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Section 1983 Civil Rights Complaint for Impounding my Car
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Douglas Palaschak
Box 6280, Beverly Hills CA 90212-1280 Filed 6 May 96
Message Phone: 805-658-6552 First Amended filed 22 May 96 by mail.
Pro Se All Defendants have been served with summons and complaint.
U.S. District Court for Central District of California
Douglas Palaschak, on behalf of himself and all others similarly situated,
Plaintiff,
versus
Airport Chevron;
City of Port Hueneme;
Port Hueneme Police Officer Miller (Badge 13);
Municipal Court of Los Angeles County;
County of Los Angeles;
Department of Motor Vehicles;
Sally Reed;
Chief Administrative Officer of County of Los Angeles; and
Director of DMV, officially and personally; Defendants
Case Number 96-3222 TJH (vap)
1st Amended Complaint #2557 Version 2.6(added tables of authorities) for Money Damages, Injunctive, and Declaratory Relief pursuant to 42 USC 1983.
Class Action. Jury demanded.
Table of Contents:
Tables of Legal Authorities Cited Herein: iii
Jurisdiction 1
Parties 1
Facts pertaining to all causes of action 1
1st cause of action: Unconstitutional Forfeiture without 5th amendment Due Process 5
2nd cause of action: 8th amendment violation - Punishment despite dismissal 5
3rd cause of action: §1985(3)(c ) Conspiracy to deprive citizen of constitutional rights. 6
4th cause of action: Unconstitutional violation of double jeopardy immunity 7
5th cause of action: Unconstitutional La Fleur irrebuttable presumption 7
6th cause of action: Defamation or false light in the public eye or §1983 9
7th cause of action: False arrest 10
8th cause of action: Unconstitutional Indigence filter - Edwards v California(1941) 10
9th cause of action: Taking driver license w/o 5th amendment due process. Bell v Burson 10
10th cause of action: Punishment before trial in violation of 6th amendment 11
11th cause of action: Unconstitutional failure to prove elements of crime in criminal case 11
12th cause of action: Seizure of car that is exempt from levy 12
13th cause of action: Conversion after 30 day impound of auto and property inside it 12
14th c/a - De facto Discrimination against Californian 12
15th c/a: Systematic Denial of constitutional rights by traffic court and DMV 13
16th cause of action: Impairment of constitutional right to access to traffic court 15
17th cause of action: Impairment of the mobility necessary to gather food and survive 16
18th cause of action - Impairment of constitutional right to earn a livelihood 16
19th cause of Action: Impairment of right to travel in Interstate Commerce 17
Class allegations 17
Class #1 definition. Victims of Unconstitutional seizure 17
Class #2 definition - Victims of 8th amendment violation despite 14601 acquittal 17
Class #3 definition - Victims of conspiracy 18
Class #4 definition - Victims of double jeopardy 18
Class #5 definition - Victims of irrebuttable presumption 18
Class #6 definition - Victims of half truth in DMV report 18
Class #7 definition - Victims of false arrest 18
Class #8 definition - Victims who lose car for inability to paying towing charge 18
Class #9 definition - Victims who suffered loss of driver license without due process 18
Class #10 definition - Victims of punishment before trial 18
Class #11 definition - Victims of forfeiture of exempt automobile 18
Class #12 definition - Victims of conversion of automobile or property therein 18
Class #13 definition - Victims of conversion after 30 day impound 19
Class #14 definition - none 19
Class #15 - Persons denied a prompt trial 19
Class #16 - Persons unable to go to court because of car seizure 19
Class #17 - Person who sleep in their car and could not do so after impound of car 19
Class #18 - Persons who lost a job, income, or employment 19
Class #19 - Persons who became transportationally challenged due to impound 19
Class Prayer 19
Palaschak's Alternative Prayer even if class action is denied 20
Appendix #1 - Text of California Vehicle code §22852 and Scofield annotation. 21
Tables of Legal Authorities Cited Herein:
Cases cited herein:
Bell v Burson (1971) http://www.circuitlawyer.8m.com/Burson.html 402 US 636, 29 L Ed 2d 90, 91 S Ct 1585. A driver license
may not be suspended without due process. High water mark for due process before the Supreme Court.
3, 4
Bivens v Six Unknown Agents of the FBI (1971) 403 US 388, 29 L Ed 2d 619, 91 S Ct 1999 1
Cleveland Board of Education v La Fleur (1974) 414 US 632, 39 L Ed 2d 52, 94 S Ct 791. Irrebuttable Presumption violates Due Process clause. Significance. Plaintiffs contend that enforcement of VC 14602.6 by defendants utilizes the Irrebuttable presumption of valid constitutional license suspension without regard to constitutional invalidity al la Bell v Burson (discussed herein) upon receipt by police radio of information from DMV or other agency alleging a suspension of driver license. Driver has no opportunity to rebut prior to impoundment of his car and imposition of towing charges for which his car is held as security despite the car's exempt status pursuant to bankruptcy law or ccp 704.010 et seq in violation of the supremacy clause and, in the officer's case, in violation of the officer's oath to support the constitution which includes the supremacy clause and the due process clause. 7
Edwards v California (1941) 314 US 160, 86 LL Ed 119, 62 S Ct 164. Screening indigents out of interstate commerce is unconstitutional. 10
Erie v Tompkins (1938) 304 US 64, 82 L Ed 1188, 58 S Ct 817, 114 ALR 1487 17
Monell v New York (1978) 436 US 658, 56 L Ed 2d 611, 98 S Ct 2018. If a city has an official policy that causes a civil rights violation then the city can be liable under 1983 2
Passenger Cases (1849) 7 How 283, 12 L Ed 702. Cited in Bell v Burson. Invalidated state tax on aliens arriving from foreign ports. Now California has gone to the other extreme and discriminated against its own citizens employing the instruments of interstate commerce - namely highway 101. Only instate citizens can be forced to pay tickets on highway 101 by license suspension. 4
People v Palaschak (May 8, 1995) 9 C4th 1236, 40 Cal Rptr 2d 722, 893 P2d 717. Companion federal habeas corpus complaint CV-249-jgd (jr) 13
Pulliam v Allen (1984) 466 US 522, 80 L Ed 2d 565, 104 S Ct 1970 The U.S. Supreme court here forbade prohibitive bail in otherwise non-jailable offenses and permitted assessment of costs and attorney fees against the magistrate who imposed the bail. 2, 21
Scofield v. City of Hillsborough C.A.9 (Cal.)1988, 862 F.2d 759. Unregistered owners have right to contest seizure.
6, 8
U.S. v Good Real Property (Dec 1993) 114 S Ct 492. Due Process requires a hearing prior to seizure. 4
U.S. v Guest 383 US 745, 16 L Ed 2d 239. Cited in Bell v Burson. 4
Wall v King 206 F2d 878. Cited in Bell v Burson. 11
Wisconsin v Constantineau, 400 US 433, 27 L Ed 2d 515 (1971) - Due Process requires hearing before deprivation.
13
Statutes cited herein:
California code of civil procedure §473 permits relief from default 21
California code of civil procedure §703.140 exempts a car and other property from distribution in bankruptcy 21
California code of civil procedure §704.010 exempts a motor vehicle from levy 2, 5, 18
California vehicle code §14601.1 - driving while driver license is suspended for non- alcohol, non-drug reason - including failure to pay a ticket. 2-4, 8, 11, 17
California vehicle code §14602.6 New. Effective Jan 1, 1995. Unconstitutional. Portends to permit seizure of car prior to trial for allegation of driving on a suspended license. Used with unconstitutional license suspension as an unconstitutional debt collection tool - an instrument of oppression. 3, 21
California Vehicle code §22852. Storage and retrieval procedures. Requires a hearing within 24 hours and that the police pay for the storage if it is unjustified but does not provide for notification of a recent owner who is not the registered owner even if the police and agency are notified of the owners' address. This much, however, is common sense - and scornful abrogation of the duty to communicate with owner Palaschak is part of the case at hand. 7
United States code 18:241 - federal crime to conspire to deprive rights of citizens 7
United States code 18:242 - federal crime to deprive persons of rights under color of law. 7
United States code 42:1985(3) ( c) - depriving persons of rights or privileges 20
United States code 42:1988 Attorney fees paid for civil rights case 1
United States Code 28:1343(3) District court has jurisdiction for civil rights cases. 1, 5
United States Code 42:1983 Civil Rights Act 1, 6
Treatises cited herein:
Constitutions and other ancient authorities cited herein:
Magna Charta. Signed in 1215 at the point of a sword. Prohibits the taking of a persons livelihood. 1, 16
U.S. Constitution. Amendment 14. Basis for civil rights laws enforceable by citizens against the states to redress oppression under color of state law. 4
U.S. Constitution. Amendment 5 - double jeopardy clause 7
U.S. Constitution. Amendment 5. Due Process clause. 5
U.S. Constitution. Amendment 8. Prohibits excessive punishment. 16
U.S. Constitution, Article 6, clause 2 - Supremacy clause 7
Jurisdiction
1.This U.S. district court has jurisdiction in this case pursuant to 42 USC 1983(1), 28 USC 1343(3)(2) and directly from the constitution and Declaration of Independence - including the part about petitioning for redress of grievances. Authority: Bivens(3). Pendant jurisdiction is asserted for claims asserted herein under the California constitution and California statutes including California's Unruh civil rights act.
