answer to each article of the accusation. Story, 808.

MILITIA

MILITIA

    28.12.17  

MILITIA. The military force of the nation, consisting of citizens called forth to execute the laws of the Union, suppress insurrection and repel invasion.

2. The Constitution of the United States provides on this subject as follows: Art. 1, s. 8, 14. Congress shall have power to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions.

3. - 15. to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia, according to the discipline prescribed by congress.

CHARTER... CHARTERED SHIP

CHARTER... CHARTERED SHIP

    27.12.17  

CHARTER. A grant made by the sovereign either to the whole people or to a portion of them, securing to them the enjoyment of certain rights. Of the former kind is the late charter of France, which extended to the whole country; the charters which were granted to the different American colonies by the British government were charters of the latter species. 1 Story, Const. L. 161; 1 Bl. Com. 108 Encycl. Amer. Charte Constitutionelle.

ELECTION... ELECTORS OF PRESIDENT

ELECTION... ELECTORS OF PRESIDENT

    14.8.17  

ELECTION. This term, in its most usual acceptation, signifies the choice which several persons collectively make of a person to fill an office or place. In another sense, it means the choice which is made by a person having the right, of selecting one of two alternative contracts or rights. Elections, then, are of men or things.

2. - §1. Of men. These are either public elections, or elections by companies or corporations.

HABEAS CORPUS

HABEAS CORPUS

    15.7.17  

HABEAS CORPUS, remedies A writ of habeas corpus is an order in writing, signed by the judge who grants the same, and sealed with the seal of the court of he is a judge, issued in the name of the sovereign power where it is granted, by such a court or a judge thereof, having lawful authority to issue the same, directed to any one having a person in his custody or under his restraint, commanding him to produce, such person at a certain time and place, and to state the reasons why he is held in custody, or under restraint.

2. This writ was it common law considered as a remedy to remove the illegal restraint on a freeman. But anterior to the 31 Charles II. its benefit was, in a great degree, eluded by time-serving judges, who awarded it only in term time, and who assumed a discretionary power of awarding or refusing it. 3 Bulstr. 23. Three or four years before that statute was passed there had been two very great cases much agitated in Westminster Hall, upon writs of habeas corpus for private custody, viz: the cases of Lord Lei-ah: 2 Lev; 128; and Sir Robert Viner, Lord Mayor.of London. 3 Keble, 434, 447, 470, 504; 2 Lev. 128; Freem. 389. But the court has wisely drew the line of distinction between civil constitutional liberty, as opposed to the power of the crown, and liberty as opposed to the violence and power of private persons. Wilmot's Opinions, 85, 86.

3. To secure the full benefit of it to the subject the statute 81 Car. II. c. 2, commonly calfed the habeas corpus act, was passed. This gave to the. writ the vigor, life, and efficacy requisite for the due protection of the liberty of the subject. In England this. is considered as a high prerogative writ, issuing out of the court of king's bench, in term time or vacation, and running into every part of the king's dominions. It is also grantable as a matter of right, ex debito justitae, upon the application of any person.

4. The interdict De homine libero exhibendo of the Roman law, was a remedy very similar to the writ of habeas corpus. When a freeman was restrained by another, contrary to good faith, the praetor ordered that such person should be brought before him that he might be liberated. Dig.43, 29, 1.

5. The habeas corpus act has been substantially incorporated into the jurisprudance of every state in the Union, and the right to the writ has been secured by most of the constitutions of the states, and of the United States. The statute of 31 Car. II. c. 2, provides that the person imprisoned, if he be not a prisoner convict, or in execution of legal process, or committed for treason or felony, plainly expressed in the warrant, or has not neglected wilfully, by the space of two whole terms after his imprisonment, to pray a habeas corpus for his enlargement, may apply by any one in his behalf, in vacation time, to a judicial officer for the writ of habeas corpus, and the officer, upon view of the copy of the warrant of commitment, or upon proof of denial of it after due demand, must allow the writ to be directed to the person in whose custody the party is detained, and made returnable immediately before him. And, in term time, any of the said prisoners may obtain his writ of habeas corpus, by applying to the proper court.

6. By the habeas corpus law of Pennsylvania, (the Act of February 18, 1785,) the benefit of the writ of habeas corpus is given in "all cases where any person, not being committed or detained for any criminal, or supposed criminal matter," Who "shall be confined or restrained of his or her liberty, under any color or pretence whatsoever." A similar provision is contained in the habeas corpus act of New York. Act of April 21, 1818, sect. 41, ch. 277.

