We posted the story a few weeks ago of the Constitutional Sheriff standing for the Fifth Amendment Rights of a citizen in his county (you can view that HERE).  Some new developments have taken place with that story.  From the Eddy County Sheriff’s Office Facebook page:

 

A message from the Sheriff 

For Immediate Release
February 19, 2015

(Carlsbad, NM) I’m Scott London, Sheriff of Eddy County New Mexico. In light of all that has transpired recently here in Eddy County surrounding my opposition to the IRS seizure and sale of Mr. Kent Carter’s properties here in Carlsbad, I felt obligated to disclose what happened, what I learned and what ultimately lead to my decision to stand down and allow the sale to occur.

First, let me be clear of my intentions and my stance. I was never taking a stand against the original order, nor am I even opposing the legitimacy of the IRS. The US Marshals are not my enemy. I believe, at least in part, the calm demeanor of our interactions are the results of the positive working relationship the Sheriff’s Office and the Marshals have had in the past.

I never intended to say whether or not Mr. Carter was right or wrong in this case. I have intentionally tried to stay ignorant of the facts of the case. It’s not my place to judge the facts of the case. I am not the trier of fact. I was simply trying to protect the process. I wanted to see that Mr. Carter received his inalienable right of due process as articulated in both the constitutions of the United States and the State of New Mexico. That was my purpose… defend the Constitution.

Let me briefly explain the series of events that has brought us to this month. Last fall, Mr. Carter approached me and asked if I would protect his right of due process. He was engaged in a dispute with the IRS. The IRS had won a case in the US District Court in Las Cruses. The judge had issued an order to seize and sell three of his personal properties located here in Carlsbad. Mr. Carter had filed an appeal with the Tenth Circuit Court of Appeals in Denver. However, he feared the IRS may try to seize and sell his property before exhausting his due process. I confirmed the appeal was filed and pending and agreed to protect his rights.

In December, the US Marshals came to Eddy County with the court order to seize and secure Mr. Carter’s properties. I was called to intervene in that situation. After going out and talking with all parties, Mr. Carter and his tenants on their own chose to voluntarily move out.

During that encounter it was learned that Mr. Carter had failed to file a motion for a stay. A motion for a stay is a procedural process to pause the process. This was a procedural oversight by Mr. Carter who was handling the case pro se, which means he was representing himself. He therefore filed a motion for a stay that week. That motion was denied. I’ll talk more about that denial in just a moment.

Fast forward to February. After learning that the IRS intended to proceed with the sale of Mr. Carter’s properties on February 19th, I confirmed that Mr. Carter’s appeal was still pending. Therefore, I issued the letter to the IRS informing them that Mr. Carter’s due process had been neither exhausted nor waived.

Acting Chief Grover Hartt III with the US Department of Justice Tax Division responded to my letter with a letter. In his letter, he noted the original judgment and the order to seize and sell the properties. I am not disputing those. He also mentioned Mr. Carter’s appeal, noting that he also filed for a motion to stay which was denied. He then goes on to cite various “case law”.

Before I continue, let me clarify something. Case law is not actually legislated law. It’s case precedent. Precedent is used to clarify laws and establish procedure. It can also be used to overturn previously established case precedent or legislated law if that precedent or law is unconstitutional (basically an illegal law or precedent). My point being, precedent is not law, it’s… precedent.

Back to the topic at hand. Mr. Hartt cites four different cases: US v. Rodgers (1983) which deals with innocent third parties to a suit; US v. Poteet (2011) a similar tax case which dealt with jurisdiction; Christopher LaSalle & Co. v. Heller Financial (1990) which addresses a party’s right to request a stay and an appellate review in a civil suit not involving the government; and Miami Intern Realty Co. v. Paynter (1986) which deals with right to ask the courts to reduce a defendant’s appeal bond in a civil suit not including the government.

I was unable to find the relevance of US v. Rodgers to this case. US v. Poteet did seem relevant to Mr. Carter’s case, but was completely irrelevant to my stance of due process. Finally, let me dismiss the last two as irrelevant. We are not dealing with two non-governmental parties disputing who owes or who owns. The Fifth Amendment is there to protect the citizens from governmental overreach. I have recently paraphrased an excerpt of the Fifth many times, “Life, Liberty or Property cannot be taken without due process of law”. Let me take a moment and read the entire Fifth Amendment.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger;

Right to a grand jury except for military during war time.

nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb;

Double jeopardy.

nor shall be compelled in any criminal case to be a witness against himself,

Self incrimination… Miranda rights.

nor be deprived of life, liberty, or property, without due process of law;

That’s what we’re talking about today.

nor shall private property be taken for public use, without just compensation.

Obviously not what we’re talking about today.

