Monday, February 9, 2009


(Second post today, based on a readers question)

To cut to the chase illegal aliens have the right to file suit in US courts. Think of it this way - should just because someone is here illegally mean you can go out and destroy their life with impunity? Illegals file lawsuits all of the time. I remember several years ago when the Republican judges in Dallas saw the writing on the wall about changing demographics they all publicly announced that they would not allow a person's legal status to be an issue in the case. The reality is, it should not be unless it is germane to the issue.

On deportation the courts have taken the position that society's interest would not be served if an entire class of people (albeit here illegally) could not access our courts for civil remedies. Believe it or not undocumented men are paying child support. Do you really want to deport him and then put his children on welfare and Medicaid? If the courts start to report undocument fathers who are paying child support the fathers will simply never appear in court, and the state will get caught with the bill. Nothing is ever black and white.

To see the reader's question go to comments in previous post. To try and better understand this story I tried to research the case. There are a lot of bad articles out there written by people who have zero knowledge of the law and the meaning of court rulings. Here is a quote which I believe summarizes why the judge allowed the case to move forward. Between the above Fox article and this one I think you can get a good sense of what this case is about.

"The federal lawsuit charges Barnett, his wife, Barbara Barnett, and his brother, Donald Barnett, with conspiring to violate the plaintiffs' civil rights, according to the release.

U.S. District Court Judge John Roll in March rejected Barnett's efforts to have the charges thrown out, ruling that sufficient evidence of a conspiracy existed, that the Barnetts denied the immigrants' right to interstate travel and that the actions of the three were motivated by race.

Barnett's attorney, David Hardy, had argued that illegal immigrants didn't have the same rights of interstate travel as U.S. citizens do.

Roll's ruling came on the heels of another judgment against Barnett in February 2008.
At that time, the Arizona Court of Appeals refused to throw out a jury verdict from November 2006 - and a nearly $100,000 monetary award - against Barnett in another civil case where a jury concluded he falsely imprisoned members of a Douglas family."

The current trial is scheduled to go through Feb. 13."

I have not seen the admissible evidence to know one way or the other whether there was sufficient evidence to raise a fact question for a jury. There is an interesting question - do illegals have the right on interstate travel if they have no right to travel in the US in the first instance? This may shock my readers, but I would say no.

Years ago I worked on a wrongful death case wherein myself and another attorney were representing the construction company. In the first instance there was no liability as a matter of law. What got them to drop our client from the lawsuit was my draft brief that even if our client were liable for the plaintiff's death, his family was not entitled to lost wages based on a US wage earner because he had no right to wages in the US. The plaintiff's lawyers feared the argument and dropped our client from the lawsuit.

Generally, especially in Texas, you have a right to defend your land. You have the right to use reasonable means to detain someone on your property until law enforcement arrives. This can get sticky. The problem is you will rarely be able to defend your actions if they cross the line under the facts. This becomes very fact specific, which means the case goes to a jury.

The jury will decide whether he acted reasonably under the facts. He has a problem. Because he already has a judgement against him for similar conduct, this will come out when he is being cross examined. It will be almost impossible to avoid opening that door.

The final result is any one's guess.

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