7. The Constitution of the United State art. 1, s. 9, n. 2, provides, that " the privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it and the same principle is contained in many of the state constitutions. In order still more to secure the citizen the benefit of this great writ, a heavy penalty is inflicted upon the judges who are bound to grant it, in case of refusal.

8. It is proper to consider, 1. When it is to be granted. 2. How it is to be served. 3. What return is to be made to it. 4. The bearing. 5. The effect of the judgment upon it.

9. - 1. The writ is to be granted whenever a person is in actual confinement, committed or detained as aforesaid, either for a criminal charge, or, as in Pennsylvania and New York, in all cases where he is confined or restrained of his liberty, under any color or pretence whatsoever. But persons discharged on bail will not be considered as restrained of their liberty so as to be entitled to, a writ of habeas corpus, directed to their bail. 3 Yeates, R. 263; 1 Serg & Rawle, 356.

10. - 2. The writ may be served by any free person, by leaving it with the person to whom it is directed, or left at the gaol or prison with any of the under officers, under keepers, or deputy of the said officers or keepers. In Louisiana, it is provided, that if the person to whom it is addressed shall refuse to receive the writ, he who is charged to serve it, shall inform him of its contents; if he to whom the writ is addressed conceal himself, or refuse admittance to the person charged to serve it on him, the latlat shall affix the order on the exterior of the place where the person resides, or in which the petitioner is so confined. Lo. Code of Pract. art. 803. The service is proved by the oath of the party making it.

11. - 3. The person to whom the writ is addressed or directed, is required to make a return to it, within the time prescribed; he either complies, or he does not. If, he complies, he must positively answer, 1. Whether he has or has not in his power or custody the person to be set at liberty, or whether that person is confined by him; if he return that he has not and has not had him in his power or custody, and the return is true, it is evident that a mistake was made in issuing the writ; if the return is false, he is liable to a penalty, and other punishment, for making such a, false return. If he return that he has such person in his custody, then he must show by his return, further, by what authority, and for what cause, he arrested or detained him. If he does not comply, he is to be considered in contempt of the court under whose seal the writ has been issued, and liable to a severe penalty, to be recovered by the party aggrieved.

12. - 4. When the prisoner is brought, before the judge, his judicial discretion commences, and he acts under no other responsibility than that which belongs to the exercise of ordinary judicial power. The judge or court before whom the prisoner is brought on a habeas corpus, examines the return and Papers, if any, referred to in it, and if no legal cause be shown for the imprisonment or restraint; or if it appear, although legally committed, he has not been prosecuted or tried within the periods required by law, or that, for any other cause, the imprisonment cannot be legally continued, the prisoner is discharged from custody. In the case of wives, children, and wards, all the court does, is to see that they ire under no illegal restraint. 1 Strange, 445; 2. Strange, 982; Wilmot's Opinions, 120.

13. For those offences which are bailable, when the prisoner offers sufficient bail, he is to be bailed.

14. He is to be remanded in the following cases: 1. When it appears he, is detained upon legal process, out of some court having jurisdiction of criminal matters, 2. When he is detained by warrant, under the hand and seal of a magistrate, for some offence for which, by law, the prisoner is not bailable. 3. When he is a convict in execution, or detained in execution by legal civil process. 4. When he is detained fora contempt, specially and plainly charged in the commitment, by some existing court, having authority to commit for contempt. 5. When he refuses or neglects to give the requisite bail in a case bailable of right. The judge is not confined to the return, but he is to examine into the causes of the imprisonment, and then he is to discharge, bail, or remand, as justice shall require. 2 Kent, Com. 26; Lo. Code of Prac. art. 819.

15. - 5. It is provided by the habeas corpus act, that a person set at liberty by the writ, shall not again be imprisoned for the same offence, by any person whomsoever, other than by the legal order and process of such court wherein he shall be bound by recognizance to appear, or other court having jurisdiction of the cause. 4 Johns. R. 318; 1 Binn. 374; 5 John. R.282.

16. The habeas corpus can be suspended only by authority of the legislature. The constitution of the United States provides, that the privilege of the writ of habeas corpus shall not be suspended unless when, in cases of invasion and rebellion, the public safety may require it. Whether this writ ought to be suspended depends on political considerations, of which the legislature, is to decide. 4 Cranch, 101. The proclamation of a military chief, declaring martial law, cannot, therefore, suspend the operation of the law. 1 Harr. Cond. Rep. Lo. 157, 159 3 Mart. Lo. R. 531.

17. There are various kinds of this writ; the principal of which are explained below.

18. Habeas corpus ad deliberandum et recipiendum, is a writ which lies to remove a prisoner to take his trial in the county where the offence was committed. Bac. Ab. Habeas Corpus, A.

