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Umesh Heendeniya
Law Student & Computer Systems Administrator.
Law Student & Computer Systems Administrator.

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Texas makes it nearly impossible to obtain records in police abuse cases, by Radley Balko, in The Washington Post.
Here’s a harrowing story out of Texas, where a couple in the town of Mesquite have spent the past several years trying to learn how and why their son died after being arrested by local police.
Kathy and Robert Dyer received the phone call out of every parent’s nightmares at 3 a.m. on Aug. 14, 2013. A Mesquite police officer was telling them their 18-year-old son, Graham, was in the hospital with a serious head injury. Outside his room, Kathy recalled, a group of police officers prevented them from entering: “They said he was in serious trouble — that he had felony charges for assaulting an officer.” The police told her Graham had been out of his mind on LSD and had bitten one of the officers while they were taking him into custody. He’d seriously injured himself inside the police cruiser as they drove to the jail.
Graham eventually died. After the funeral, his parents noticed items in the hospital records that didn’t match the police account the night he was arrested. So they asked police department for records. They were denied. As the Austin American-Statesman reports, under state law, police agencies aren’t required to turn over records from investigations that don’t result in a conviction. Because Graham is dead, there would be no conviction. The particularly pernicious thing here is that the law was intended to protect innocent people from being maligned by police investigations that don’t result in criminal charges. Here, it was being used by a police agency to prevent a dead teen’s parents from learning how their son died.
Graham’s parents did finally get the videos, thanks to some smart sleuthing by Kathy Dyer. She had previously asked the FBI to investigate her son’s death. The FBI looked into the matter and concluded that there wasn’t enough evidence to pursue a federal civil rights case against any of the officers involved. But the fact that the FBI did look into it meant that agency may have retained copies of the videos of the incident. She was right. And when the family finally received those videos, they showed clear discrepancies between how her son died and how local police claim he died. He was Tasered repeatedly, including in the testicles, and put in a restraint chair well after he had stopped resisting arrest. Even after Graham showed signs of distress, police waited more than two hours to call an ambulance.
Before they had obtained the video, the Dyers had filed a complaint in federal court. It was quickly dismissed for being too vague. After the videos, a federal district court judge allowed the lawsuit to go forward. This problem isn’t limited to Texas. Law enforcement agencies know that federal courts require specificity in these types of lawsuits. So there’s a strong incentive to be as stingy with information as possible.
We saw this in Kansas, where a couple wrongly raided by a local SWAT team had to spend $25,000 in attorney and court fees just to get a copy of the affidavit for the search warrant the police obtained for the raid. Last year, I wrote about the case of two Michigan women who were wrongly raided by masked Drug Enforcement Administration agents. The agents never gave their names and weren’t wearing badges or name tags. The women spent nine years trying to get the DEA to reveal the agents’ names. It never did, nor would the federal courts compel the agency to do so. The two women finally lost in court last summer — no names, no lawsuit.
It shouldn’t be this difficult to hold law enforcement officers accountable — for possible victims of abuse to get a day in court. Most officers are indemnified by their employing agencies, so this isn’t really about protecting individual police and investigators from frivolous lawsuits. And it’s all the more offensive when, as happened with the Dyers, the very laws designed to protect people from government abuse are used by government agencies to shield themselves from accountability.

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Poster's comment: Click on the red-colored "Stream Online Now" button to watch the video.
Inside Story – Episode One, Part 1: The Warfighters.
INSIDE STORY is a new online video series from Panteao Productions. In Episode One: The Warfighters, Kyle Harth joins Aaron Barruga (Guerrilla Approach) and Robert Keller (Gamut Resolutions) at Bourbon Columbia in downtown Columbia, SC. Together they discuss current and somewhat controversial topics based on questions and comments from our viewers.

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Black girls have been playing with white dolls for a long time, by William Cummings, in USA Today.
Many people were touched by a recent viral story on social media about a white girl who defended her choice of a black doll when a cashier told her the doll didn’t look like her. "Yes, she does. She's a doctor like I'm a doctor. And I'm a pretty girl and she's a pretty girl. See her pretty hair? And see her stethoscope?" said Sophia, 2, according to her mother’s Facebook post about the incident. Little Sophia's indifference to the color of her doll is as adorable as it is inspiring, and both the mother and daughter were heaped with praise on social media.
But, lost in the focus on her heart-melting statement is an important fact: Black girls and boys regularly play with white dolls and action figures without any fanfare. And they have for a long time. Debbie Garrett the author of Black Dolls: A Comprehensive Guide to Celebrating, Collecting, and Experiencing the Passion grew up playing with only white dolls. When she had a daughter, she wanted to "make sure that as African-American child, she saw herself in the dolls that she played with in order to reinforce her significance, her self-worth and self-esteem.