Parties
1.Defendant Sally Reed is the Chief Administrative Officer of Defendant County of Los Angeles.
2.Defendant Sally Reed has been hired by Defendant Department of Motor Vehicles to begin June 1, 1996.
3.Plaintiff Palaschak is a native of the U.S. and a citizen and resident of Ventura, County, California.
4.From 1968 to 1970 Palaschak labored during the summer to build, the interstate freeway system, an infrastructure of interstate commerce.
5.Palaschak used facilities of interstate commerce to migrate to California in 1979.
6.Palaschak is entitled to the privileges and immunities of U.S. citizenship, California citizenship and English common law which were won at the point of a sword in a field at Runnymede in 1215 and memorialized in the Magna Charta, Declaration of Independence, and California constitution. Members of the plaintiff class come from many counties, states, and countries to use the facilities of interstate commerce in the Central Federal Judicial District of California.
7.All defendants are residents of the judicial district of the U.S. District Court for the Central District of California.
8.Airport Chevron and Port Hueneme are in Ventura County, California.
9.All defendants are persons within the meaning of 42 USC 1983.
Facts pertaining to all causes of action.
10.To the extent permitted, plaintiff invokes the protection of the California constitution. The words "constitution" and "constitutional" are used herein to denote rights under the California constitution as well as the U.S. constitution. To that end pendant jurisdiction is herein asserted.
11.On Thursday 12 October 1995 Officer Miller, badge #13 of the Port Hueneme Police signaled plaintiff to stop for a traffic ticket. Plaintiff drove to the nearby parking lot of the Ralph's grocery store and stopped his car.
12.Palaschak immediately presented to Officer Miller a valid unexpired standard California new style photographic driver license(4) scheduled to expire in May 1996.
13.Officer Miller cited Palaschak for having expired tags. The tags had been expired since June 1995 - a duration of 3 or 4 months.
14.Palaschak explained to Miller that he was the owner of the car - and Miller so noted on the ticket.
15.Palaschak informed Miller that he had purchased the car the car in March 1995, 3 or 4 months prior to the expiration of the tags.
16.Palaschak explained that he had been unable to pay for approximately 3 parking tickets from 1993 that the DMV required before it would register Palaschak's car.
17.Upon indirect inquiry by Miller, and in an attempt to be cooperative and candid, Palaschak volunteered that he had 2 outstanding tickets from Malibu but that he had set a new court date for them.
18.Miller then called by radio to inquire regarding Palaschak's driver license.
19.Miller reported to Palaschak that Palaschak's license was reported suspended(5) due to 2 unpaid speeding tickets in Calabasas branch of Malibu division of defendant Municipal Court of Los Angeles County.
20.Miller then explained to Palaschak that Miller had no choice but to arrest Palaschak.
21.Miller then arrested plaintiff for violation of California vehicle code §14601.1 - driving while driver license is suspended for non- alcohol, non-drug reason - and driver knows(6) of suspension.
22.Official City Policy. Plaintiff Palaschak asked Officer Miller if Miller would entertain any arguments pertinent to Miller's discretion to tow the vehicle.
23.Miller told Palaschak that Miller has no discretion under these circumstances.
24.Port Hueneme has a strict non-discretion policy since January 1, 1995 (the effective date of 14602.6) to tow the vehicle.
25.Port Hueneme's official policy regarding towing (by virtue of its non-discretionary mandate to officers) is of such official nature as to trigger §1983 municipal liability(7).
26.Plaintiff Palaschak explained to Officer Miller that Palaschak feared losing his car and an important plastic crate of files in the car.
27.Palaschak had been transporting the files to his court-appointed Attorney, Attorney Joel Steinfeld of Ventura.
28.Palaschak, then handcuffed, asked Officer Miller to retrieve this case of files from Palaschak's car. Officer Miller retrieved the plastic crate from Palaschak's car and put it in Miller's police car.
29.Plaintiff, in handcuffs, observed a tow truck bearing the name "Airport Chevron" tow plaintiff's car away.
30.Palaschak then explained to Officer Miller that any suspension based on a failure to appear should rightfully go away when the FTA has been cleared by appearance before a judge and setting another court date. Palaschak explained to Officer Miller that Palaschak appeared on October 6, 1995, Friday before Judge Roland Purnell in Ventura who then, with the cooperation of the Calabasas court, gave Palaschak a new court date to appear in Calabasas and released Palaschak thereby presumably clearing the FTA
31.Palaschak also explained that a driver license is a substantial liberty and property interest which cannot rightfully be taken away without notice and opportunity to be heard - and therefore any alleged suspension would be invalid.
32.Palaschak offered to provide Officer Miller with paper proof from court that he had appeared in court on approximately October 6, 1995 and set a new court date for the alleged failures to appear.
33.Officer Miller and Port Hueneme knew on October 6, 1995, that DMV information may at times systematically inaccurately fail to acknowledge the clearance of a failure to appear.
34.Palaschak explained to Officer Miller that municipalities greatly impede people's progress in life when they take their motor vehicles.
35.Palaschak explained to Miller that Palaschak had already suffered the loss of a previous motor vehicle by police seizure within the past 12 months for 3 consolidated unpaid parking tickets from 1991 which Palaschak had appealed.
36.Palaschak explained to Miller that Palaschak was in a very bad financial situation and would probably lose his car because he could not afford the towing costs.
37.Palaschak explained Bell v Burson to Officer Miller and explained that it was not constitutionally possible for Palaschak's license to have been suspended because Palaschak had no notice nor opportunity to be heard - and had committed no act justifying suspension of a driver license - or seizure of a car.
38.Palaschak explained to Officer Miller that VC §14602.6 is unconstitutional because it deprives a person of a substantial property interest as punishment for a crime before trying him for the crime.
39.California vehicle Code section 14602.6 is unconstitutional.
40.California's vehicle code section 14602.6 is patently unconstitutional because it denies due process by assessing a penalty prior to a judicial determination of guilt.
41.VC 14602.6 is unconstitutional because it permits a judicial determination to be made by a non-judicial officer who is a witness.
42.VC 14602.6 is unconstitutional because it permits a judicial determination to be made by the officer without consideration of any evidence offered by the accused driver.
43.VC 14602.6 is unconstitutional because it is used to effect excessive punishment for speeding and parking tickets.
44.VC 14602.6 is used in conjunction with other statutory deprivations to constitute a scheme to abrogate criminal due process in the very court where criminal due process is exposed to the most people - traffic court.
"[California vehicle code] §14602.6, Driving without a license; arrest; seizure and impoundment of vehicle; storage hearing:
(a) Whenever a peace officer determines(8) that a person was driving a vehicle while his or her driving privilege was suspended or revoked or without ever having been issued a license, the peace officer may immediately arrest that person and cause the removal and seizure of that vehicle in accordance with Chapter 10 (commencing with Section 22650) of Division 11. A vehicle so impounded shall be impounded for 30 days.
(b) The registered and legal owner of a vehicle that is removed and seized under subdivision (a) or their agents shall be provided the opportunity for a storage hearing to determine the validity of the storage in accordance with Section 22852." - Vehicle code §14602.6 - effective January 1, 1995.
45.Vehicle code section 14602.6 is void on its face and cannot be redeemed.
46.The statute is defective in that there is no speedy and adequate remedy for persons, like Palaschak, who were not driving with a suspended license, who offered to prove it, who were subsequently exonerated of driving on a suspended license but who nonetheless suffer the loss of a motor vehicle.
47.A driver license may not constitutionally be summarily administratively suspended.
"The freedom to make use of one's own property as a means of getting about from place to place, whether in pursuit of business or pleasure, is a liberty which under the 14th amendment cannot be curtailed by a state without due process of law. U.S. v Guest 383 US 745, 16 L Ed 2d 239; Wall v King 206 F2d 878; Passenger Cases, 7 How 283, 12 L Ed 702." - Brief of prevailing party in Bell v Burson (May 1971) 402 US 535, 29 L Ed 2d 90, 91 S Ct 1586.
48.Palaschak explained to Officer Miller that only a judge may determine the punishment for a crime - and punishment cannot be imposed prior to trial.
49.Plaintiff was forced to sit on his hands in handcuffs in the back seat of a police car behind a steel cage that unduly restricted his movement.
50.As a foreseeable result of sitting on his handcuffed hands plaintiff suffered pain and soft tissue damage.
51.Officer Miller explained to Palaschak that Miller would telephone regarding the out of county warrants to inquire whether Los Angeles would come to retrieve Palaschak.
52.Plaintiff was photographed, fingerprinted, cited and released at the Port Hueneme police station with the crate of files but without his car.
53.Palaschak's release demonstrates that there was not adequate reason to hold Palaschak - and therefore a tow could not be justified as incidental to arrest - nor was the tow predicated on safety considerations.
54.The impoundment was punishment - before trial. Defendant Municipal Court of Los Angeles County issues many arrest warrants with knowledge that Los Angeles County jail will cite and release for offenses less than $2500 in magnitude and with no intent to retrieve the arrested person and in so doing abuses the arrest process.
55.Defendant Officer Miller is a former Los Angeles police officer.
56.Defendants Port Hueneme and Officer Miller knew Los Angeles practice and intended to cite and release.