19. Habeas corpus ad faciendum et recipiendum, is a writ which issues out of a court of competent jurisdiction, when a person is sued in an inferior court, commanding the inferior judges to produce the body of the defendant, together with the day and cause of his caption and detainer, (whence this writ is frequently denominated habeas corpus cum causa) to do and receive whatever the court or the judge issuing the writ shall consider in that behalf. This writ may also be issued by the bail of a prisoner, who has been taken upon a criminal accusation, in order to surrender him in his own discharge; upon. the return of this writ, the court will cause an exoneretur to be entered on the bail piece, and remand the prisoner to his former custody. Tidd's Pr. 405; 1 Chit. Cr. Law, 182.

20. Habeas corpus ad prosequendum, is a writ which issues for the purpose of removing a prisoner in order to prosecute. 3 Bl. Com. 130.

21. Habeas corpus ad respondendum, is a writ which issues at the instance of a creditor, or one who has a cause of action against a person who is confined by the process of some inferior court, in order to remove the prisoner and charge him with this new action in the court above. 2 Mod.198; 3 Bl. Com. 107.

22. Habeas corpus ad satisfaciendum, is a writ issued at the instance of a plaintiff for the purpose of bringing up a prisoner, against whom a judgment has been rendered, in a superior court to charge him with the process of execution. 2 Lill. Pr. Reg. 4; 3 Bl. Com. 129, 130.

23. Habeas corpus ad subjiciendum, by way of eminence called the writ of habeas corpus, (q. v.) is a writ directed to the person detaining another, and commanding him to produce the body of the prisoner, with the day and cause of his caption and detention, ad faciendum, subjiciendum, et recipiendum, to do, submit to, and receive, whatsoever the judge or court awarding such writ shall consider in that behalf. 3 Bl. Com. 131; 3 Story, Const. §1333.

24. Habeas corpus ad testificandum, a writ issued for the purpose of bringing a prisoner, in order that he may testify, before the court. 3 Bl. Com. 130.

25. Habeas corpus cum causa, is a writ which may be issued by the bail of a prisoner, who has been taken upon a criminal accusation, in order to render him in their own discharge. Tidd's Pr. 405. Upon the return of this writ the court will cause an exoneretur to be entered on the bail piece, and remand the defendant to his former custody. Id. ibid.; 1 Chit. Cr. Law132. Vide, generally, Bac. Ab. h. t.; Vin. Ab. h. t.; Com. Dig. h. t.; Nels. Ab. h. t.; the various American Digests, h. t.; Lo. Code of Prac. art. 791 to 827; Dane's Ab. Index, h. t.; Bouv. Inst. Index, h. t.

CITIZEN

CITIZEN

    4.7.17  

CITIZEN, persons. One who, under the constitution and laws of the United States, has a right to vote for representatives in congress, and other public officers, and who is qualified to fill offices in the gift of the people. In a more extended sense, under the word citizen, are included all white persons born in the United States, and naturalized persons born out of the same, who have not lost their right as such. This includes men, women, and children.

2. Citizens are either native born or naturalized. Native citizens may fill any office; naturalized citizens may be elected or appointed to any office under the constitution of the United States, except the office of president and vice-president. The constitution provides, that " the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states." Art. 4, s. 2.

3. All natives are not citizens of the United States; the descendants of the aborigines, and those of African origin, are not entitled to the rights of citizens. Anterior to the adoption of the constitution of the United States, each state had the right to make citizens of such persons as it pleased. That constitution does not authorize any but white persons to become citizens of the United States; and it must therefore be presumed that no one is a citizen who is not white. 1 Litt. R. 334; 10 Conn. R. 340; 1 Meigs, R. 331.

4. A citizen of the United States, residing in any state of the Union, is a citizen of that state. 6 Pet. 761 Paine, 594;1 Brock. 391; 1 Paige, 183 Metc. & Perk. Dig. h. t.; vide 3 Story's Const. 1687 Bouv. Inst. Index, b. t.; 2 Kent, Com. 258; 4 Johns. Ch. R. 430; Vatt. B. 1, c. Id, 212; Poth. Des Personnes, tit. 2, s. 1. Vide Body Politic; Inhabitant.

CONSTITUTION

CONSTITUTION

    3.7.17  

CONSTITUTION,, government. The fundamental law of the state, containing the principles upon which the government is founded, and regulating the divisions of the sovereign powers, directing to what persons each of these powers is to be confided, and the, manner it is to be exercised as, the Constitution of the United States. See Story on the Constitution; Rawle on the Const.

2. The words constitution and government (q. v.) are sometimes employed to express the same idea, the manner in which sovereignty is exercised in each state. Constitution is also the name of the instrument containing the fundamental laws of the state.