"All children need to see themselves in a positive light, and that begins with their playthings and the books that they read," Garrett said. She said this is particularly important for non-white children "in a society where everything is geared toward whiteness." If that child does not see herself reflected in her toys, books and popular culture, she might think, "'Well, what is wrong with me?'"
Black dolls have been around since people began making dolls, but in the U.S., their availability has always been an issue. Until the 20th century, most black dolls were handmade. By the 1930s, a number of manufacturers were mass-producing black dolls, but African-Americans remained disproportionately underrepresented. For Garrett, who grew up in the South, finding a black doll was compounded by the unwillingness of store owners to stock them. And on the rare occasions when she would stumble upon a black doll, her mother would refuse to buy them because she found their depictions to be too racist.
In light of the paucity of black dolls, it's "of the utmost importance for black children" to have dolls that look like them, Garrett said. Conversely, she argues because "white standards are promoted as the norm," it's important for white children to have dolls that represent different ethnicities, "to promote cultural diversity and an awareness that we are all one race: human."
Samantha Knowles, director of the documentary film Why Do You Have Black Dolls?, agrees. "Black girls have had to play with white dolls for a very long time because they had no other choice," she said. Knowles believes Sophia's story resonates because "people get very excited at the idea that black dolls are desirable." "That little girl loving a black doll was a positive thing because historically they haven't been loved, they haven't even been available," she said.
Knowles takes issue with those who might argue it's hypocritical to say black children should play with black dolls, but white children should play with dolls of other races. She said there is often a "desire to create a false equivalency between two groups of people that historically have not been treated equally in the country. I think that's reflected when you look even down to toys. Historically, black dolls have not been available. So, in reaction, there's been this push to make them available to black kids."
In the 1940s, a study looking into the effects of segregation by psychologists Kenneth and Mamie Clark found that black children not only overwhelmingly preferred white dolls, but they also had negative perceptions of black dolls. The "doll test" was cited in the 1954 Supreme Court case Brown vs. Board of Education, which led to desegregation.
In 2010, Margaret Beale Spencer, a professor of comparative human development at the University of Chicago, helped CNN conduct a re-creation of the Clark doll test. They found "white bias" remains strong among both white and black children. “Children’s play is serious business,” Spencer told The New York Times. “They are getting ideas about who they are from these objects. There are messages about one’s confidence, one’s sense of self in terms of what I look like and being powerful.” If black children have a difficult time finding toys that reflect their own appearance, it's even harder for Asian, Latino, Native-American and other non-white children to find toys that look like them. And the lack of representation is even worse for children with disabilities.
But it's getting easier for parents to find Latino, Asian, and black dolls. Two women recently launched Hello Hijab, making traditional Muslin headscarves for dolls; 3B scientific makes dolls with Down's Syndrome; there are now dolls for boys; and Barbie and Lego offer characters in wheelchairs. American Girl has launched a major diversity campaign, offering dolls of multiple races and disabilities. The success of characters like Doc McStuffins, a black girl who acts as doctor to her toys, and Dora the Explorer, a proud Latina, show toy makers that there is money to be made in diversity.
While the toy industry's progress has been significant, most agree minorities remain underrepresented among dolls and action figures. Byrne is confident demand for diversity in toys will continue to grow, driving change in the companies. "As children are more exposed to diverse communities then the toy industry is going to start reflecting that," said Byrne. "The toy industry always reflects the culture at large. It doesn't really lead it."

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Federal Judge Sees New York State Conspiracy to Thwart Care for Mentally Ill - The judge who oversaw landmark case involving troubled homes for the mentally ill sends word to Gov. Andrew Cuomo and Attorney General Eric Schneiderman that state’s efforts to undermine care must end, by Joaquin Sapien, in ProPublica.
A federal judge in Brooklyn has accused state officials of secretly trying to subvert a landmark court order to improve care for thousands of mentally ill residents of New York City. Three years ago, U.S. District Judge Nicholas Garaufis ended a prolonged lawsuit against New York state by ordering the Department of Health to begin moving as many as 4,000 mentally ill residents housed in group homes to less restrictive environments where they could live more independently. As part of his order, the judge had laid out a timetable for the state to meet its obligations to men and women who had long lived in homes marked by neglect and abuse.
But at a hearing last month, Garaufis angrily charged that officials with the Department of Health appeared to have hatched a plan with the operators of the troubled group homes to get out from under his court order. “There’s some sort of a deal,” Garaufis said. “That’s how it appears. And we’re going to find out exactly what the deal is, because if there is a deal, I would consider it a fraud on the court.”
A spokesman for the Department of Health said there was no secret plan, and that the state remained committed to meeting its obligations under the court order. A spokesman for the attorney general’s office, which has represented the state in the litigation for more than a decade, denied its lawyers were complicit in any effort to subvert the court order. The attorney general’s office has in recent weeks sought to distance itself from the Department of Health.