57.Defendants Port Hueneme and Officer Miller therefore should have refrained from towing his car but in fact towed his car to punish Palaschak before trial.
58.Port Hueneme took Palaschak's California photographic driver license card from Palaschak and did not return it to Palaschak.
59.Palaschak had no telephone nor had he the money to use a pay phone. Therefore he could not call Airport Chevron.
60.Palaschak waited for the notice that statutorily is required to be sent within 48 hours. It did not come.
61.On Sunday May 12, 1995, the registered automobile of Eugene Martinez was seized by Airport Chevron and police employed by the City of Port Hueneme.
62.Postmark indicates that the notice was not sent until Friday 17 May 1996.
63.Under VC §22852 the notice should have been sent on 14 May at the latest.
64.Officer Miller wrote Palaschak's then current home address on the ticket - but did not ask for Palaschak's mailing address.
65.On 10 November 1995 when the 30 day statutory period of impoundment(9) had nearly elapsed Palaschak sent Letter #2271 to defendant Airport Chevron inquiring about his car.
66.The letter was addressed to Airport Chevron 561 Buena Vista Oxnard CA 93030. It stated: "On approximately 11 October 1995 you towed my red Hyundai from the Ralphs parking lot at the intersection of Ventura Blvd and Channel Islands blvd. I would like to get my car back. This is the second car that the police have taken from me in 12 months. . . . I want my car back."
67.Letter #2271 did not return to Palaschak; he therefore concludes that it was delivered.
68.Palaschak received no reply from Airport Chevron.
69.Palaschak sent a similar inquiry to the Oxnard DMV and received a handwritten reply saying to contact the tow yard.
70.Palaschak wrote letter #2273 to Officer Miller on Nov 10 1995 inquiring about his car.
71.Officer Miller made no reply.
72.These 3 letters informed Airport Chevron, and City of Port Hueneme, and DMV that Palaschak claimed ownership in the car.
73.Airport Chevron, City of Port Hueneme and DMV should have provided Palaschak with an opportunity to contest the tow and deprivation of his car.
74.By refusing to communicate with Palaschak and by depriving Palaschak of an opportunity to contest the taking of his car, defendants violated Palaschak's constitutional and statutory right to a pre-deprivation hearing or at least a post deprivation hearing - and they deprived him of his car before convicting him.
75.On Thursday January 4, 1996 the charges of 14601.1 were dismissed before Judge Clark in Ventura. In fact, as Palaschak told Officer Miller from the inception, an element of the crime (14601.1 - the purported basis for the seizure of Palaschak's car) was missing. The missing element was knowledge of the alleged suspension.
76.Palaschak was represented by appointed lawyer Joseph O'Neill of Oxnard.
77.In fact, as Judge Clark pointed out from the bench, Palaschak was on Jan 4, 1996 "license eligible".
78.A printout of Palaschak's DMV record then showed only 2 blemishes - the aforementioned 2 speeding tickets from the Calabasas branch of the Malibu court district.
79.Even if the action of defendants satisfied the statutory requirement for notice, and if Palaschak's letter failed to request a hearing, the statute and its application nonetheless denied plaintiff Palaschak fundamental due process in violation of 42 USC 1983.
1st cause of action: Unconstitutional Forfeiture without 5th amendment Due Process
80.Plaintiffs incorporate every paragraph of this complaint in every cause of action in this complaint as though fully set forth in that cause of action.
81.No judicial process was utilized to affect forfeiture of Palaschak's auto and possessions therein. No process constitutes per se denial of 5th amendment(10) due process.
82.All defendants are liable to plaintiff Palaschak and others similarly situated.
2nd cause of action: 8th amendment violation - Punishment despite dismissal
83.Plaintiffs incorporate every other paragraph of the complaint as though fully set forth in this cause of action.
84.Although Officer Miller accused Palaschak of driving on a suspended license, the court dismissed the charge.
85.An element of the crime was missing: knowledge of the suspension.
86.Palaschak's driver license was valid on 12 Oct 1995 immediately prior to the traffic stop.
87.Palaschak's driver license was not constitutionally suspended on 12 Oct 1995 before the traffic stop.
88.All defendants except Airport Chevron knew at the time of the traffic stop that this element was lacking.
89.Punishment despite dismissal is a foreseeable result of punishing prior to trial.
90.Palaschak was indigent when his car was taken from him on Oct 12, 1995. He could not pay for the tow charge.
91.On January 4,1996 the charges of driving on a suspended license were dismissed.
92.The remedy of seeking subsequent recourse is inadequate.
"All that the seizure left him ... was the right to bring a claim for the return of title at some unscheduled future hearing" - U.S. Supreme Court in condemning a similar pre-hearing seizure in U.S. v Good Real Property(11).
93.This red Hyundai was the 2nd car unconstitutionally seized from Palaschak within 12 months(12).
94.All defendants are liable to Palaschak under 42 USC §1983.
95.Injunctive relief is justified.
3rd cause of action: §1985(3)(c ) Conspiracy to deprive citizen of constitutional rights.
96.Plaintiffs incorporate every other paragraph as though fully set forth in this cause of action.
97.Defendants County of Los Angeles, Municipal Court of County of Los Angeles, and DMV have hired executives from each other including Sally Reed.
98.DMV hires its executives from the County of Los Angeles or Municipal Court of the County of Los Angeles.
99.Defendant Sally Reed is the Chief Administrative Officer of Defendant County of Los Angeles.
100.Defendant Sally Reed has been hired by Defendant DMV.
101.Frank Zolin once headed the DMV.
102.On information and recall, plaintiff asserts that before heading the DMV, Frank Zolin was the chief executive officer of Defendant Municipal court of Los Angeles.
103.Before heading the DMV, Frank Zolin was the chief executive officer or chief administrative officer of County of Los Angeles or the Los Angeles Superior or Municipal Court.
104.Defendant Los Angeles County is strapped for money.
105.Stress from the financial problem contributed to Sally Reed's departure from employment by defendant County of Los Angeles.
106.Defendants Municipal Court, County of Los Angeles, and DMV are similar in size, goals, and function - and they have mutual interests.
107.The dominant mutual interest is obtaining money to pay their employees and contractors.
108.A substantial source of revenue for defendant court and defendant county is traffic tickets and parking tickets.
109.A substantial source of revenue for the DMV is fees including license reissue fees and registration fees.
110.Defendants government entities communicate their needs to each other through serially shared executive officers including Zolin and Sally Reed.
111.An ombudsman is an officer who speaks for the consumer or user of an organization's services.
112.All defendants have no ombudsman.
113.All governmental defendants herein cooperated to attempt to obtain maximum revenue from the ticket and car registration system fee collection system.
114.In do doing they violated the rights of plaintiff.
115.The violation was foreseeable, knowing, and reflects a trend of growing institutional disregard for constitutional rights.
116.All defendants conspired to deprive Plaintiff Palaschak and others similarly situated of their constitutional immunity from double jeopardy.
117.Airport Chevron should and could have known that the element of knowledge (i.e., notice) was missing and that a 14602.6 tow was not justified.
118.Airport Chevron refrained from knowing and thereby conspired with other defendants against plaintiff.
119.All defendants so conspired willingly and knowingly with the intent to profit financially by depriving plaintiffs of their constitutional rights.
120.All violations of the constitution described herein were foreseeable results of the conspiracy of defendants.
121.All defendants are liable for all acts of all other defendants pursuant to the conspiracy, namely, all acts in furtherance of the policy of recklessly seizing and impounding automobiles in contravention of the constitution.
122.Defendants Officer Miller and Port Hueneme were contemporaneously warned by Palaschak (as described herein, advice to Miller being presumed to be advice to the Port Hueneme) that their actions violated the constitution and chose to violate Palaschak's rights after being advised.
123.By so conspiring, even if only by tacit compliance with official policy, all defendants violated 42 USC 1985(3) ( c) - depriving persons of rights or privileges and are liable to Palaschak and other class members.
124.The acts of all defendant violate 18 USC 241 - which makes it a federal crime to conspire to deprive rights of citizens; and 18 USC 242 - which makes it a federal crime to deprive persons of rights under color of law.
125.Officer Miller violated his oath to uphold the constitution - which includes the supremacy clause(13).
4th cause of action: Unconstitutional violation of double jeopardy immunity
126.Plaintiffs incorporate every other paragraph of the complaint as though fully set forth in this cause of action.
127.By seizing Palaschak's automobile and its contents (and that of similarly situated persons) in addition to arresting and prosecuting them, Port Hueneme, Officer Miller, and Airport Chevron violated the constitutional immunity against double jeopardy(14).
128.This violation is actionable under 42 USC 1983.
5th cause of action: Unconstitutional La Fleur irrebuttable presumption
129.Plaintiffs incorporate every other paragraph of the complaint as though fully set forth in this cause of action.
130.The Supreme Court ruled in Cleveland Board of Education v La Fleur (1974) 414 US 632 that an irrebuttable presumption regarding a governmental benefit or burden is a form of denial of due process.
131.The seizure of Plaintiff's car was such a burden imposed without chance of rebuttal(15).
132.As aggravation, Port Hueneme eliminated not only refutability but discretion regarding towing.
133.The purported suspension of Palaschak's driver license was summary and irrebuttable.
134.The suspension was without adequate notice and opportunity to be heard.
135.The suspension violated due process(16).