3. By constitution, the civilians, and, from them, the common law writers, mean some particular law; as the constitutions of the emperors contained in the Code.

CONSTITUTION, contracts. The constitution of a contract, is the making of the contract as, the written constitution of a debt. 1 Bell's Com. 332, 5th ed.

AMENDMENT

AMENDMENT

    2.7.17  

AMENDMENT, legislation. An alteration or change of something proposed in a bill.

2. Either house of the legislature has a rigt to make amendments; but, when so made, they must be sanctioned by the other house before they can become a law. The senate has no power to originate any money bills, (q. v,) but may propose and make amendments to such as have passed the House of representatives. Vide Congress; Senate.

3. The constitution of the United States, art. 5, and the constitutions of some of the states, provide for their amendment. The provisions contained in tho constitution of the United States, are as follows: "Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to this constitution, or, on the application of the legislatures of two-thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid, to all intents and purposes, as part of this constitution, when ratified by the legislatures of three-fourths of the several states, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by Congress: Provided, that no amendment which may be made prior to the year one thousand eight hundred and eight, shall, in any manner, affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate."

BY-LAWS

BY-LAWS

    1.7.17  

BY-LAWS. Rules and ordinances made by a corporation for its own government.

2. The power to make by-laws is usually conferred by express terms of the charter creating the corporation, though, when not expressly granted, it is given by implication, and it is incident to the very existence of a corporation. When there is an express grant, limited to certain cases and for certain purposes, the corporate power of legislation is confined to the objects specified, all others being excluded by implication. 2 Kyd on Corp. 102; 2 P. Wms. 207; Ang. on Corp. 177. The power of making by-laws, is to be exercised by those persons in whom it is vested by the charter; but if that intrument is silent on that subject, it resides in the members of the corporation at large. Harris & Gill's R. 324; 4 Burr. 2515, 2521; 6 Bro. P. C. 519.

3. The constitution of the United States, and acts of congress made in conformity to it the constitution of the state in which a corporation is located, and acts of the legislature, constitutionally made, together with the common-law as there accepted, are of superior force to any by-law; and such by-law, when contrary to either of them, is therefore void, whether the charter authorizes the making of such by-law or not; because no legislature can grant power larger than they themselves possess. 7 Cowen's R. 585; Id. 604 5 Cowen's R. 538. Vide, generally, Aug. on Corp. ch. 9; Willc. on Corp. ch. 2, s. 3; Bac. Ab. h. t.; 4 Vin. Ab. 301 Dane's Ab. Index, h. t., Com. Dig. h. t.; and Id. vol. viii. h. t.

USURPATION

USURPATION

    1.7.17  

USURPATION, government. The tyrannical assumption of the government by force contrary to and in violation of the constitution of the country.

USURPER

USURPER

    1.7.17  

USURPER, government. One who assumes the right of government by force, contrary to and in violation of the constitution of the country. Toull. Dr. Civ. n. 32. Vide Tyranny,

CONSTITUTION OF THE UNITED STATES OF AMERICA

CONSTITUTION OF THE UNITED STATES OF AMERICA

    30.6.17  

CONSTITUTION OF THE UNITED STATES OF AMERICA. The fundamental law of the United States.

2. It was framed by a convention of the representatives of the people, who met at Philadelphia, and finally adopted it on the 17th day of September, 1787. It became the law of the land on the first Wednesday in March, 1789. 5 Wheat. 420.

3. A short analysis of this instrument, so replete with salutary provisions for insuring liberty and private riglits, and public peace and prosperity, will here be given.

4. The preamble declares that the people of the United States, in order to form a more perfect union, establish justice, insure public tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to themselves and their posterity, do ordain and establish this constitution for the United States of America.

5. - 1. The first article is divided into ten sections. By the first the legislative power is vested in congress. The second regulates the formation of the house of representatives, and declares who shall be electors. The third provides for the organization of the senate, and bestows on it the power to try impeachments. The fourth directs the times and places of holding elections and the time of meeting of congress. The fifth determines the power of the respective houses. The sixth provides for a compensation to members of congress, and for their safety from arrests and disqualifies them from holding certain offices. The seventh directs the manner of passing bills. The eighth defines the powers vested in congress. The ninth contains the following provisions: 1st. That the migration or importation of persons shall not be prohibited prior to the year 1808. 2d. That the writ of habeas corpus shall not be suspended, except in particular cases. 3d. That no bill of attainder, or ex post facto law, shall be passed. 4th. The manner of laying taxes. 5th. The manner of drawing money out of the treasury. 6th. That no title of nobility shall be granted. 7th. That no officer shall receive a present from a foreign government. The tenth forbids the respective states to exercise certain powers there enumerated.