Garaufis was alerted to the idea that the state was working to undercut his order in February as the Department of Health prepared to update the court on its progress in relocating residents. Garaufis said the scheme, as he saw it, involved efforts by the adult home industry to have critical regulations at the heart of the 2014 settlement effectively voided. The regulations limited the ability of home operators to accept new mentally ill residents.
In laying out the alleged secret deal, Garaufis said lawyers for the adult home operators had met with officials from the Department of Health, and that they basically worked together to have a state judge issue a temporary restraining order governing the regulations. The action by the state judge, Kimberly A. O’Connor, triggered a provision in Garaufis’ order. Under the terms of the federal order, any dispute over the regulations that cannot be resolved in 120 days would mean the entire consent decree governing the residents of the homes would be voided.
Why the fate of the settlement was being litigated in state court without his knowledge, Garaufis said, was incomprehensible. Furious, Garaufis held a hearing on March 22, one he required be attended by the state commissioner of health, the commissioner of mental health and the counsel to Gov. Andrew M. Cuomo. He excoriated the group and said he was enraged that the residents of the homes were caught up in politics.
At the hearing in March, Garaufis authorized lawyers representing the mentally ill residents to depose an array of state officials and said if a new trial was required, he would conduct it in July, and he would require the state commissioners to attend it. He also said he was intent on exploring possible sanctions against the state. Lawyers with one of the city’s most prestigious law firms, Paul, Weiss, Rivkind, Wharton and Garrison, have worked on behalf of the mentally ill residents for more than a decade. At the hearing in March, Garaufis allowed a lawyer from the firm to respond to the state’s conduct.
“I don’t even know how to catalogue my outrage,” the lawyer, Andrew Gordon, said. “I mean, whether it’s the court’s efforts, Paul, Weiss’s efforts over the last 10 years, whether it is the fact that it appears that a federal order of this court has been ignored, whether it is the fact that the Department of Health and Office of Mental Health — who are charged with protecting one of the most vulnerable populations — appears to be in cahoots with the adult home industry. I don’t even know where to start.”

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Firearms technology and the original meaning of the Second Amendment, by David Kopel, Esq., in The Volokh Conspiracy.

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William T. Coleman Jr., Who Broke Racial Barriers in Court and Cabinet, Dies at 96, by Dennis Hevesi, in The New York Times.
Mr. Coleman attended a segregated elementary school and was one of just seven black students at Germantown High School, one of Philadelphia’s best. In a memoir, “Counsel for the Situation: Shaping the Law to Realize America’s Promise” (2010), Mr. Coleman recalled giving a well-received oral presentation in an English class as a 10th-grade honors student. After Mr. Coleman concluded the presentation, his teacher, who was white, said, “Someday, William, you will make a wonderful chauffeur.”
The teacher, Mr. Coleman wrote, “had intended to compliment the poised oral presentation” he had made. “Yet somehow I didn’t take it that way,” he added. He cursed the teacher and was suspended.
Mr. Coleman went on to the University of Pennsylvania (with a strong recommendation from the swim team coach, he said), and graduated summa cum laude with a double major, political science and economics, in 1941. He was accepted into the Harvard School of Law but left in 1943 to enlist in the Army Air Corps. Mr. Coleman returned to the law school after military service ended in 1945, was accepted by The Harvard Law Review — he was its first black staff member — and graduated first in his class in 1947.
After law school, Mr. Coleman was law secretary to a federal appeals court judge in Philadelphia. He then broke new ground. As The New York Times reported in April 1948, “For the first time in the Supreme Court’s 158-year history, one of its justices will have a Negro law clerk.” The justice was Felix Frankfurter; the clerk was Mr. Coleman. (He quickly learned how difficult it was to find a restaurant in the capital that would allow him and his fellow clerks, all white — including Elliot Richardson, a future United States attorney general — to have lunch together.) After the clerkship, Mr. Coleman, seeking to go into private practice, was repeatedly rejected by white-shoe firms in Philadelphia before he was finally accepted by one in New York — Paul, Weiss, Rifkind, Wharton & Garrison.
In 1951, Thurgood Marshall, who was then chief counsel for the National Association for the Advancement of Colored People (he would become the first black justice on the Supreme Court in 1967), asked Mr. Coleman to join the legal team preparing the briefs in Brown v. Board of Education. Those arguments contributed to the court’s unanimous declaration that state laws that established separate schools for black and white students were unconstitutional. Mr. Coleman was named president of the NAACP Legal Defense and Educational Fund in 1971 and was its chairman from 1977 to 1997. He argued 19 cases before the Supreme Court altogether.