136.The suspension was therefore unconstitutional.
137.The suspension was therefore invalid.
138.The summary suspension by automatic action of computers and court clerks was for an act that has no nexus to driving ability, namely: failure to pay a speeding ticket or repeatedly appear.
139.Defendants compounded the constitutional violation founding a forfeiture on a unconstitutional (and hence invalid) suspension.
140.Defendants employed the logic of "presumed validity" to simplify their "determination(17)" that a license is suspended.
141.Presumed validity is inappropriate where the burden is on the driver to initiate reactivation of his license by submitting an abstract.
142.Defendants were aware that driver license reports are intentionally inaccurate to the extent that the burden is on the driver to prove correction by abstract.
143.The U.S. Supreme Court recently announced that constitutional guarantees may not be abrogated in the name of police expediency absent exigency, of course.
The principal question presented is whether, in the absence of exigent circumstances, the Due Process Clause of the fifth amendment prohibits the Government in a civil forfeiture case from seizing real property without first affording the owner notice and an opportunity to be heard. We hold that it [the 5th amendment] does [prohibit such forfeitures]. - Justice Kennedy in the first words of U.S. v Good Real Property (Dec 1993) 114 S Ct 492.
144.Defendants DMV and Los Angeles County corrupt the soundness of driver licensing process by utilizing it as a compulsory revenue generator(18).
Logical Fallacy implicit in VC §14602.6 : Pretext: Suspension as Proxy for Dangerous Driver
145.The logical fallacy implicit in VC 14602.6 is that police are protecting us by taking unsafe drivers off the road.
146.In fact many, if not most, unlicensed drivers are unlicensed simply because they cannot afford to pay a ticket or because they have not overcome the obstacles imposed by the DMV such as the requirement of procuring an abstract (which costs $4 or $5), paying a reissue fee (which can be $100) or paying the cost of alcohol school (sometimes $20 per week).
147.These drivers are not dangerous drivers and indeed will become licensed when they pay money to somebody, namely an insurance agent, the DMV, a parking enforcement agency, or a court.
6th cause of action: Defamation or false light in the public eye or §1983
148.Defendants DMV, Sally Reed, County of Los Angeles, and Municipal Court of Los Angeles County cooperate and have conspired by official policy to putatively suspend the driver license for alleged failures to appear but fail to reactivate the license and amend the driving record when the driver rectifies his failure to appear.
149.By failing to so reactivate and amend, the DMV, Sally Reed, County of Los Angeles, and Municipal Court knowingly misrepresent the true driving record.
150.The DMV requires the driver to procure an abstract to prove the correction.
151.DMV printouts are difficult for the average reader to understand.
152.The difficulty arises from excessive use of abbreviations.
153.The difficulty arises from failure to use enough, if any, sentences.
154.The DMV reports fail to tell the driver side of the story.
155.Defendants DMV, County of Los Angeles, and Municipal Court of Los Angeles are familiar with each other's policies and knew or should have known that their system of reporting license suspensions when combined with their other constitutionally oppressive court practices results in half truths and falsities in their reports which in turn result in false arrests.
156.As a result of this practice Palaschak suffered the loss of his car, and calumny.
157.Such knowing misrepresentation constitutes defamation and is actionable under 42 USC 1983.
158.The actions of DMV, County of Los Angeles, Sally Reed, and Municipal Court of Los Angeles constitute the reputational tort of false light in the public eye.
159.Whether or not a person should be arrested depends on many weighed factors. Defendants mistakenly attempt to simplify it into a yes or no on a DMV report. The report in Palaschak's case was incapable of weighing extenuating circumstances(19).
160.Palaschak's theory of macro-psychology asks why a bureau sits in judgment of a person who simply drove too fast when, in fact, we, as self-governing people created governments to serve us - not rule us. His theory insists that sometimes governments, like humans, need to be understanding - kinder and gentler, in the words of George Bush.
7th cause of action: False arrest, §1983, §1985(3)(c )
161.Plaintiffs incorporate every other paragraph as though fully set forth in this cause of action.
162.The DMV printout available to Officer Miller showed that Palaschak had insufficient notice to justify a conviction of 14601.1.
163.Officer Miller had insufficient basis for arresting Palaschak for 14601.1.
164.Officer Miller should have merely ticketed Palaschak.
165.Miller and City of Port Hueneme are liable for false arrest.
166.Miller and City of Port Hueneme are liable for 42 USC 1983.
167.As described elsewhere, Palaschak had made another court date with Calabasas court only days before the arrest.
168.The offense triggering the putative suspension was 2 speeding tickets.
169.The 55 mph speed limit has since been repealed.
170.It should have been repealed 20 years ago - 1 year after it was instated.
171.By knowingly refusing to clear FTA's defendants DMV, County of Los Angeles, Municipal Court of Los Angeles County each violated Palaschak's rights.
172.The defendants in the preceding paragraph are liable for 42 USC 1983.
173.All defendants except Airport Chevron are liable for false arrest, false imprisonment, and conspiracy to violate Palaschak's constitutional rights.
8th cause of action: Unconstitutional Indigence filter - Edwards v California(1941)
174.Indigence may not lawfully be used as a criteria to restrict travel. Edwards v California(20).
175.Palaschak could not pay tow and storage charges .
176.As a matter of constitutional law even people who cannot pay fees immediately have a right to use the highways - except for toll roads.
177.Plaintiffs incorporate every other paragraph as though fully set forth in this cause of action.
178.The action of all defendants operates as a filter to remove indigents from the highway.
179.The net effect, the de facto effect, is the same as that described and proscribed in Edwards - California's discriminatory impediment of travel from state to state using wealth as a basis for curtailing travel by poor people in California during a depression. The curtailment is real. Defendants took Palaschak's car and won't give it back.
9th cause of action: Taking driver license w/o 5th amendment due process. Bell v Burson
180.Plaintiffs incorporate every other paragraph of the complaint as though fully set forth in this cause of action.
181.From the summary of Petitioner Bell's brief in Bell v Burson:
"The freedom to make use of one's own property as a means of getting about from place to place, whether in pursuit of business or pleasure, is a liberty which under the 14th amendment cannot be curtailed by a state without due process of law. U.S. v Guest 383 US 745, 16 L Ed 2d 239; Wall v King 206 F2d 878; Passenger Cases, (1849) 7 How 283, 12 L Ed 702.
Whether or not protection of a potential creditor's possible future clam is valid, it does not outweigh the individual rights to property, liberty, and interstate travel." - Petitioner's brief at 29 L Ed 2d page 918.
182.In Bell v Burson (1971) 402 US 636, 29 L Ed 2d 90, 91 S Ct 1585 the U.S. Supreme Court indicated that an insurance dispute does not constitute the exigency to justify a driver license deprivation without first giving notice and opportunity to be heard:
Finally, we reject Georgia's argument that [if] it must afford the licensee an inquiry into the question of liability, that determination, unlike the determination of the matters presently considered at the administrative hearing, need not be made prior to the suspension of the licenses. While "many controversies have raged about . . . the Due Process Clause," Ibid., it is fundamental that except in an emergency situation (and this is not one)(21) due process required that when a state seeks to terminate an interest such as that here involved, it must afford "notice and opportunity for hearing appropriate to the nature of the case" before the termination becomes effective. Ibid. Opp Cotton Mills v Administrator, 312 US at 152-156, 85 L Ed at 639-641; Sniadach v Family Finance, above; Goldberg v Kelly above; Wisconsin v Constantineau, 400 US 433, 27 L Ed 2d 515 (1971).
183.The issue of a hearing is unfinished business for the DMV.
"Following Rios(22) over 20,000 person have requested such hearings, and the Department of Motor Vehicles, unable to conduct adequate hearings due to a lack of funds and manpower, stayed all proceedings on revocation until the legislature either changed the law or provided the funds." - Review of Selected 1974 California Legislation (1975) 6 Pacific Law Journal 335, 340.
184.Defendants DMV and County of Los Angeles conspired to deprive Palaschak and similarly situated persons of a substantial property and liberty interest, a driver license, without due process of law, for reasons lacking adequate nexus to the ability to use the roads safely - for which plaintiffs are entitled to redress under 42 USC 1983.
10th cause of action: Punishment before trial in violation of 6th amendment
185.Plaintiffs incorporate every other paragraph as though fully set forth in this cause of action.
186.A statute that provides for punishment before trial is unconstitutional - in violation of the 6th amendment.
187.VC 14602.6 , reprinted herein, is such a statute and unconstitutional.
188.VC 22852, reprinted herein, is such a statute and is unconstitutional.
189.Punishment before trial for driving on a suspended license is unconstitutional; all defendants contributed to this deprivation to plaintiff and others similarly situated; plaintiff(s) are entitled to redress.
11th cause of action: Unconstitutional failure to prove elements of crime in criminal case
190.Plaintiffs incorporate every other paragraph as though fully set forth in this cause of action.
191.Palaschak's car was taken to punish him for driving without a license.
192.Taking a person's car for driving with a suspended license constitutes punishment for a crime - specifically the crime of VC 14601.1 or one of the other 14601 crimes.
193.The seizure triggers the constitutional mandate that the prosecution must prove all elements of the crime beyond a reasonable doubt - before punishment.