6. - 2. The second article is divided into four sections. The first vests the executive power in the president of the United States of America, and provides for his election, and that of the vice-president. The second section confers various powers on the president. The third defines his duties. The fourth provides for the impeachment of the president, vice-president, and all civil officers of the United States.

7. - 3. The third article contains three sections. The first vests the judicial power in sundry courts, provides for the tenure of office by the judges, and for their compensation. The second provides for the extent of the judicial power, vests in the supreme court original jurisdiction in certain cases, and directs the manner of trying crimes. The third defines treason, and vests in congress the power to declare its punishment.

8. - 4. The fourth article is composed of four sections. The first relates to the faith which state records, &c., shall have in other states. The second secures the rights of citizens in the several states for the delivery of fugitives from justice or from labor. The third for the admission of new states, and the government of the territories. The fourth guaranties to every state in the Union the republican form of government, and protection from invasion or domestic violence.

9. - 5. The Fifth Article provides for amendments to the constitution.

10. - 6. The sixth article declares that the debts due under the confederation shall be valid against the United States; that the constitution and treaties made under its powers shall be the supreme law of the land that public officers shall be required by oath or affirmation to support the Constitution of the United States that no religious test shall be required as a qualification for office.

11. - 7. The seventh article directs what shall be a sufficient ratification of this constitution by the states.

12. In pursuance of the fifth article of the constitution, articles in addition to, and amendment of, the constitution, were proposed by congress, and ratified by the legislatures of the several states. These additional articles are to the following import:

13. - 1. Relates to religious freedom; the liberty of the press; the right of the people to assemble and petition.

14. - 2. Secures to the people the right to bear arms.

15. - 3. Provides for the quartering of soldiers.

16. - 4. Regulates the right of search, and of arrest on criminal charges.

17. - 5. Directs the manner of being held to answer for crimes, and provides for the security of the life, liberty and property of the citizens.

18. - 6. Secures to the accused the right to a fair trial by jury.18. - 6. Secures to the accused the right to a fair trial by jury.

19. - 7. Provides for a trial by jury in civil cases.

20. - 8. Directs that excessive bail shall not be required; nor excessive fines imposed nor cruel and unusual punishments inflicted.

21. - 9. Secures to the people the rights retained by them.

22.- 10. Secures the rights to the states, or to the people the rights they have not granted.

23. - 11. Limits the powers of the courts as to suits against one of the United States.

24. - 12. Points out the manner of electing the president and vice-president.

International Refugee Assistance Project ("IRAP") v. Trump

International Refugee Assistance Project ("IRAP") v. Trump

    26.5.17  

RICHMOND, Va. — In a 10-3 ruling, a federal appeals court today ruled President Trump’s revised Muslim ban executive order is unconstitutional (first EO was signed Jan. 27). The full Fourth Circuit Court of Appeals heard the case earlier this month.

The American Civil Liberties Union, ACLU of Maryland, and National Immigration Law Center brought the challenge on behalf of HIAS, the International Refugee Assistance Project, the Middle East Studies Association, and individuals affected by the ban.

Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project who argued the case, had this reaction:

“President Trump’s Muslim ban violates the Constitution, as this decision strongly reaffirms. The Constitution’s prohibition on actions disfavoring or condemning any religion is a fundamental protection for all of us, and we can all be glad that the court today rejected the government’s request to set that principle aside.”

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Case Name
International Refugee Assistance Project ("IRAP") v. Trump     IM-MD-0004
Docket / Court     8:17-cv-00361-TDC ( D. Md. )    
State/Territory     Maryland    
Case Type(s)     Immigration
Presidential Authority
Special Collection     Civil Rights Challenges to Trump Refugee/Visa Order

Attorney Organization     ACLU Chapters (any)
ACLU National (all projects)

Case Summary    On February 7, 2017, several individual U.S. immigrants, the International Refugee Project (IRAP), and HIAS, a refugee resettlement and advocacy organization, filed this class action suit on behalf of all their clients. Represented by the ACLU and the National Immigration Law Center, plaintiffs brought the suit in the U.S. District Court for the District of Maryland. The complaint challenged, in its entirety, President Trump’s January 27, 2017 Executive Order limiting admission to the U.S. for nationals of seven majority-Muslim countries and suspending the U.S. refugee program. IRAP is an organization that provides free legal services to refugees seeking to resettle in the United States. The complaint states that the overwhelming majority of IRAP’s plaintiffs are Muslim. HIAS is a refugee resettlement agency that provides programs and legal services to refugees who have recently resettled in the United States. Many of its clients are from the seven countries listed on the executive order. The case was assigned to Judge Theodore D. Chuang.