Mr. Coleman was co-counsel in McLaughlin v. Florida, in which the Supreme Court overturned a Florida law that prohibited an interracial couple from living together under the state’s anti-miscegenation statutes. The couple had been convicted after choosing to live together despite the law. In a unanimous decision on Dec. 7, 1964, Justice Potter Stewart wrote, “It is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor.” Three years later, in Loving v. Virginia, the court unanimously declared all race-based legal restrictions on marriage unconstitutional.

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New Report Aims to Help Criminal Defense Attorneys Challenge Secretive Government Hacking, by lawyers at EFF, the ACLU, and the 'National Association of Criminal Defense Lawyers.'

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Libel takedown injunctions and fake notarizations, by Eugene Volokh, Esq., in The Volokh Conspiracy..
Chinnock v. Ivanski and Lynd v. Hood were filed by lawyers Daniel Warner and Aaron Kelly, of Kelly/Warner PLLC. (Both lawyers’ names appear on some court documents in each case; the court docket shows Warner as the lawyer of record on Chinnock, and Kelly as the lawyer of record on Lynd.) I reached out to the Kelly/Warner people about this, but they would not respond on the record. The private investigator who has been helping me (Giles Miller of Lynx Insights & Investigations) couldn’t find the ostensible Lynd v. Hood defendants, Connie Hood and Jesse Wood, at the addresses given for them; nor could he find any evidence of the existence of Krista Ivanski, of Chinnock v. Ivanski; nor could he find Jake Kirschner, the ostensible defendant in Ruddie v. Kirschner, the case aimed at deindexing a RipOffReport post about Daniel Warner; nor Howard Marks, the defendant in Gottuso v. Marks, another Kelly/Warner case (though one without a notarization).
I’ve blogged before about people getting injunctions against alleged libelers, aimed solely at getting Google to deindex the allegedly libelous page. The injunctions aren’t gotten with any expectation of the alleged libeler voluntarily complying, or of the alleged libeler being forced by the court to comply. Rather, Google has a policy that it will often remove pages from its indexes once it sees an injunction finding the pages to be libelous; and that’s what the plaintiff wants.
It’s understandable that many plaintiffs would legitimately seek such a remedy, and that Google would offer it. Traditional libel damages awards are useless when defendants lack money, and court enforcement of injunctions is useless when the defendants are effectively anonymous, or overseas, or are unable to remove the libelous material (for instance, from sites such as RipOffReport, which doesn’t allow people to remove their own posts).
But one danger with this practice, as we’ve seen, is that it leads to an incentive for unscrupulous people — whether plaintiffs, their lawyers or reputation-management companies hired by the plaintiffs (and potentially working out the details without the plaintiffs or the lawyers’ knowledge) — to file lawsuits against fake defendants. The fake defendant supposedly submits a document agreeing to the injunction. (In reality, the document is provided by the same reputation-management company that is acting on behalf of the plaintiff.) The court believes that both sides agree to the order, so it issues the order. And then Google sees the order, and often acts on it.
One possible means of preventing the fake-defendant lawsuits, of course, is to try to make sure that the defendant is real; and one obvious solution to the problem is to have the signature verified by being notarized. But who will verify the existence of the verifiers? Consider Chinnock v. Ivanski, a case in which the complaint identified the defendant as “an individual who resides in Turkey.” But on the Amended Order for Permanent Injunction, the defendant’s signature was notarized by a Samantha Pierce of Colorado, and here is a copy of her notary stamp:
20121234567 appears suspicious, and in this instance appearances do not deceive: There is no Samantha Pierce listed on the Colorado notary site, with that notary ID or any other. (I posted this order Tuesday, as a little puzzle for our readers; this post is the promised explanation.) The notary ID 20121234567 and the expiration date Aug. 8, 2016, are the placeholders shown by the Colorado secretary of state in explaining to notaries what format they should use for their seals.
And that’s not all; on the earlier, pre-amended Stipulated Order for Permanent Injunction in the same case, the notary for Ivanski’s signature is Amanda Sparks of Fulton County, Ga. Again, there is no Amanda Sparks of Fulton County on the Georgia notary website; there is an Amanda Sparks in a different county, but with a different expiration date.
Similarly, in Lynd v. Hood, the notary listed for the defendant’s signature is Jose Garcia from Harris County, Tex., and his license is said to expire on March 2, 2016. However, there is no Jose Garcia listed on the Texas notary website with the same license expiration date. Chinnock v. Ivanski and Lynd v. Hood were filed by lawyers Daniel Warner and Aaron Kelly, of Kelly/Warner PLLC. (Both lawyers’ names appear on some court documents in each case; the court docket shows Warner as the lawyer of record on Chinnock, and Kelly as the lawyer of record on Lynd.) Warner was also the beneficiary of one of the Richart Ruddie-linked orders that fit the pattern discussed in this post — that’s what led me to look closely at the Chinnock order — though the exact connection between Warner and Ruddie is unclear.