194.Plaintiff Palaschak and others similarly situated were subject to the unconstitutional provision of vehicle code section 22852 used with VC 14602.6. They are unconstitutional to the extent that they required Plaintiff, then a criminal defendant, to pre-register(23) his car in order to receive notice of the right to a hearing on his car.
195.They require him to petition and prove ownership and innocence in order to avoid the punishment of loss of his car.
196.This stands the concept of "innocent until proven guilty in a court of law" on it head.
197.Plaintiffs herein lost cars and contents unconstitutionally and are therefore entitled to redress including punitive damages pursuant to 42 USC 1983.
12th cause of action: Seizure of car that is exempt from levy
198.Plaintiffs incorporate every other paragraph as though fully set forth in this cause of action.
199.The procedure utilized by Airport Chevron under color of state law deprived defendant Palaschak and similarly situated plaintiffs of their statutory exemption right pursuant to California CCP §704.010, §703.140 et seq which exempt plaintiff's car and the proceeds from levy.
200.Plaintiff is entitled to redress under §1983 and §1985(3)(c ).
13th cause of action: Conversion after 30 day impound of auto and property inside it
201.Plaintiffs incorporate every other paragraph as though fully set forth in this cause of action.
202.Palaschak wrote to defendants Airport Chevron, City of Port Hueneme (police) and Officer Miller and was nonetheless presented no opportunity to challenge the storage charges.
203.Defendants routinely and callously deprived plaintiff and others similarly situated of personal property by seizing motor vehicles and everything in them.
204.Palaschak was denied an opportunity to retrieve personal items from his impounded cars.
205.These personal items were taken without due process of law.
206.In the case of photographs, letters, files, legal files and other irreplaceable items the harm is irreparable harm justifying the remedy of writ of prohibition and specific performance.
14th c/a - De facto Discrimination against Californian drivers. Feudal peonage.
207.Palaschak's only traffic tickets in 4 years have been 2 speeding tickets - both near Calabasas on highway 101, a federal highway and an instrument of interstate commerce.
208.Calabasas branch of defendant Municipal Court of Los Angeles County generates a substantial portion of its revenue from enforcement of traffic laws including the former 55 mile per hour speed limit.
209.Californian indigent drivers suffer de facto discrimination compared to residents of other states who use California roads.
210.The penalty is a foreseeable result of the cooperation (conspiracy) of all defendants.
211.All defendants use computers and radios to track debtor victims of parking and speed traps, suspend their license summarily (or charge prohibitively high registration fees to pay the parking tickets), and ultimately seize their cars and hold them in jail to force a guilty plea.
212.Out of state drivers, and drivers whose cars are registered out of state benefit by lower registration fees and less oppressive enforcement of speeding laws by seizure and impoundment.
213.A causes of the de facto discrimination alleged herein is that the foreign state will often not suspend for failure to pay a California ticket - the result being that drivers in otherwise similar circumstances who commit the same offense, driving after failing to pay a ticket, escape the automatic impoundment.
214.Another cause is: the foreign state will not withhold registration for failure to pay California parking tickets.
215.Another case is: the foreign state will often issue tags for 2 years thereby subjecting their patrons to fewer encounters with tag watchers.
216.The traffic ticket system constitutes a de facto state of peonage for indigents - and especially so for California residents.
217.Feudalism is antithetic to freedom.
218.The constitution guarantees a republican form of government.
219.Peonage was outlawed in this country.
220.Plaintiffs are entitled to redress under the constitution and §1983 and§1985(3)(c ).
15th c/a: Systematic Denial of constitutional rights by traffic court and DMV
221.Primacy of the individual is the hallmark of a free society.
222.The history of the United States has been a history of increasing freedom and increasing respect for the rights of man.
223.Decreasing freedom would be a reversal of this 220 year old trend.
224.Equality under the law and Mutuality are fundamental goals useful in analyzing and perfecting human relationships and contracts.
225.Systems analysis is the science of analyzing systems to predict, control, perfect, and improve systems.
226.Douglas Palaschak coined the term macro-psychology© in 1993 and has written a short treatise defining this soft science of the psychology of relationships between the individual and groups.
227.Palaschak's 4th theory of macro-psychology is: Individuals are entitled to and must demand equality, respect, and mutuality vis-a-vis governments just as individuals demand equality, respect, and mutuality from other humans.
228.Palaschak's 5th theory of macro-psychology espouses the primacy of the individual, to wit:" In a free society, individual rights must be protected over the rights of groups including government, municipalities, cities, etc."
229.The main difference between American law and that of other countries is the primacy of the individual.
230.We create government to help us - not to control and tax us. Observe the primacy.
231.Government derives its power from the consent of the governed. Observe the primacy.
232.Governmental power is bounded by the terms of the constitution; individual freedom is not so bounded. Primacy.
233.Therefore parking tickets and traffic fines for speeding must be placed in perspective.
234.Therefore they must be considered minor - something like a civil debt.
235.They should be recognized for the random taxation that they are.
236.The culpability of a person who gets a speeding ticket should not be increased because the person refuses to plead guilty. The result is that poor people and people who choose to litigate are jailed for non-jailable offenses. The U.S. Supreme court in Pulliam v Allen (1984) 466 US 522, 80 L Ed 2d 565, 104 S Ct 1970 forbade prohibitive bail in otherwise non-jailable offenses and permitted assessment of costs and attorney fees against the magistrate who imposed the bail.
237.A debt owed to Palaschak does not escalate into a failure to appear simply because a defendant in a collection suit does not appear; rather there is simply a default which may be cured.
238.Similarly a debt owed by Palaschak to a government should be treated similarly.
239.Double standards are suspect. This double standard evinces a failure of the principle of equality of the individual vis-a-vis the governmental unit at a fundamental level - in the drafting of statutes.
240.If a debtor owes money to Palaschak the debtor can file a bankruptcy and the debt is cleared.
241.By comparison if Palaschak owes money to the traffic court then he must litigate the issue because fines are generally not dischargeable in bankruptcy.
242.The Calabasas ticket is merely an attempt to collect an alleged debt - for a "crime" that was only a crime for a brief 20 years in history.
243.If the government wants to change our behavior then they should just tell us rather than condition us like some Pavlovian dog. We deserve better.
244.Courts in enforcing parking meter and speeding tickets don't talk much about the crime.
245.Dialogue would reveal that many drivers are angry.
246.This anger is similar to the anger expressed in the Declaration of Independence as follows: "He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance."
247.Palaschak feels anger at traffic courts because they deny equal protection.
248.Ventura County D.A. refused to prosecute a verified complaint filed by Palaschak filed against a police officer. Deputy Gary Barrett (now a commission) told Palaschak it was against policy to prosecute citizen complaints on infractions.
249.To the extent that federal courts defer to traffic courts at the expense of individuals we diminish the primacy of the individual, the hallmark of free society and we reverse a 220 year old trend of increasing freedom.
250.Following natural bureaucratic instincts which mimic human instincts defendant Municipal Court of Los Angeles County has grown. It needs money to survive. It competes with individual humans for resources - money.
251.It has evolved into a system that values the collection of money but does not value the rights of defendants. Individually the offending practices seem innocuous. Most don't arise if the driver simply pays the ticket. But these seemingly innocuous violations of constitutional rights form a pattern and constitute a system designed to raise money at the expense of constitutional rights.
252.VC 14602.6 contributes substantially to the Orwellian specter of this systematic denial of constitutional rights.
253.The systemic effect is that Municipal Court of Los Angeles County uses disproportionate, scary, oppressive, and depressing force to collect fines that are actually taxes imposed randomly.
254.Plaintiffs incorporate every other paragraph as though fully set forth in this cause of action.
255.Palaschak telephoned the Calabasas court and appeared in person at Calabasas court for arraignment on two speeding tickets in January or February 1995.
256.The Calabasas court then began arraignment although they had no public defender, no prosecutor, and no judge - just a commissioner.
257.The commissioner wanted to assess a fine but Palaschak wanted to plead not guilty.
258.The commissioner did not ask Palaschak to consent to a hearing by a commissioner.
259.The commissioner chastised Palaschak for pleading not guilty and told Palaschak that there could be no challenges to the constitutionality of the traffic ticket system.
260.The commissioner then ordered to appear in Malibu the next week for re-arraignment.
261.Flooding caused closure of the Cross Creek bridge during the week of re-arraignment.
262.Palaschak neglected to promptly put the matter back on calendar.
263.Palaschak's neglect is the foreseeable result of a system that is designed to efficiently accept money but not to efficiently provide trials.
264.Disdain for the right of a defendant to ask for a trial and present pre-trial legal challenges and even statutory demurrers are a pattern in branch courts in Municipal Court of Los Angeles County - especially in branch court which are generally in a remote area near a freeway and exist to service the traffic ticket industry.
265.In 1991 Palaschak served 90 days (33 actual) in jail for failure to appear on a simple speeding ticket at a court of defendant Los Angeles Municipal Court even though he did indeed appear on approximately 6 occasions for trial(24).
266.From that experience and others in Los Angeles Palaschak learned that defendant Los Angeles County runs a dangerous jail staffed to a large degree by cruel people.
267.Having lived a sheltered life with civilized people Palaschak was amazed at the tremendous lack of civility in jail and the bad attitude toward defendants even inside the courtroom.
268.The bad attitude by judges appeared contagious; the staff took cue from the judge.
269.Ventura county is better and much less dangerous.