The complaint argued that Executive Order was intended and designed to discriminate against Muslims and “does just that in operation.” The complaint focused on the disproportionate impact the executive order had on Muslims and argued that the order’s chaotic and irregular policy changes indicate that it intended to discriminate against Muslims. Plaintiffs alleged that the Executive Order violated the First Amendment Establishment Clause, Fifth Amendment equal protection rights, the Immigration and Nationality Act, the Religious Freedom Restoration Act, the Refugee Act, and the Administrative Procedure Act.

Plaintiffs sought class certification on behalf of all persons “in the United States for whom the Executive Order either interferes with family reunification or the ability to travel internationally and return to the United States.”

The complaint sought a preliminary and permanent injunction enjoining defendants from implementing the executive order. Additionally, the complaint sought a declaration from the court that the entire executive order is unlawful.

On Feb. 22, the plaintiffs filed a motion for expedited discovery and a motion for a preliminary injunction. The preliminary injunction motion sought to "enjoin Defendants from enforcing § 5(d) of President Trump’s January 27, 2017 Executive Order...[which] reduces the annual number of refugees who may be admitted to the United States this year by more than half." The motion argued that "[i]f § 5(d) is not enjoined, no additional refugees can be approved and admitted for resettlement this fiscal year. Thousands of those already approved will not be allowed to resettle in the United States."

In early March, several organizations filed amicus briefs in support of plaintiffs, including the Harvard Immigration and Refugee Clinical Program, the Anti-Defamation League, the American Jewish World Service on behalf of over fifty faith organizations. Those briefs are available below.

Prompted by adverse developments in the Ninth Circuit in another case challenging the Executive Order, in Washington v. Trump, on Mar. 6, 2017, the President rescinded the Jan. 27 Executive Order and replaced it with a narrower one, Executive Order 13780. That day, the government filed notice in this case of the new Executive Order.

After the new Executive Order was signed, defendants conferred with plaintiffs to discuss whether they planned to rescind their motion for preliminary injunction. Plaintiffs declined to rescind the motion because the new EO still substantially reduced refugee admission. Instead, on Mar. 10, plaintiffs filed an amended complaint. The complaint argued that "the March 6 Order was motivated by the same anti-Muslim purpose that motivated the January 27 Order, and continued to seek to prevent the entry of Muslims into the United States. The amended complaint sought declaratory and injunctive relief on the basis that the new executive order violates the Establishment Clause, Fifth Amendment equal protection and due process rights; the Religious Freedom Restoration Act, the anti-discrimination provisions of the Immigration and Nationality Act, the Refugee Act of 1980 as amended, and the Administrative Procedure Act. Concurrently, plaintiffs filed a motion for a temporary restraining order and/or preliminary injunction and a supplemental motion to expedite discovery "so that the Court may have the benefit of additional evidence bearing on the central question of the March 6 Order’s discriminatory intent."

On Mar. 11, plaintiffs filed an amended motion for a temporary restraining order. The defendants responded two days later, arguing that the no emergency existed. The defendants also filed a brief in opposition to the plaintiff's motion for expedited discovery. On Mar. 13, plaintiffs filed a response in support of the temporary restraining order motion. Plaintiffs argued that they had standing because the revised executive order directly harms plaintiffs as organizations that serve refugees. The executive order, plaintiffs argued, had forced HIAS and IRAP to divert substantial resources away from their core missions of providing free legal services to refugees as well as scale back the number of new clients they can take on. Additionally, plaintiffs argued that they met the requirements for asserting third-party legal standing on behalf of the thousands of refugee clients they are currently serving.

Additionally, on Mar. 13 a group of former national security, foreign policy and intelligence officials filed an amicus brief in support of plaintiffs. The authors of the brief argued that the executive order serves no national or security purpose and that it will do long-term damage to national security and foreign policy interests.

On March 16, the morning after a hearing, Judge Chuang granted a nationwide preliminary injunction against the travel ban portion of the second Executive Order.

In response, the defendants appealed to the U.S. Court of Appeals for the Fourth Circuit. Immediately, defendants moved for an expedited hearing, citing national security concerns and noting that several other courts adjudicating challenges to the executive order have expedited review. The court agreed to an expedited schedule. Defendants then also filed a motion for a stay pending the appeal. The court then asked both parties to submit their positions on initial en banc review--that is, whether the case should be heard by the full set of Fourth Circuit judges, not just the ordinary panel of three. Defendants quickly responded in support. Plaintiffs followed suit, finding that "although the government views the issues in this case through a different lens," en banc review was appropriate in light of the case's importance.