It is also unclear who was responsible for the apparently inauthentic notarizations, and who knew about them. It is possible, for instance, that they were the work of some reputation-management company that connected the plaintiffs and Kelly/Warner, and that the company claimed that it had gotten the documents authentically signed and notarized. I reached out to the Kelly/Warner people about this, but they would not respond on the record.
The private investigator who has been helping me (Giles Miller of Lynx Insights & Investigations) couldn’t find the ostensible Lynd v. Hood defendants, Connie Hood and Jesse Wood, at the addresses given for them; nor could he find any evidence of the existence of Krista Ivanski, of Chinnock v. Ivanski; nor could he find Jake Kirschner, the ostensible defendant in Ruddie v. Kirschner, the case aimed at deindexing a RipOffReport post about Daniel Warner; nor Howard Marks, the defendant in Gottuso v. Marks, another Kelly/Warner case (though one without a notarization). It’s possible, of course, that the relevant public records are incomplete, and that each of these people was associated with the address for too short a time to make it into such records. Still, the overall pattern, coupled with the suspicious notarizations, suggests that at least some of these orders are untrustworthy.

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The Second Amendment as an individual right - For the grammarian and the historian, the meaning is crystal-clear, by William Layer, in The Washington Times.
Since San Bernardino, Sandy Hook, Columbine et al., the “progressives,” the media and their acolytes have beaten their chests calling for even stricter gun restrictions, although the most restrictive states and cities that have the highest crime. They insist that the Second Amendment does not apply to individuals, but only to the National Guard, even though the modern Guard did not come into existence until the Dick Act of 1903. To them, the Supreme Court decisions in Heller v. District of Columbia and McDonald v. Chicago affirming an individual right are mistaken, a conclusion reachable only by abjuring grammar and history.
To anyone who can diagram a sentence the Second Amendment is crystal-clear, not a Delphic pronouncement. The Founding Fathers, well versed in Latin grammar, knew exactly what they meant when they passed the Second Amendment. The meaning is in the main clause — “the right of the people to keep and bear arms shall not be infringed” — a complete sentence. “A well-regulated militia” is, in Latin, an ablative absolute, it introduces the main idea. Would Second Amendment opponents be happier if it read, “The right of the people to keep and bear arms shall not be infringed, a well-regulated militia, being necessary to the security of a free state”? The idea remains the same, but given the progressivist idea of a “living Constitution,” they would nullify the Second Amendment by asserting knowledge of the Bill of Rights superior to that of its author, James Madison.
Historian Leonard Levy’s “Origins of the Bill of Rights” reaffirmed an individual right. Wrote Levy: “The right to bear arms is an individual right. … if all it meant was the right to … serve in the military … [it] would never have reached constitutional status in the Bill of Rights. The very language of the amendment is evidence that the right is a personal one, for it is not subordinated to the militia clause.” The state constitutions of the revolution and early national period also acknowledged an individual right.
The Founders’ classical education made them realistically fearful of government power. They knew well what had befallen the Roman Republic and that tyrannies were only possible when the people lacked the means to resist. The chaos and oppression of the English Civil War and the Glorious Revolution’s short-circuiting of the Stuart’s divine right ambitions were fixed in their minds as was the English Bill of Rights (1689) which, although limited to Protestants, secured an Englishman’s right to arms. However, the roots go even further back, to the “Trained Bandes,” locals called up to defend the realm as Elizabeth I did when the Armada threatened England. Englishmen provided their own accouterments according to their station. Likewise, the chronic war with France in which for over a century frontier settlements were attacked, settlers massacred or carried off into Indian slavery meant colonists had to protect themselves.
New England towns either supplied weapons or, as had Plymouth in 1632, ordered freemen to arm themselves for defense against ever-present Indian dangers. When Queen Anne’s War (War of the Spanish Succession) broke out in 1702, New England militias were called to support the British assault on French Canada. Militiamen brought their own weapons; those who did not own a musket were issued one that they could keep when mustered out. The battles of Lexington and Concord at the start of the American Revolution could not have taken place without an armed citizenry. Who, then, was the militia? To George Mason, it consisted of “the whole people.” Under the Militia Act of 1792, every man between 18 and 54 “who when “so enrolled and notified … shall within six months thereafter, provide himself … with a musket, bayonet and belt, two spare flints, a cartridge box with 24 bullets, and a knapsack.”
The left’s assertion that America’s creators couldn’t foresee a firearm beyond a flintlock is the logical fallacy of presentism — we know better today. Were the Dark Ages better than the Pax Romana because 900 A.D. came later than 300 A.D? Contrary to modernist fallacies, innovation, not stasis, was the characteristic of 18th century society. They might not have foreseen the M-16 but they knew the devastation of the massed firepower of .69 caliber Brown Bess and that weapons evolved. The matchlock was superseded by the wheelock, the wheelock by the flintlock, as the rifle was to supersede the musket. In 1770, British Army Major Patrick Ferguson had invented a breechloading flintlock rifle and effectively deployed his riflemen at Saratoga in 1777 (Ferguson’s rifle could have revolutionized warfare). By 1819, 19 years after the Constitution’s ratification, the U.S. Army adopted the Hall breechloader.