270.Summary of this cause of action: Systematic effect: Even though Palaschak appeared in court to set a new date to appear on the Calabasas speeding tickets, the DMV continued to show that his license was suspended. This resulted foreseeably in the impoundment of his only car thereby impeding Palaschak's ability to appear at Calabasas.
271.The systematic effect is that the citizen is discouraged from pleading not guilty in court.
272.The systematic effect is that the citizen is encouraged to simply pay the ticket.
273.The systematic effect is that the grand promise of the right to criminal due process gives was to deference to the government as bill collector - for speeding tickets.
274.Injunctive relief is appropriate to clear gridlock here where multiple courts and agencies impose circuitous or onerous burdens.
275.Criminal remedies are inadequate because the time spent in jail waiting for trial is generally longer than the sentence imposed.
16th cause of action: Impairment of constitutional right to access to traffic court
276.Plaintiffs incorporate every other paragraph as though fully set forth in this cause of action.
277.Palaschak's constitutional right to challenge the seizure of his car in court is impaired by the seizure of his car - a vicious circle.
278.There is no bus to Calabasas known to plaintiff.
279.Palaschak would have to transfer the case to Malibu, then take the Oxnard city bus to the Greyhound station, then take the Greyhound to Los Angeles, then take a Los Angeles city bus to Malibu - and he would then have to take all those buses back.
280.This trip cannot be made by indigents because bus fare is prohibitive - and even if they appeared they would likely have to appear again and again - until they pleaded guilty.
281.As long ago as 1215 people realized that trial close to home was fundamental.
282.Traffic courts exploit fear and anxiety to encourage people to pay tickets.
283.Those who can pay do pay but those who cannot suffer jail.
284.Jail in Los Angeles is dangerous - beyond the danger that can justifiably be imposed for inability to repeatedly show up in traffic court for a trial that will never come.
285.The seizure of Palaschak's only car caused an impairment of his livelihood which causes him to be temporarily unable to replace his transportation.
286.Wherefore Palaschak asserts that taking a person's car impedes fundamental access to the courts and should not be done absent exigency.
17th cause of action: Impairment of the mobility necessary to gather food and survive
287.It takes a village - or a car.
288.Plaintiffs incorporate every other paragraph as though fully set forth in this cause of action.
289.Palaschak is an independent isolated unusual person(25).
290.Palaschak is particularly vulnerable.
291.Plaintiff's ability to buy food, seek employment, work, move his property, put property in storage, buy paper, socialize, visit with an attorney, obtain medicine, apply for food stamps (should he decide to apply), and do many of the basics of life is impaired.
292.The village has disappeared. People need a car today.
293.Compared to a bus, transportation by car is more reliable for poor people because they can buy gasoline when they need it - or even receive it when they run on the side of the road. By comparison one must have $2 cash to make a round trip on the bus.
294.Palaschak lost his home after his car was seized, would have slept in his car, and as a result of the loss of his car suffered the loss of his cd rom library which was lost or stolen by hasty movers who were necessary because Palaschak did not have the use of his own car to move his possessions.
295.Plaintiff is entitled under §1983 to redress of this unlawful violation of his constitutional rights from the people who took his car.
18th cause of action - Impairment of constitutional right to earn a livelihood
296.Plaintiffs incorporate every other paragraph as though fully set forth in this cause of action.
297.Taking a person's car for a technical trivial traffic offense is Draconian, excessive and violative of the 8th amendment(26).
298.An automobile is necessary for Palaschak's livelihood - which consists from time to time in home delivery of bankruptcy papers throughout the Los Angeles area - or other driving tasks.
299.The Magna Charta prohibits forfeitures(27) and deprivations of livelihood even for a felony. The Magna Charta is enforceable in the United States as part of the common law(28) - Erie v Tompkins(29) notwithstanding.
300.VC 14602.6 as now enforced contravenes statutes of exemption and ancient precepts designed to ensure that punishment does not deprive a person of the right to earn a livelihood.
301.As a matter of law the right to earn a living is fundamental and cannot be taken without compelling state interest - much more than collection of a traffic fine.
302.Plaintiff is entitled under §1983 to redress of this unlawful violation of his constitutional rights from the people who took his car.
19th cause of Action: Impairment of right to travel in Interstate Commerce
303.Plaintiffs incorporate every other paragraph as though fully set forth in this cause of action.
304.Palaschak's car has been taken.
305.Palaschak is particularly vulnerable because he has no family here.
306.Palaschak's ability to earn a living has been impaired by the loss of his car.
307.Plaintiff's family has invited him to come home.
308.Palaschak's ability to retreat to his home state is impaired.
309.He has too much baggage to take a plane, bus, or train. It takes a car.
Plaintiff is entitled under §1983 to redress of this unlawful violation of his constitutional rights from the people who took his car.
Class allegations
310.The class is so numerous that joinder of individual members is impractical.
311.There are common questions of law and fact in the that are common to the entire class.
312.The claims of the representative plaintiff are typical of the class.
313.Plaintiff Palaschak is able to and will adequately represent the class - except to the extent that the impoundment of his automobile impairs his abilities and income as described herein.
314.Questions of law and fact common to the members of the class predominate over any questions affecting only individual members, and a class action is superior to other available remedies.
Class #1 definition. Victims of Unconstitutional seizure
315.Class #1 comprises all persons who suffered deprivation of car or other property without due process of law caused by defendants enforcing VC 14602.6 or under color of any other law or without benefit of color of law.
Class #2 definition - Victims of 8th amendment violation despite 14601 acquittal
316.Class two consists of all persons who suffered towing charges, loss of property, or other expenses as a result of enforcement of VC 14602.6 caused by defendants despite a dismissal or other non-conviction of the VC 14601.1, 14601 or other accusation underlying a seizure based on 14602.6.
Class #3 definition - Victims of conspiracy
317.Class three consists of all persons who suffered violation of their constitutional rights by defendants as a result of the enforcement of VC 14602.6.
Class #4 definition - Victims of double jeopardy
318.Class four consists of all persons who suffered double jeopardy by enforcement of VC 14602.6 caused by defendants.
Class #5 definition - Victims of irrebuttable presumption
319.Class five consists of all persons who suffered from any irrebuttable presumption including that implicit in 14602.6 caused by the enforcement of VC 14602.6 and 22852 by defendants.
Class #6 definition - Victims of half truth in DMV report
320.Class six includes persons who suffered an arrest or car impound based on VC §14602.6 based on a failure to appear where the FTA had been cleared by a new court date or disposition of the case where any defendant provided a report that failed to note that the driver had cleared the FTA.
321.Class 6 includes persons whose notice of an alleged suspension was insufficient to support a 14601.1, 14601, or 14601.2 conviction but who were nonetheless arrested.
322.Class 6 includes persons who suffered an arrest predicated on a putative license suspension where the suspension failed to satisfy the due process requirements of notice and opportunity to be heard prior to the hearing - as discussed in Bell v Burson (1971) 29 L Ed 2d 90.
323."Clearing the FTA" herein means arranging a new court date or disposing of the case.
Class #7 definition - Victims of false arrest
324.Class 7 consists of all persons who suffered an arrest for VC §14601.1, VC §146001, VC 14601.2 or any other offense that predicates 14602.6 seizure where the arrest was caused by defendant(s) when defendant(s) knew or should have known that the notice of the alleged suspension of the driver was inadequate to sustain a conviction of a crime requiring knowledge of the conviction - or where defendant failed to remove a suspension from the record of the driver in a case where the suspension was triggered by a failure to appear and the driver subsequently appeared - regardless of whether the driver provided an abstract to the DMV.
Class #8 definition - Victims who lose car for inability to paying towing charge
325.Class 8 consists of all persons who suffered the loss of their car or property therein due to inability to pay a tow or storage charge levied by Airport Chevron where the tow was based on VC §14602.6 or VC §22852.
Class #9 definition - Victims who suffered loss of driver license without due process
326.Class 9 consists of all persons who suffered a loss of their driver license without adequate notice and opportunity to be heard.
Class #10 definition - Victims of punishment before trial
327.Class 10 consists of all persons who suffered a punishment before trial where the punishment was the loss of property or the use thereof based on VC §14602.6 or VC §22852.
Class #11 definition - Victims of forfeiture of exempt automobile
328.There is no class #11 the membership therein appearing to be redundant to class 9.
Class #12 definition - Victims of conversion of automobile or property therein
329.Class 12 consists of all persons who suffered the loss of an automobile or property to defendants in connection with enforcement of §14602.6 or §22852 where the property was exempt from levy pursuant to CCP §704.010, CCP §703 et seq. CCP §704 et seq, or any other applicable bankruptcy or state exemption.
Class #13 definition - Victims of conversion after 30 day impound
330.Class 13 comprises all persons whose car or property was lost to them as a result of failure of defendants to adequately notify them of their rights. The class includes persons whose vehicles were not registered to them.
Class #14 definition - none
331.There is no class 14. It is indistinguishable from other classes.
Class #15 - Persons denied a prompt trial
332.Class 15 consists of all persons who appeared in Calabasas court and were sent to Malibu court because they invoked a constitutional protection such as a trial or appointed counsel. Class 14 also included persons who were asked to come back a 2nd time for the same event due to the inability of the prosecution or court to go forward.