The other issue on appeal was a stay of the preliminary injunction, while the appeal proceeded. On Mar. 31, plaintiffs filed their opposition to the government's motion for a stay; defendants replied on Apr. 5. On Apr. 14, the plaintiffs filed their response to the defendants' opening merits appellate brief, arguing that the government improperly "urges this Court to look away...[and] blind themselves to the ample, public, and uncontested evidence of improper purpose—even in the President’s post-election statements—and instead accept, without question, whatever the government said its purpose was in the revised Order." Defendants filed their reply brief on Apr. 22.

(Three days after the defendants filed their reply brief, a plaintiff from Sarsour v. Trump moved to intervene in the appeal. Defendants opposed that motion in a brief submitted on Aprl. 27 on the grounds that the motion is untimely and seeks to introduce a new issue.)

Meanwhile, back in the district court, several procedural updates occurred. Judge Chuang held a telephone status conference on Mar. 21. On that day, plaintiffs also filed notice of intent to file a new motion for a preliminary injunction as to the new EO's provision regarding the U.S. Refugee Admissions Program. Plaintiffs' brief was filed Mar. 24 and Defendants' on Mar. 31. On Apr. 5, plaintiffs filed a response to defendant's brief. On Mar. 22, plaintiffs filed a notice withdrawing their motion for expedited discovery. The court then denied without prejudice the various pending motions for further relief, in light of the pending appeal and the nationwide injunction resulting from Hawai'i v. Trump.

Back in the appeals court, oral arguments took place on May 8, with the court sitting en banc. On May 11, the court granted plaintiffs' unopposed motion to supplement the record to support one of the plaintiff's standing argument (John Doe #3).

In the appeals court, a series of amici filed briefs, including: On Mar. 31, the following entities filed briefs in support of the plaintiffs: a U.S. resident of Yemeni descent, numerous higher education institutions, numerous states, numerous cities, former national security officials, Americans United for Separation of Church and State, Bend the Arc, Southern Poverty Law Center, and the American-Arab Anti-Discrimination Committee. The same day, the following entities filed briefs in support of the defendants: U.S. Justice Foundation, Citizens United, Citizens United Foundation, English First Foundation, English First, Public Advocate of the United States, Gun Owners Foundation, Gun Owners of America, Conservative Legal Defense and Education Fund, U.S. Border Control Foundation, Policy Analysis Center, Immigration Reform Law Institute, American Civil Rights Union, Southeastern Legal Foundation, and the American Center for Law and Justice. On Apr. 4, New York University filed an amicus brief in support of the plaintiffs. On Apr. 13, the MacArthur Justice Center filed a brief in support of the plaintiffs. On Apr. 17, international law scholars and nongovernmental organizations filed a brief in support of the plaintiffs. Numerous briefs were filed on Apr. 19 in support of the plaintiffs from:
•    Medical Institutions, Advocacy Organizations, and Individual Physicians
•    Tahirih Justice Center, The Asian Pacific Institute on Gender-Based Violence, Casa de Esperanza, and National Domestic Violence Hotline
•    Interfaith Group of Religious and Interreligious Organizations
•    Oxfam America, Inc.
•    Americans United for Separation of Church and State, Bend the Arc and Southern Poverty Law Center
•    Constitutional Law Professors
•    The American Jewish Committee
•    Immigration Law Scholars and Clinicians
•    Cato Institute; Muslim Advocates, American Muslim Health Professionals, Muppies, Inc., National Arab American Medical Association, Network of Arab American Professionals
•    The American Alliance of Museums, The College Art Association, and 94 Art Museums
•    American Professional Society on the Abuse of Children
•    Advocate for Human Rights, Asian Law Alliance, Asian Pacific American Network of Oregon, CASA, Community Refugee & Immigration Services, Immigrant Law Center of Minnesota, Immigrant Rights Clinic of Washington Square Legal Services, Inc., Integrated Refugee and Immigrant Services, The Southeast Asia Resource Action Center
•    Airport Attorneys Coalition
•    The American-Arab Anti-Discrimination Committee
•    and Massachusetts Technology Leadership Council.
On May 25, 2017, the en banc court affirmed the preliminary injunction in its entirety, except that it held that President Trump was not personally enjoined. (The court noted, however, that Presidential action remained unreviewable, in suits against the officers assigned to enforce the President’s directives. "Even though the President is not 'directly bound' by the injunction, we 'assume it is substantially likely that the President . . . would abide by an authoritative interpretation” of Section 2(c) of the Second Executive Order.")