What of the Second Amendment, then? It is most certainly individual, but more importantly, it does not grant a right; it affirms an existing one as surely as natural law recognizes every man’s right to self-defense.
• William Layer is a historian who covered Air Force presidential operations during the early years of the Reagan administration.

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Richart Ruddie Settles anti-SLAPP Claims, Makes Restitution; but the Guilty Companies Remain Unpunished, by Paul Alan Levy, Esq., in the Consumer Law & Policy Blog.
Over the past few months, I have reported, to some extent jointly with Eugene Volokh, on a purportedly pro se lawsuit filed in the United States District Court for the District of Rhode Island. Brought against a fictional defendant and submitted with a forged proposed consent order, the proceeding resulted in the issuance of a consent order calling for web pages on the Get Out of Debt Guy web site to be removed from the search engine databases at Google and other search engines. The blogger victimized by this scam has now entered into a non-confidential settlement agreement with Richart Ruddie, the online operative who was most directly responsible for committing this fraud on the court. Ruddie agreed to pay $71,000 make the blogger whole for his losses as well as paying counsel fees for Public Citizen and the various local counsel the blogger had to employ; Ruddie has also agreed to take actions, at his own expense, to get several court orders that he obtained fraudulently on behalf of two debt relief company customers, Rescue One Financial LLC and Financial Rescue LLC, lifted. Ruddie and Myvesta Foundation, which hosts the blog, have agreed to a proposed order under which the federal court would retain jurisdiction if necessary to enforce the order. Ruddie is in the final stages of plea bargaining with the United States Attorney for the District of Rhode Island; we understand that his obligations will extend to getting phony consent orders lifted in two dozen other cases besides those involving Myvesta.
The one part of the fraud that remains unremedied is that the real culprits in this scheme – the debt relief companies as well as Bradley Smith, in whose name some of the fraudulent cases were filed - remain unpunished. My investigation of this scheme, which was reinforced by my ability to issue third-party subpoenas, persuaded me that the customers were equally guilty of the fraud. In the remainder of this blog post I explain how the settlement with Ruddie came to be concluded without the opportunity to force the companies as well as Smith himself to take public responsibility for the frauds that they hired Ruddie to commit. I will also suggest some ways in which this gap might be filled.
How the Culprits in the Fraud Were Identified: I initially assumed (and I told Chief Judge Smith at the hearing on our motion for leave to intervene that I would need a fair amount of time for discovery to track down those responsible for the filing of the phony pro se lawsuit and consent order (which I correctly assumed would be Richart Ruddie given his contract with Rescue One Financial). I assumed that he would be a slippery character, skilled at concealing his tracks. But as I reported last fall, pinning the immediate responsibility on Ruddie turned out to be ridiculously easy — the filing fee was paid by a check from a California-based process service company, and that company readily provided both check with which it had been compensated – written on the bank account identified in the contract with Rescue One Financial – and the individual who communicated with the process server about getting the papers filed was an official of yet another Ruddie company.
Shortly after I posted about having identified Ruddie as having been directly responsible for the submission of the fraudulent papers to the Rhode Island court, I heard from Joel Hirschhorn, who was representing Ruddie in connection with the criminal investigation being conducted by the United States Attorney’s Office in Rhode Island (pursuant to Chief Judge Smith’s request). He outlined a very attractive possible resolution to Myvesta’s claims against Ruddie, under which Ruddie would take full responsibility from the fake lawsuits he had filed to suppress public access to Myvesta’s criticisms, make full disclosure of his misconduct, make Myvesta whole for the damage caused by his actions, and undertake, at his own expense, to get the wrongfully-obtained orders vacated. (The advantage from the perspective of Ruddie’s criminal exposure was that he could show that he had made restitution to the victims of his fraud). This seemed to me to be a sensible solution, but after the initial contact, I could not get Hirschhorn to respond to my inquiries.
At the same time, I had been in touch with another Florida lawyer, Robby Birnbaum, who had been representing Bradley Smith and Rescue One Financial. It was Birnbaum who had confirmed to me that Bradley Smith had not signed the “pro se” papers filed on his behalf in Rhode Island. Birnbaum highlighed the fact that it was a different Rescue One executive who had signed the black hat SEO contract with Ruddie, and he portrayed Smith as being out of the loop in the relations. One of the other fake cases that Ruddie had caused to be filed on behalf of Bradley Smith was in state court in Baltimore. In that case, Ruddie had hired a young Baltimore lawyer named Bennett Wills to file the lawsuit; Birnbaum kept me apprised of the efforts he was making to obtain the case file from Wills to determine whether Wills had communicated with Smith and obtained his approval to sue on his behalf. Wills (who had moved his practice to Nashville at this point) hired a lawyer to fend off Birnbaum’s inquiries. After getting the file, Birnbaum trumpeted to me the conclusion he drew from reviewing the file which, he said, confirmed what he had previously told me about Smith’s lack of involvement in the fraud. But despite his previous commitment to share the file with me to establish his client’s innocence, Birnbaum ignored my repeated inquiries about getting the file. I had taken Birnbaum at his word and assumed the worst about Wills; now I was beginning to question those assumptions.