Class #16 - Persons unable to go to court because of car seizure
333.Class 16 comprises all persons whose only vehicle was by seized by Airport Chevron or City of Port Hueneme enforcing VC §14602.6 resulting in inability or difficulty in attending the very court at which they could otherwise clear up the infraction (or misdemeanor or other traffic or other offense) that caused the triggering of the VC §14602.6 seizure - or any court.
Class #17 - Person who sleep in their car and could not do so after impound of car
334.California is suffering the worst depression since the great depression of the 1930's.
335.Many Californians sleep in their car.
336.The number of persons sleeping in their car is increasing.
337.The phenomenon of otherwise normal people sleeping in their car was depicted in a recent episode of "Melrose Place" wherein Allison, the character played by Courtney Thorne-Smith, slept in her car after the breakup with her boyfriend caused financial hardship.
338.Compared to a homeless person, one with a car is substantially more capable of coping.
339.Class 17 comprises persons whose car was seized by defendants pursuant to 14602.6 or 22852 whose ability to gather food, find shelter, etc was hampered by the seizure. Class 16 includes persons who slept in their car for lack of other shelter prior to the seizure - and those persons who, but for the seizure, would have slept in their car, and persons who lost property for lack of their car.
Class #18 - Persons who lost a job, income, or employment
340.Class 18 comprises persons whose car was seized by defendants under color of 14602.6 or 22862 and who lost work, income, employment as a result of being transportationally impaired.
Class #19 - Persons who became transportationally challenged due to impound
341.Class 19 comprises persons who would otherwise depart the state to seek relief from the depression or for any other reason and whose departure or other transportation was hampered by defendants enforcing 14602.6 or 22852 in derogation of the rights of plaintiffs.
342.Cars are important for survival and should not be seized without due process and compelling reason.
Jury Demand
We demand a jury.
Class Prayer
Plaintiffs demand: Unspecified Compensatory damages for property loss and dignitary loss; Unspecified Punitive damages in proportion to the wealth of each defendant;
Declaratory and Injunctive relief and Attorney fees as specified in Palaschak's prayer. All other appropriate relief.
Palaschak's Alternative Prayer even if class action is denied
Even if class certification is denied Plaintiff Palaschak demands the following relief:
Compensation of $100,000 for loss of his car and the possessions in it and resulting limitations on his activities;
Compensation of $50,000 for the dignitary invasion and violation of constitutional rights;
Punitive damages in appropriate proportion to the wealth of defendants, but not less than $20 million from County of Los Angeles, $10 million from DMV, $1 million from Port Hueneme and $50,000 from Airport Chevron.
Attorney fees under 42 USC 1988 and private attorney general theories.
Declaratory relief: a declaration that California Vehicle code §14602.6 and §22852 are unconstitutional, violative of the supremacy clause and cannot be rehabilitated by interpretation; a declaration that the 55 mph speed limit was routinely violated and its enforcement was as a matter of law a sad chapter in democracy; declaration that the traffic ticket system as affecting plaintiffs herein is in need of reform; that the practice of ballooning minor speeding tickets into failures to appear and sending drivers to the dangerous Los Angeles county jail is unconstitutional; a 16,000% penalty for failure to put a quarter in the meter is excessive.
Specific Performance: Return of Palaschak's property inside the Hyundai and a car equivalent to the Hyundai.
Injunctive Relief: Order as follows: Defendants shall not violate the constitution. Specifically:
DMV henceforth shall not suspend license without notice, opportunity to be heard, local forum, unbiased hearing officer who is not a DMV employee and not the prosecutor; Airport Chevron shall comply with the spirit and letter of the law and shall inform owners even if they are not registered owners, shall not hold cars for ransom prior to judicial order, shall afford convenient retrieval of personal items in automobile. All plaintiffs facing liability for old 55 mph traffic tickets are hereby granted immunity from prosecution by defendants. Injunction to establish reforms and recommend Institution of an ombudsman to insure respect of liberty - and the good service that we deserve from the portion of our government that is a defendant herein. Defendants shall henceforth refrain from turning a speeding ticket into something greater than the penalty for the original ticket. Defendants shall not take a persons last car for inability to pay a debt or fine.
Municipal Court of Los Angeles and County of Los Angeles shall provide public defender and judge at 1st court appearance at all venues or dismiss the case, and shall not issue arrest warrants for less than $2500 offenses when their jail is too full and is booking and releasing for less than $2500 offenses; shall not put traffic offenders in county jail until they open up the new jail; shall not issue arrest warrants for failure to appear when the defendant did in fact appear but the court was not ready.
City of Port Hueneme shall not enforce 14602.6 in violation of the constitution and other pertinent law, shall not seize vehicles until making a determination that the seizure is valid, and shall not seize a persons car if the city is planning to cite and release the person, and shall make that determination prior to towing the car - or, in the alternative, shall return the car where the driver is cited and released.
All other appropriate relief.
Signed __________________________ Date: 19 May, 1996
Douglas Palaschak, Plaintiff
Appendix #1 - Text of California Vehicle code §22852 and Scofield annotation.
"§22852, Storage; notice; hearing; application of section
(a) Whenever an authorized member of a public agency directs the storage of a vehicle, as permitted by this chapter, or upon the storage of any vehicle as permitted herein (except as provided in subdivision (f) or (g)), the agency or person directing the storage shall provide the vehicle's registered and legal(30) owners of record, or their agents, with the opportunity for a post storage hearing to determine the validity(31) of the storage.
(b) A notice of the storage shall be mailed or personally delivered to the registered and legal owners within 48 hours, excluding weekends and holidays, and shall include all of the following information:
(1) The name, address, and telephone number of the agency providing the notice.
(2) The location of the place of storage and description of the vehicle, which shall include, if available, the name or make, the manufacturer, the license plate number, and the mileage.
(3) The authority and purpose for the removal of the vehicle.
(4) A statement that, in order to receive their post storage hearing, the owners, or their agents, shall request the hearing in person, writing, or by telephone within 10 days of the date appearing on the notice. (Palaschak requested his car back in writing in letters #2271, #2272, #2273. The text of one letter appears in the complaint herein.)
( c) The post storage hearing shall be conducted within 48 hours of the request, excluding weekends and holidays. The public agency may authorize its own officer or employee to conduct the hearing if the hearing officer is not the same person who directed the storage of the vehicle.
(d) Failure of either the registered or legal owner, or his or her agent, to request or to attend a scheduled hearing shall satisfy the post storage hearing requirement. (Palaschak was the owner although he had not registered my vehicle due to obstacles in the form of 2 parking tickets that he could not pay then - and which he contends were, well, unconstitutional.)
(e) The agency employing the person who directed the storage shall be responsible for the costs incurred for towing and storage if in it is determined in the post storage hearing that reasonable grounds for the storage are not established.
(f) This section does not apply to vehicles abated under the Abandoned Vehicle Abatement Program pursuant to Sections 22660 to 22668, inclusive, and Section 22710, or to vehicles impounded for investigation pursuant to Section 22655, or to vehicles removed from private property pursuant to Section 22658.
(g) This section does not apply to abandoned vehicles removed pursuant to Section 22669 which are determined by the public agency to have an estimated value of three hundred dollars ($300) or less."
Annotation from West's Annotated code:
Due process rights of owner of unregistered automobile were violated, if owner timely requested post towing hearing to contest propriety of tow and police officer denied request on ground hearing was not available; such a denial would also violate this section [VC 22852]. Scofield v. City of Hillsborough, C.A.9 (Cal.)1988, 862 F.2d 759."
1. "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, 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." - 42 USC 1983.
2. "The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:. . . (3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, or any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States." - 28 USC 1343(3).
3. Bivens v Six Unknown Named Agents of the FBI (1971) 403 US 388, 91 S Ct 1999, 29 L Ed 2d 619.
4. The word "license" here is used reluctantly because, although it is the common parlance, in fact Palaschak could not present a "license" because a license is intangible. What Palaschak presented was prima facie proof of a license. The erosion in meaning is distressing to libertarians because although the right, license and privilege to drive can all be litigated in court, the police state uses the word "driver license" when asking if us if we have that piece of plastic that they gave us. The danger is that the naive might conclude that a feudal system controls they roads - and indeed a feudal and otherwise degenerate system is evolving. The proof: 1) denial of equal protection of the traffic laws by the refusal of prosecutors to prosecute citizen complaints of driving infractions committed by police officers; and 2) filing and prosecution of traffic infractions by the courts without filing of a complaint or any action by the prosecutor - often without any appearance in court by a prosecutor.
5. The veracity of this report and the prologue to this traffic stop are discussed below herein.
6. Vehicle code §14601.1 reads in part as follows:"1460.1. Driving when privilege revoked or suspended for other reasons. (a) No person shall drive a motor vehicle when his or her driving privilege is suspended or revoked for any reason other than those listed in §14601 or §14601.2 and when the person so driving has knowledge of the suspension or revocation. Knowledge shall be presumed [even this is a rebuttable presumption - because irrebuttable presumptions violate the constitution - see Le Fleur discussed herein] if notice has been given by the department to the person. The presumption established by this subdivision is a presumption affecting the burden of proof." This means that the presumption may be rebutted by, for example, a contention that the license could not lawfully be suspended without notice and opportunity to be heard the very issue presented by Palaschak in previous bouts with the DMV and presented in Bell v Burson (1971) 402 US 636.