Jamie Kessler - 05/12/2017
Virginia Weeks - 05/10/2017
Ava Morgenstern - 02/15/2017
- 05/25/2017
______________________




  

What is the legal definition of "Obscenity"?

What is the legal definition of "Obscenity"?

    26.1.17  

As defined by Miller v. California’s three prong test, to be obscene material must (1) be a work that the average person, applying contemporary community standards would find, taken as a whole, appeals to the prurient interest and (2) the work must depict or describe, in a patently offensive way, sexual conduct specifically defined by the applicable obscenity law, and (3) the work, taken as a whole, must lack serious literary, artistic, political or scientific value.

Definition of "True Threats"

Definition of "True Threats"

    26.1.17  

True threats are defined as “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” 

To be a true threat, “the speaker need not actually intend to carry out the threat.” True threats are distinguishable from political hyperbole, which is protected political expression. Intimidation “is a type of true threat, where the speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.”

What is the legal meaning of "Fighting Words"

What is the legal meaning of "Fighting Words"

    26.1.17  

Fighting words are a narrow category of unprotected speech that are defined as words spoken in a face to face exchange such as personal insults or epithets which by their very utterance are likely to cause the person to whom they are addressed to respond with violence directed at the speaker.

Fighting words must be insults personally directed at the person they are addressed to and not political statements that the hearer finds deeply offensive to his or her beliefs. Therefore, it is necessary to distinguish between provocative political speech that is fully protected and unprotected fighting words.

Categories of Unprotected Speech

Categories of Unprotected Speech

    26.1.17  

Categories of Unprotected Speech in US Constitution:

        Obscenity
        Blackmail
        Defamation (i.e., libel, slander)
        Child pornography
        Fighting words
       Incitement to imminent lawless action
        Perjury
        Solicitations to commit crimes
        True threats

SILENCE

SILENCE

    9.1.17  

SILENCE. The state of a person who does not speak, or of one who refrains from speaking.

2. Pure and simple silence cannot be considered as a consent to a contract, except in cases when the silent person is bound in good faith to explain himself, in which case, silence gives consent. 6 Toull. liv. 3, t. 3, n. 32, note; 14 Serg. & Rawle, 393; 2 Supp. to Ves. jr. 442; 1 Dane's Ab. c. 1, art. 4, §3; 8 T. R. 483; 6 Penn. St. R. 336; 1 Greenl. Ev. 201; 2 Bouv. Inst. n. 1313. But no assent will be inferred from a man's silence, unless, 1st. He knows his rights and knows what he is doing and, 2d. His silence is voluntary.

3. When any person is accused of a crime, or charged with any fact, and he does not deny it, in general, the presumption is very strong that the charge is correct. 7 C. & P. 832 5 C. & P. 332; Joy on Conf. s. 10, p. 77.

4. The rule does not extend to the silence of a prisoner, when on his exanination before a magistrate he is charged by another prisoner with having joined him in the commission of an offence: 3 Stark. C. 33.

5. When an oath is administered to a witness, instead of expressly promising to keep it, he gives his assent by his silence, and kissing the book.

6. The person to be affected by the silence must be one not disqualified to act as non compos, an infant, or the like, for even the express promise of such a person would not bind him to the performance of any contract.

7. The rule of the civil law is that silence is not an acknowledgment or denial in every case, qui tacet, non utique fatetur: sed tamen verum est, eum non negaro. Dig. 50, 17, 142.

SECTA pleading

SECTA pleading

    9.1.17  

SECTA pleading. In ancient times the plaintiff was required to establish the truth of his declaration in the first instance, and before it was called in question, upon the pleading, by the simultaneous production of his secta, that is, a number of persons prepared to confirm his allegations. Bract. 214, a.

2. The practice of thus producing a secta, gave rise to the very. ancient formula almost invariably used at the conclusion of a declaration, as entered on the record, et inde producit sectam; and, though the actual production has, for many centuries, fallen into disuse, the formula still remains. Accordingly, except the count on a writ of right, and in dower, all declarations constantly conclude thus, "And therefore he brings his suit, &c. The count on a writ of right did not, in ancient times, conclude with the ordinary production of suit, but with the following formula peculiar to itself, "Et quod tale sit jus suum offert disrationare per corpus, talis liberi hominis, &c., and it concludes, at the present day, with an abbreviated. translation of the same phrase: "And, that such is his right, he offers," &c. The count in dower is an exception to the rule in question, and concludes without any production of suit, a peculiarity which appears always to have belonged to that action. Steph. Pl. 427, 8; 3 Bl. Com. 395; Gilb. C. P. 48; 1 Chit. Pl. 399.