That is where the matter stood on January 31 when Chief Judge Smith issued his order vacating the fraudulent consent order and dismissing the action on the most obvious ground – lack of diversity jurisdiction. the judge set a thirty-day deadline for the parties to brief the issue of awarding attorney fees under Rhode Island’s anti-SLAPP statute, and requested briefing on two other subjects: the identification of the parties responsible for making the fraudulent filing in his court, and his possible power to impose sanctions under the federal courts' inherent power. To address those issues, we issued subpoenas under Rule 45 of the Federal Rules of Civil Procedure compelling production of documents from Ruddie, from Rescue One Financial as well as from Financial Rescue LLC, and from the two young lawyers whom Ruddie had recruited to file fake lawsuits in state courts in Pinellas County Florida as well as Baltimore. I recruited several lawyers around the country at whose offices the production of documents was to be made, and who would be available as local counsel in the event the subpoena recipients filed motions to quash the subpoenas.
How Discovery – and the Customers’ Anxiousness to Avoid Discovery – Produced a Settlement: Service of the subpoenas brought the matter to a head. Hirschhorn reached out to me quickly to complete negotiation of the settlement framework he had proposed in the fall. Smith and Rescue One hired a new lawyer, Michael Mallow, to respond to the subpoenas. He assured me that his client stood ready to produce the documents responsive to the subpoena documents, which were on a thumb drive with fifty documents, which he had reviewed quickly; he said that I would get them done the following week, so could he please have a short extension of time so that he could finish having the documents reviewed to identify potentially privileged matter. But he also said that he had mind to turn everything over to me, including the privileged material, in support of his broader point: he argued that although his clients had retained Ruddie to file lawsuits on their behalf for the purpose of getting pages delisted from search engines, they had no idea that he was making up the names of alleged defendants and filing forged signatures in court. This, he argued, was a criminal act and interrupted the chain of proximate causation, so that Rescue One and Smith could not be held liable under the anti-SLAPP law for what Ruddie had done on their behalf in Rhode Island.
To show me an example of the sort of “legitimate” service that his clients had hired Ruddie to provide, Mallow pointed me to a state-court delisting lawsuit filed by lawyers for Smith and Rescue One in Broward County, Florida, with full support from the company and Smith. But looking at that lawsuit, I was not at all persuaded that his clients were as innocent of fraudulent intent as they claimed. This opinion was confirmed by the disclosures I was getting from Joel Hirschhorn, who responded to the subpoenas by reaching out to discuss finalization of the restitutionary settlement framework he had proposed the previous fall. Ruddie’s information made clear that Bradley Smith was far more closely involved in Ruddie’s contacts with Rescue One than I had previously been led to believe. I was thoroughly persuaded, at this point, that we had solid claims that the customers could be held legally responsible for the frauds that they had hired Ruddie to commit.
Meanwhile Hirschhorn and I discussed the sums that would have to be paid to make Myvesta whole— not just covering its attorney fees but also the lost advertising revenues. We negotiated a partial payment of the attorney fees accrued to date, leaving it open to Myvesta to seek the remainder of the fee award against the guilty customers. We agreed that Myvesta would need to develop an analysis of the lost advertising revenues so that we could discuss the appropriate restitution to be paid in that regard. But I stressed to Hirschhorn that Myvesta’s agreement to this possible settlement was conditioned both on the lifting of the fraudulently obtained consent orders, and on Ruddie’s continued disclosures of the details about his relationships with his customers so that we could pursue the issue of their liability under the Rhode Island anti-SLAPP statute.
Apparently, Hirschhorn was sharing some of the details of our negotiations, because when Rescue One lawyer Michael Mallow learned that I was still pursuing his client’s liability for an anti-SLAPP violation, he hit the roof. He demanded that I call him and, when I did, he began yelling into the telephone that it was my ethical responsibility to reach a complete settlement with Ruddie so that his client would not have to produce any documents. He brought Hirschhorn into the call and demanded that I give Hirschhorn a settlement number that included claims against his clients as well as Ruddie. When I explained that I did not have any basis to set a proposed compensatory damages figure because I had not completed a sufficient analysis to specify a number that I felt I could defend in litigation, Mallow said that this didn’t matter and that I should just make up a number so that there could be a settlement. Hirschhorn indicated that he would take a specific number with that disclaimer; when I articulated a number that was considerably higher than what Hirschhorn said he could get from his client, Mallow told me that it was possible that his own client might contribute to the settlement, but “if that happens you will never know.” That is, the deal would be structured to give his client deniability of any responsibility for the fraud.
