Right to Remain Silent

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notmartha
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Right to Remain Silent

Post by notmartha » Fri May 06, 2016 2:56 pm

I find cases written by and for those "in the know" to often be telling. Such is the case of Rebecca Musarra, an attorney practicing in Delaware, residing in Pennsylvania, and arrested in New Jersey. She exercised her right to remain silent, and then was arrested for "obstruction" after being given her Miranda rights.

The video of the stop is here:

https://youtu.be/_cx2Fkp6Cmw

Here is her civil suit against District of New Jersey, New Jersey State Police, and offending "officer'.
311609484-MUSARRA-v-STATE-OF-NEW-JERSEY-et-al.pdf
(261.05 KiB) Downloaded 358 times
Lots to glean from this case, imo.
Last edited by notmartha on Tue Nov 29, 2016 3:18 pm, edited 2 times in total.
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editor
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Re: Right to Remain Silent

Post by editor » Sat May 07, 2016 6:19 pm

Very interesting, notmartha; thank you for posting.
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notmartha
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Re: Right to Remain Silent

Post by notmartha » Fri Nov 18, 2016 1:42 pm

Updates on progress of this case:

https://www.pacermonitor.com/public/cas ... RSEY_et_al

Note entry for October 12:
Please be advised, for future reference, when adding parties to the docket they should be added in uppercase letters.
The Motion to Dismiss can be found here:
https://www.scribd.com/document/3116415 ... to-Dismiss

Points to ponder from Motion to Dismiss:
Defendants, the State of New Jersey and the New Jersey State Police (hereinafter “Moving Defendants”) now move pursuant to Fed.R.Civ.P. 12(b)(6) for the dismissal of Plaintiff’s claims against them, as said entities are not “persons” subject to suit, and are additionally entitled to immunity under the Eleventh Amendment to the United States Constitution.
The Court also recognized that Congress, in enacting § 1983, did not intend to override well-established common law immunities or defenses, namely that of a State not to be sued without its consent.
although State officials “literally are persons,” an official-capacity claim “is not a suit against the official but rather a suit against the official’s office. As such, it is no different from a suit against the State itself.
the Eleventh Amendment prohibition of lawsuits for damages against the State in federal court also applies when a state official is sued for damages in his or her official capacity.
So... STATE, including STATE "offices", claims sovereign immunity under the 11th Amendment , and can't be sued in Federal Court (they are all federal courts) unless they (STATE) say it is okay for them to be sued...

And... STATE claims that STATE, including STATE agents or officers, are not "persons" under 42 U.S. Code § 1983, even though "person" is qualified to include corporations such as STATE OF NEW JERSEY throughout Title 42, including chapter 21...

Beings STATE offices don't even exist as a matter of law, "officers" need to be sued in their flesh and blood man private capacity. But that won't happen, when the court clerks will only allow uppercase letter fictional entities to be entered on the dockets.

Refer back to Editor's post about trying to get justice:
http://www.lawfulpath.com/forum/viewtop ... f=25&t=891

For Reference:

11th Amendment to U.S. Constitution

http://www.lawfulpath.com/ref/const-ame ... 1-27.shtml
Passed by Congress March 4, 1794. Ratified February 7, 1795.
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. (Note: Article III, Section 2, of the Constitution was modified by Amendment 11.)

Fed.R.Civ.P. 12(b)(6)

https://www.law.cornell.edu/rules/frcp/rule_12
(b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:

(6) failure to state a claim upon which relief can be granted; and

A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim. No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion.

42 U.S. Code § 1983 - Civil action for deprivation of rights

https://www.law.cornell.edu/uscode/pdf/ ... _CH_21.pdf
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
(R.S. § 1979; Pub. L. 96–170, § 1, Dec. 29, 1979, 93 Stat. 1284; Pub. L. 104–317, title III, § 309(c), Oct. 19, 1996, 110 Stat. 3853.)
42 U.S. Code § 1997 - Definitions
(3)
The term “person” means an individual, a trust or estate, a partnership, an association, or a corporation;

Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989)

https://supreme.justia.com/cases/federa ... /case.html
The courts in the following cases have taken the position that a State is a person under § 1983. See Della Grotta v. Rhode Island, 781 F.2d 343, 349 (CA1 1986); Gay Student Services v. Texas A&M University, 612 F.2d 160, 163-164 (CA5), cert. denied, 449 U.S. 1034 (1980); Uberoi v. University of Colorado, 713 P.2d 894, 900-901 (Colo. 1986); Stanton v. Godfrey, 415 N.E.2d 103, 107 (Ind.App. 1981), Gumbhir v. Kansas State Bd. of Pharmacy, 231 Kan. 507, 512-513, 646 P.2d 1078, 1084 (1982), cert. denied, 459 U.S. 1103 (1983); Rahmah Navajo School Bd., Inc. v. Bureau of Revenue, 104 N. M. 302, 310, 720 P.2d 1243, 1251 (App.), cert. denied, 479 U. S. 940 (1986).
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