What we’re talking about today was that second to the last phrase, “nor be deprived of life, liberty, or property, without due process of law”. That’s pretty clear. The government cannot take for itself your personal property without due process of law. The law allows for Mr. Carter to appeal the judgment and order. Therefore, they cannot sell his property until he exhausts his due process. Not to mention, if he wins his appeal and the government has sold his property, he has no recourse to regain that property, because the government has now sold it to someone else. And we’re not talking about money that can be put into a banking account and they can just right him a check later if they lose. We’re talking about the land that he lived on, real property.

The only thing I was trying to get the IRS to do is set aside the sale until the appeal was exhausted. Once exhausted, if they won, proceed with the sale. But if they lost, Mr. Carter would still have his property.

Now, is it possible for an individual to drag out a case for years, delaying the inevitable; tying up the courts; costing taxpayers’ money; just to lose? Yes. As a government employee, and even a taxpayer, can that be frustrating? Yes. Does it seem like the deck is stacked against the government? Yes. That’s because it is. The Constitution and the Bill of Rights were designed to stack the deck in the favor of We The People, not We The Government. We all know the government will work to make their jobs easier, faster, and try to stack the deck so that they can get the justice they think they should. But that’s not the way it’s set up. The Constitution and Bill of Rights were designed to protect We The People.

So now, let’s look at the order denying the motion to stay. This is, after all, the linchpin to their whole argument that due process was afforded.

The motion for a stay was filed in the Tenth Circuit Court of Appeals and was presented before Justices Holmes and Matheson. In their order, they cited four criteria they considered before deciding on this motion: 1. likelihood of a successful appeal; 2. threat of irreparable harm if the stay is not granted; 3. absence of harm to the opposing party if the stay is granted; and 4. any risk to public interest. And of course, they referenced this criteria from court precedent established in a case titled Homans v. City of Albuquerque (2001). Based on this criteria, they denied the motion. One could certainly argue at this point, the writing is on the wall. They’re saying right there in their order that he’s going to lose the appeal. The problem is, he hasn’t lost his appeal. It is still pending.

The Fifth Amendment doesn’t say you have a right to due process in only cases you’re likely to win. It doesn’t say you have a right to due process if it’s convenient. And it doesn’t say your right to due process can be waived if there is no argument for irreparable harm. It doesn’t even say you’re right to due process is waived if you miss a procedural step, or fail to post a bond securing your own personal property. It says, no person can be deprived of life, liberty, or property, without due process of law [period], no qualifiers or exceptions.

Therefore, it is obvious that the IRS, the US Department of Justice, and the Tenth Circuit Court of Appeals are violating Kent Carter’s Fifth Amendment rights.So, why have I backed down to allow the sale of the property. You have a right to know. I have been receiving many letters, phone calls and emails of support and encouragement. I have also been threatened with arrest, which I was prepared to peaceably surrender to. I received many offers to travel to New Mexico to stand against the Feds. Unfortunately, there were also offers prepared to do violence against the government. I recognize that most changes in government come at the hand of violence. I, however, was not prepared to lead explicitly or implicitly in a violent revolution. Mr. Carter, a God-fearing man, also did not want blood on his hands. He said, “We decided to do what’s best for safety of the crowd and all involved, because we don’t want any death on our hands. We chose God’s peaceful way.” Therefore, we agreed to allow the oppression of his inherent right to due process for the sake of public safety. This was not an easy decision, and resulted in a very sad day.

I do not want this evil to prevail. I am seeking congressional review of the DOJ, the IRS, and the Justices that were involved in the violation of Mr. Carter’s rights. “Is it a futile effort?” you may ask. If we were to rely on odds of success in all our decisions, we would not be walking on two feet today.

Article III, Section 1 of the US Constitution says, “The judges, both of the supreme and inferior courts, shall hold their offices during good behavior”. It’s safe to say, violating someone’s inalienable rights is not good behavior. The judges need to be held accountable for their decisions. Hiding behind unconstitutional precedents is no excuse.

So, what can you do? Don’t be afraid to get involved. Contact your legislators in DC. Let them know where you stand. Call them. Email them. Send them a letter. Go see them if you can. It’s easy to lose one voice in the crowd. But when the crowd speaks in one voice, it cannot be ignored.

Would you like to see a plan for a true, non-violent revolution to change our government? Here’s one I recently heard. Don’t ignore who you send to DC, but focus most of your efforts into your local elections first. Get involved locally. Truth be told, this is where you have the most influence. Know your mayor. Know your city council. Know your sheriff. Know your county commission. And get involved in those elections. Then get involved with your state representatives. When you can get your local elected officials and your state elected officials to collaborate and work for you, you are then, with the help of your local and state officials, ready to take on DC.

I plead with you, get involved. Get to know this republic that is supposed to represent you. Care more about your liberties than your benefits.

From Eddy County New Mexico, I’m Sheriff Scott London.

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