In the end, we made the deal with Ruddie, even though it meant giving up civil claims against the guilty companies and giving up the right to make them produce documents – to the very end, Ruddie insisted in these conditions to protect his customers, for reasons that have never been explained. Mallow’s boorishness made it very tempting to refuse to release his client from, for example, a claim for punitive damages under the anti-SLAPP statute, but I concluded that the settlement for compensatory damages only was in Myvesta’s best interests. A major consideration was the difficulty of linking a particular amount of lost advertising to the removal of four articles on the Myvesta web site, and the cost of hiring an expert witness to establish the causal link between losses of advertising and the search engine removals, made it sensible to agree to have Ruddie agree to a specific sum that included compensatory damages for Myvesta. An additional consideration militated in favor of settlement: one of the oddities of the case, which Steve Rhode had publicly acknowledged at the outset, was that although the case was filed in the name of Bradley Smith, whose company was admittedly a Ruddie customer, the specific web pages identified for search engine delisting in the phony consent order were about Financial Rescue, also a Ruddie customer. Which one should be held civilly liable to Myvesta? Or would the liability be joint and several with Ruddie? Should the customers be left to point their fingers at each other?
The Final Settlement: The deal has now been signed, the $71,000 settlement sum has been paid in full, and the settlement agreement filed with the court along with a proposed order under which the Judge Smith would retain jurisdiction to enforce Ruddie’s obligation to move to get the fraudulent state court orders lifted, as well as to ensure that the former customers (that is to say, Smith, Rescue One Financial, and Financial Rescue) cooperate in Ruddie’s efforts in that regard. Their cooperation will likely be needed because they, not Ruddie, were the plaintiffs in the state-court litigation and hence the motions to lift the orders will have to be made in the names of those parties companies. It appears at the moment that the threat of being dragged back into the Rhode Island anti-SLAPP litigation has been sufficient to induce the companies and Smith to allow counsel retained Ruddie to proceed in their names to get the fraudulent order lifted.
What Remains to Be Done: The most frustrating part of the settlement is that the companies that hired Ruddie to defraud the courts have thus far escaped any publicly imposed remedy for their actions. They have not had to pay any of Ruddie’s restitution (Hirschhorn made a point of telling me that just before he transmitted the payment), and Myvesta’s acceptance of Ruddie’s terms for his settlement means that it cannot seek to have them held liable to it. And even if Ruddie is put out of business by the government’s prosecution, there are a number of other online operations that offer similar services. Until companies know that they risk being held liable, or held publicly responsible for hiring scammers like Ruddie to suppress online criticism, there will continue to be a market for such scams. Just as municipal authorities seeking to suppress prostitution will sometimes make an effort to hold the johns responsible, so would pursuit of the customers in this case help suppress the court-scamming business.
We have urged the United States Attorney’s office to consider whether to prosecute the companies as well as Ruddie. Lest this article unnecessarily impede such a prosecution, I have withheld a number of the factual details that support my conclusions that Bradley Smith likely knew full well what was being done in his name, and that Rescue One, at least, could be held legally liable for the frauds perpetrated in its name. In the event that the government chooses not to prosecute, it also remains open to Chief Judge Smith to initiate proceedings to impose sanctions under the court’s inherent power: the standard for civil liability is considerably lower than for criminal guilt. Whether it is possible to hold the customers publicly responsible for the frauds remains to be seen.
Acknowledgments: It would not have been possible to bring this matter to a successful conclusion without the pro bono assistance of lawyers around the country who agreed to be our local counsel, Most notably, this includes Jeff Levy of Levy and Blackman, who served as our local counsel in Rhode Island. But several lawyers agreed to be our local counsel in the event there was motion practice in connection with our Rule 45 subpoenas: Mark Goldowitz in the Bay Area, Thor Urness in Nashville, Marc Randazza who still maintains his old Miami office, and Tracy Pratt in Pinellas County. I am lucky to be part of national network of lawyers who stand up for First Amendment rights. Of these, only Thor Urness needed to help us file something – lawyer Bennett Wills came out swinging, claiming that I had served subpoenas on him without good reason and threatening, in the course of Rule 45 objections, to sue for abuse of process; but when I pointed out that a responsive filing would require us to provide a detailed explanation to the judges before whom he practices about the fraudulent litigation that he had been recruited to file as part of a criminal scheme, he dropped his motion.
My final acknowledgment is to my friend and colleague Eugene Volokh at UCLA law school, without whose painstaking research about fake litigation around the country much of this litigation would not have been possible. 
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