7. Official policy determinants are explained in Monell v New York (1978) 436 US 658, 56 L Ed 2d 611, 98 S Ct 2018. See also Scofield v. City of Hillsborough C.A.9 (Cal.)1988, 862 F.2d 759.
8. The word "determines" calls for a weighing of facts and conclusion of law which must be made by somebody who (1) knows the law and (2) is unbiased in weighing the facts - like a neutral and detached magistrate, for example. This new 14602.6 is a blatant attempt to deprive accused criminals of due process of law, and in Palaschak's case his innocence of 14601.1 was alleged from the inception, was obvious to the police officer (by virtue of absence of notification of suspension on Palaschak's DMV record), and could have been proven by Palaschak who offered proof in the form of court papers proving that he appeared and had a new court date for the 2 speeding tickets in Malibu. See prologue.
9. California vehicle code 14602.6, a new unconstitutional statute effective January 1, 1995, provides for unconstitutional immediate 30 day impoundment of the car of a person accused of driving while his driver license is suspended.
10. The due process clause of the 5th amendment reads as follows: "No person shall . . . be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
11. U.S. v James Daniel Good Real Property (1993) 114 S. Ct. 492 at page 501, top of column 2.
12. At the suggestion of Magistrate Reichman, the first seizure is the subject of a separate lawsuit not yet filed.
13. U.S. Constitution, Article 6, clause 2 in total: "This constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution of Laws of any State to the Contrary notwithstanding."
14. The double jeopardy clause of the 5th amendment reads as follows: " . . . nor shall any person be subject for the same offence to be twice put into jeopardy of life or limb".
15. Implicit in VC 14602.6 is the superficially appealing logic that driving on a suspended license justifies immediate seizure of the driver's car, and that 30 days automatic seizure is fair. On its face the statute, although patently unconstitutional, has a ring of justice to it, and the impoundment would be more defendable if the statute did not depend on other DMV provisions that fail to guarantee that a suspension is valid. In fact the suspensions are triggered automatically by the court but the court does not trigger a reactivation automatically upon removal of the reason for suspension - and this constitutes a foreseeable result that a simple report of suspension fails to tell the whole story.
16. As spelled out in Bell v Burson (1971) 29 L Ed 2d 90, 405 US 535, 91 S Ct 1586.
17. VC 14602.6 requires that a "determination" be made. This is a judicial function and must be done by a neutral and detached magistrate.
18. Newspapers and television routinely run stories on January 1 regarding new statutes. The average person does not know that the legislature sometimes knowingly writes statutes that are unconstitutional. The ignorance of constitutional guarantees is even more prevalent in our geographic region disproportionately populated by immigrants who are unfamiliar with English language and heritage, and accustomed to government oppression.
19. Palaschak suffered several recent financial setbacks ultimately resulting in his petition for bankruptcy on 9 February 1996. On plaintiff's birthday, May 8, 1995, the California Supreme Court reversed the decision of the court of appeal in plaintiff's misdemeanor LSD case. See People v Palaschak (May 1995) 9 C4th 1236, 40 Cal Rptr 2d 722, 893 P2d 717. The Supreme Court thereby reinstated plaintiff's misdemeanor conviction for eating LSD. Plaintiff, represented negligently by Attorney Glenn Durfee of Davis, California, immediately asked for a rehearing - or similar remedy. In approximately May 1995, plaintiff's phone was disconnected after Palaschak relied on a client to pay his phone. The phone was reconnected for approximately 10 days immediately prior to July 5, 1995. In late June, plaintiff's landlord, Frank Capell, at 291 South Santa Cruz informed plaintiff that Frank needed the room where plaintiff was living. On July 5 plaintiff hastily moved to 105 East Seaview in Port Hueneme but did not forward the mail there because he did not have access to the mail box and his Chinese roommates did not have the mailbox key either. Plaintiff had no phone at the new address and no money. Plaintiff obtained a post office box in approximately September 1995. Plaintiff drove back to 291 S. Santa to pick up accumulated mail, but Frank had sent it all back to the post office but the post office said they had nothing for Palaschak. No mail was ever forwarded to Palaschak's Port Hueneme post office box despite plaintiff's having filed a forwarding request upon establishment of the Port Hueneme post office box. Apparently plaintiff's request for rehearing was denied by the California Supreme Court who remitted the case back to the Superior Court of Ventura county who gave the case to a new judge who sent a letter to summon plaintiff to a hearing regarding serving of the 90 days as terms of probation in the LSD case. Plaintiff Palaschak did not receive the letter from superior court or any indication from anybody that there was a letter or any court action in the LSD case. On Wed 4 October 1995 plaintiff was arrested by the fugitive detail while walking on a sidewalk in Port Hueneme. Fugitive deputies were not specifically seeking plaintiff, but recognized him while deputies were transporting another fugitive. Plaintiff appeared before Judge Cloninger who released him O.R. in the LSD case. Ventura Judge Purnell released Palaschak O.R. on the Malibu traffic tickets. Plaintiff contends that the O.R. release should rightfully have triggered a reinstatement of any driver license suspension predicated on the failure to appear in Malibu.
20. Edwards v California (1941) 314 US 160, 86 L Ed 119, 62 S Ct 164.
21. Replication of Supreme Court's footnote: See, for example Fahey v Mallonee, 332 US 245, 91 L Ed 2030 (1947); Ewing v Mytinger & Casselberry, 339 US 594, 94 L Ed 1088 (1950).
22. Rios v Cozens (1973) 9 C3d 454, 509 P2d 696 (Originally 7 C3d 792, 499 P2d 979, vacated and remanded at 35 L Ed 2d 398, 410 US 425, on remand 9 C3d 454, the prior opinion reiterated and reinstated) followed Bell v Burson.
23. The statute orders that the "legal" owner be notified but even a lawyer cannot easily understand the DMV's definition of "owner" and "legal owner". Although Palaschak contends that the statute required defendants to give him notice, the statute invites alternative interpretation by the police and therefore the statute promotes just the sort of violation of the constitution that occurred here. The statute must be fixed drafting or by interpretive decisions.
24. The details of the Valencia ticket are the matter of a separate lawsuit. They have been deleted from this case 96-322 for convenience of all.
25. Generally cases of this type are filed by unusual independent people. Deviance has a bad connotation but deviates test the legal bounds and make safe the way for freedom. Rosa Parks was a deviate.
26. The 8th amendment in total: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment."
27. Some pertinent clauses of the Magna Charta are:
Clause #20. A freeman shall not be amerced for a slight offense, except in accordance with the degree of the offense; and for a grave offense he shall be amerced in accordance with the gravity of the offense, yet saving always his "contentment"; and a merchant in the same way, saving his "merchandise"; and a villein shall be amerced in the same way, saving his "wainage" if they have fallen into our mercy: and none of the aforesaid amercements shall be imposed except by the oath of honest men of the neighborhood.
Clause #30. No sheriff or bailiff of ours, or other person, shall take the horses or carts of any freeman for transport duty, against the will of the said freeman.
Clause #38. No bailiff for the future shall, upon his own unsupported complaint, put anyone to his "law", without credible witnesses brought for this purposes.
Clause #39. No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.
Clause #40. To no one will we sell, to no one will we refuse or delay, right or justice.
Clause #41. All merchants shall have safe and secure exit from England, and entry to England, with the right to tarry there and to move about as well by land as by water, for buying and selling by the ancient and right customs, quit from all evil tolls, except (in time of war) such merchants as are of the land at war with us. And if such are found in our land at the beginning of the war, they shall be detained, without injury to their bodies or goods, until information be received by us, or by our chief justiciar, how the merchants of our land found in the land at war with us are treated; and if our men are safe there, the others shall be safe in our land.
Clause #45. We will appoint as justices, constables, sheriffs, or bailiffs only such as know the law of the realm and mean to observe it well.
Clause #48. All evil customs connected with forests and warrens, foresters and warreners, sheriffs and their officers, river banks and their wardens, shall immediately by inquired into in each county by twelve sworn knights of the same county chosen by the honest men of the same county, and shall, within forty days of the said inquest, be utterly abolished, so as never to be restored, provided always that we previously have intimation thereof, or our justiciar, if we should not be in England.
Clause #52. If anyone has been dispossessed or removed by us, without the legal judgment of his peers, from his lands, castles, franchises, or from his right, we will immediately restore them to him;
Clause 355. All fines made with us unjustly and against the law of the land, and all amercements, imposed unjustly and against the law of the land, shall be entirely remitted. . .
28. The term "jury of peers", for example, is not in the constitution but comes from the Magna Charta.
29. Erie v Tompkins (1938) 304 US 64, 82 L Ed 1188, 58 S Ct 817, 114 ALR 1487.
30. Palaschak was a "legal" owner. Palaschak has the "pink slip", the DMV supplied paper memorialization of title to the car. The title was signed over to Palaschak from the previous owner.
31. This statute must be considered with other statutes and law. Palaschak contends that Sniadach v Family Finance and Bell v Burson mandate a pre-deprivation hearing. Also, some cars are more important than others due to exemption. See CCP 703.020 et seq and CCP 473. See CCP 704.010 exempting $1200 in a motor vehicle. See CCP 704.060 exempting tools of trade. See CCP 703.140 b 10 the $7900 "wild card" bankruptcy exemption.
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